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Extraordinary Legislation in Armed Conflict
Situations:
By Prof Naorem Sanajaoba
There has been a lot of discussion on terrorism for the last few months. Terrorism is a crime against man. They do not spare the innocent lives. So even child terrorist are also responsible in the act. And we have very little sympathy for little child terrorists. This is the first thing to be kindly noted. At the same time, the international community has not been successful in finding a solution since 1954. The community must rise in such an occasion and in tackling the issue, an actual definition of terrorism is required.
The people in the international community should have the opportunity to act on terrorism and aggression unblurred by blind and mistaken patriotism and fanaticism, casteism, racism as well as colonial instincts which may be disguised as unfounded patriotism the world over. Now, regarding the terrorism, everyone in the international community will have not two opinions about the UN's Security Council resolution 1373 and 1377 and the child terrorist also should know that they should not join terrorism for unjustified reasons. I think that we all are quite clear in the issue and there should not be any room for blurring legitimate and political action from terrorism.
Secondly, non-international armed conflicts; civil wars are characterizing the civil society in Sri Lanka, Burma, Kashmir, Punjab and the North-East states of India and the world over. Now, non-international armed conflicts are, by and the large, governed by domestic law but at the same time domestic laws are found to be inadequate, so the Geneva Conventions should be addressed by the governments and there lies the responsibility of the States. States should not abandon their responsibility to follow Geneva Conventions No. 1 to 4 and additional protocols 1 and 2.
Especially for the Government of India, she is yet to sign additional protocols 1 and 2 and at the same time Government of India has enacted the Geneva Convention Act 1960 which is very much practically defunct and in the event of grave breach of Geneva convention of 1960, capital punishment should be meted out to commanders of the armed forces of India, but till so far, we have not found any evidence for enforcing Geneva Convention Act, 1960 to armed forces for the breach of International Humanitarian law. So, Geneva Convention calls for immediate amendment. That has to be done in a war footing as agenda no. 1 by the Government of India if the Government of India wants to rely on international credibility and its obligations to the international community.
Municipal laws are inadequate and the state has to abide by Humanitarian laws, Martens clause, Geneva Convention 1-4 and additional protocols nos. 1-2. I think I am quite clear in idea for children in armed conflict. The primary law is the domestic law to be supplemented by Conventions and Humanitarian law. Regarding International armed conflicts and war of national liberation, it is quite clear that, it is between states. War is outlawed by UN Charter, but I have not seen or heard any country that has abandoned war as a political means to pursue their policies and domestic requirements. And as regards USA, it has invaded at least 55 countries since 1945. It is clearly on the record. So invasion in any independent country barring hot pursuit is not legitimate in law.
Till now, we have not heard of any country, which has not violated the UN Charter. They should follow the charter. Secondly, war of national liberation is a de-facto process, which has happened all over the world since 1945. Whether war of national liberation should be characterized as civil war, or non-international armed conflict could be a matter of domestic debate. There is enough room for discussion. But, international humanitarian law established by now has accepted that legitimate non-international armed conflicts, legitimate war of national liberation should be considered on the level of international armed conflict, as they are good as the traditional wars. So the child soldiers should be looked after in the war of national liberation as combatants and there arise not only the responsibility of the state but also the responsibility of armed opposition groups, dissident armed groups, non-state entities, and opposition groups. We call them national liberation guerrillas or otherwise militants in the language of the government.
It is not only the state to which the Convention is binding, but the non-state entities have to accept moral irresponsibility for the violation of Humanitarian Laws, and when we speak this, we have concern for legitimate national liberation movements in mind which want to form states. Those who want to form states should, from the very beginning of the movement, have to prove they are not delinquent in any terms. That is why non-state actors have to sign common Article 3 of the 4 Geneva Conventions and if possible, if there is high intensity armed conflict; the Protocol no. 2 should also be signed. Responsible international behavior is expected of commanders of war of national liberation whereas terrorists might be irresponsible.
In all forums where I have access to, we have been repeatedly reminding any individual, organization in camera or through media that non-state entities should not abdicate their humanitarian responsibility if there is a legitimate political goal they pursue. If they say, we are terrorist and we are militants, we want to create problems in South Asia, then we have the least business with them. But, if they say that we want to exercise the legitimate right to self-determination by using military means and they want to exercise it, then it is the responsibility that arises. Responsibility and rights should go together. Without international responsibility, no non-state entities should go as driverless vehicle. They should accept the minimum responsibility.
It is also true that some of them have argued very nicely that since they have not created a state or a government, why we should accept international responsibility. That argument is lawfully true. Only the states are parties to binding international treaties. The argument is true, but the moral argument is never true, as they want to enjoy the credibility of the people and credibility of the international community and at the same time they have their own legitimate political goal in that case without exercising little bit of responsibility towards the innocent civilians, towards the civil property, towards the conduct with the opposite armed forces, may be state forces, and without this, they cannot define the legitimate political action. Wise people from their groups will surely accept my idea. I hope this will be very helpful in the political definition of their political goal. This is in relation to child soldier.
Regarding the Right to Self-Determination and the war of national liberation, yes, many people in the high ups in North block, South block, most of the time confuse the mass media in India and outside as if right to self determination is terrorism. This is the gravest and greatest mistake, they have committed. India is a party to the binding agreement known as International Covenant on Civil and Political Rights, 1966 of which Article 1 is the Right to Self Determination and so, the Government of India is bound to honor its commitment.
For your information, on the
26th September 2000, India represented to the 4th Committee of the United Nations General Assembly that she would honor the Right to Self Determination. The Government of India should never mistake the world Self Determination as Terrorism and disown the Covenant. Because Right to Self Determination is a binding covenant to the Government of India, except that India can withdraw itself from the international treaty. I think I am quite clear in reading the law unlike the political misinterpreters of the Covenant.
Regarding the International laws Mr. Rory Mungoven has just spoken about the Convention on the Rights of the Child. Now, I take up the draft Protocol, which will be a binding treaty by February 2002 - Optional Protocol to Convention of the Rights of the Child. I will read it out. "All parties shall take all feasible measures to ensure that members of the armed forces who have not reached the age of 18 years do not take a part in direct hostilities." And this is about the State's responsibility under the optional protocol to the Convention on the Rights of the Child.
Please note the Article 4 of the Optional Protocol.
Article 4, clause 1: Armed groups distinct from the armed forces in the state should not under any circumstances recruit or use persons in hostilities under the age of 18 yrs.
Article 4, clause 2: State parties should take all feasible measures.
Article 4, clause 3: The application of the present article under this protocol should not affect the legal status of any party to the armed conflicts. So, armed groups also should understand that their political status will be not be prejudiced even if they strictly follow Article 4 clause 1 of the Optional Protocol to the Convention on the Rights of the Child. So, they cannot recruit any child under the said age of 18 years. I think I am clear to the point.
To
be continued...
(Courtesy: The Imphal Free Press) |
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