Context

Earlier this month, the Supreme Court of India dismissed a public interest litigation (PIL) requesting that the central government halt exports of defense equipment to Israel, citing alleged war crimes in Gaza. The court declined to intervene, emphasizing that foreign policy falls outside its jurisdiction. However, the concerns raised by the PIL extend beyond the situation in Israel and highlight important normative issues, especially in light of India's ambitions to become a leading defense exporter.

Overview

• It's important to note that several countries have restricted defense exports to Israel. For example, a Dutch court mandated the government to halt the export of all F-35 fighter jet parts to Israel, based on a European Union regulation that prohibits military equipment exports if there is a clear risk of use in violation of international humanitarian law (IHL).
• Similarly, the UK government, under the Export Control Act, evaluated Israel’s adherence to IHL amid the ongoing conflict in Gaza. It found a significant risk that certain arms exported to Israel could be used to commit or support serious violations of IHL.

Legal gap

• India lacks a legal framework equivalent to the UK's Export Control Act or EU regulations that mandates an assessment of a country’s compliance with international humanitarian law (IHL) before exporting defense equipment.
• The Indian Foreign Trade Act, 1992, and the Weapons of Mass Destruction and their Delivery Systems (Prohibition of Unlawful Activities) Act, 2005, empower the central government to regulate exports based on various criteria, including national security and international obligations under treaties and conventions.
• While these laws allow for the prohibition of defense exports due to international law commitments, they do not obligate the government to assess IHL compliance of recipient countries. This creates a legal gap.
• The Supreme Court has previously incorporated international law into domestic law to address such gaps, as seen in cases like Vishakha vs. State of Rajasthan. Therefore, this issue should be framed legally rather than merely as a foreign policy matter. The next question to explore is the international law governing arms trade and its implications for India.

International law

• The key treaty relevant to this issue is the Arms Trade Treaty (ATT), which regulates international trade in conventional arms. Article 6(3) of the ATT prohibits a country from supplying conventional arms if it is aware that these arms "would be used" to commit war crimes, among other violations.
• Article 7 requires states to assess whether the arms they export could be used by the importing country to commit or facilitate serious violations of international humanitarian law (IHL).
• Notably, India is not a signatory to this treaty, meaning it is not legally binding on India and cannot be judicially incorporated, although some provisions of the ATT reflect customary international law.

The obligation

• What about India’s obligations under international humanitarian law (IHL)? Common Article 1 of the Geneva Conventions, which is binding on India, requires all states to "respect and ensure respect for" IHL. The International Court of Justice, in Nicaragua vs. United States, clarified that this provision imposes a negative obligation on states, meaning they must refrain from supplying weapons if there is a reasonable expectation, based on facts or past patterns, that those weapons would be used to violate the Conventions.
• Scholars note that the burden of certainty for exporting states regarding the use of their weapons is quite high. When considering India’s domestic laws, the WMDA and the FTA, alongside its IHL obligations, a clear duty emerges not to supply arms to countries likely to misuse them. Rather than deriving this obligation solely from international law, it would be prudent for India to amend the WMDA and the FTA to explicitly evaluate the IHL compliance of countries importing its defense goods, thereby enhancing its credibility as a responsible defense exporter.

Way ahead

• Legal Reforms: Amend the Weapons of Mass Destruction Act and the Foreign Trade Act to explicitly mandate assessments of recipient countries' compliance with international humanitarian law (IHL) prior to approving defense exports.
• Establish Guidelines: Create comprehensive guidelines that integrate IHL considerations into the export approval process, ensuring that exports do not contribute to violations of humanitarian law.
• Enhanced Transparency: Increase transparency in defense export decisions by publishing reports on compliance assessments and the reasoning behind export approvals.
• Capacity Building: Invest in training and resources for officials involved in defense exports to effectively understand and apply IHL principles.
• International Collaboration: Collaborate with international organizations and other countries to share best practices and strengthen adherence to humanitarian standards in defense trade.
• Public Awareness: Raise awareness of the significance of IHL among stakeholders, including defense manufacturers and policymakers, to cultivate a culture of responsibility in defense exports.

Conclusion

the recent dismissal of the PIL by the Supreme Court of India underscores a significant legal gap in India's framework governing defense exports. While other nations assess the IHL compliance of countries before supplying arms, India lacks a similar requirement, raising important normative questions as it seeks to become a prominent defense exporter. Although India is bound by international humanitarian law, particularly through the Geneva Conventions, the absence of specific legal obligations to evaluate IHL compliance creates challenges. To align its export practices with its international commitments and enhance its credibility on the global stage, India should consider amending the WMDA and FTA to incorporate assessments of IHL adherence for importing countries. This proactive approach would not only fulfill its legal obligations but also position India as a responsible player in the international arms trade.

Source: The Hindu