Even wars have rules. Not every person or
object could be targeted during conflict. The civilians especially are termed
as ‘protected persons’ under international humanitarian law (IHL). The
protection extends to their properties as well. Therefore, protection of the
civilians and civilian properties stands as the cornerstone of IHL as
established by ICTY.[1] IHL establishes provisions
for the general protection of civilian objects and property. The law appears well-settled, even though attacks
against civilian’s properties continue to be disturbingly common in armed
conflict.
IHL and Civilians Objects:
IHL protects private property under occupation. This rule is part of customary international humanitarian law (CIHL), binding on all states.[2] Rule 9 defines civilian objects as “all objects that are not military objectives,” whereas Rule 7 creates an obligation upon the parties to the conflict to distinguish between civilian objects (protected objects) and military objectives. Rule 10 further elaborates that civilian objects are protected against attack unless and for such time as they are military objectives. IHL forbids attacks, reprisals, or other acts of violence against such objects.
The Hague Convention of 1907[3] first provided for financial liability against states whose armed forces intentionally destroy civilian property in war. Furthermore, similar liability to extensive destruction and appropriation of property that is not justified by military necessity is considered a grave breach of an article common to all Geneva Convention (GC) of 1949,[4] as well as in the two Additional Protocols (AP) of 1977.[5] Attacks against civilians and their property are prohibited by articles 33 and 53 of the IVGC and by article 52 of Protocol I regardless of who owns them.
Furthermore Fourth GC was designed to protect
property in order to spare civilian populations the sufferings which might
result from the destruction of their houses, clothes, foodstuffs and the means
of earning their livings[6]
had happened at Oradour and Lidice.[7]
Article 18 prohibits attack at any time against civilian hospitals or medical
care facilities.
Indian
Occupied Kashmir (IOK) and Breach of Geneva Conventions:
IOK being one of the most militarized zone of
the world has witnessed the brutalities of Indian occupational forces since
1947. In their hunt for rebels, the Indian
forces deliberately caused loss to civilian’s life and destroyed the private
properties of civilians including their houses, shops, go-downs etc. Forces
have also attacked ambulances and medical supplies over the period of time that
further added to the miseries of people of IOK. Hence, it is safe to say that
the Indian occupational forces never complied with IHL and are continuously
breaching four GC’s.
Homes
are frequently destroyed by Indian Troops to flush out militants during CASO in
Kashmir.
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Between 1989 and 2001, at least 5,368 buildings, including shops, houses and other privately-owned properties in the region, were heavily damaged in counter-insurgency operations. An arson was carried out in Lal Chowk Srinagar in 1993 which burned the whole area killing 125 innocent Kashmiris and destroying 59 residential houses, 190 shops, 53 go-downs, 2 office complexes, 2 schools and a shrine.[8] Indian occupational first caused the destruction and then also stopped any aid to help the victims. It is forbidden to prevent goods from being supplied or to hinder relief operations delivering such supplies under IHL.[9]
Homes are frequently destroyed by Indian
troops attempting to flush out militants during cordon-and-search operations in
Kashmir.
During
civilian uprisings of 2008, 2010 and 2016, Indian forces deliberately attacked ambulances, assaulted doctors and
paramedical workers and cracked down voluntary aid workers.[10]
They stopped
vehicles carrying injured Kashmiris towards hospitals violating several
provisions of IHL. The free passage of objects indispensable to the survival of
the civilian population is guaranteed by IHL but Indian forces yet gain
breached the provision of IHL. [11] According to official data
accessed by India Spend,[12]
in South Kashmir’s Pulwama district alone, at least 105 homes were destroyed during
gunfights between 2015 and March 2018. Gunfights across Kashmir follow the same
routine: homes reduced to rubble, vast funerals for militants, people thronging
the sites of the gunfights. Indian forces are using disproportionate force
lowing up or burning houses. [13]
On April 10 and 11 of 2018, Indian soldiers set four houses and two shops on
fire as they engaged in a gun fight with militants. After a month, soldiers
burned down three houses in Turkwangam South Kashmir.[14]
The brutalities of Indian forces are at its peak after the enforcement of new domicile law in IOK by Indian Govt .Occupational forces burnt residential house of a freedom fighter in IOK by spraying gasoline & setting light to burn it down. This barbaric act is a breach of IHL. pic.twitter.com/lgbaRaYDaW— Legal Forum for Kashmir (@lfovkofficial) April 9, 2020
Recently on 8th April 2020, a video clips showing armed
forces damaging house of a militant emerged on social media. It was tweeted
several times. The army personnel were using gasoline and flamethrowers meant to blow up the house entirely.
Indian occupational forces laid siege to Arampora village in northern Baramulla
district after cordoned and search operation (CASO) and killed a militant
Sajjad Ahmed Dar. Later, they demolished his house and killed his livestock.
When we refer to the definition of “civilian objects”
under CIHL, it is crystal clear that the, residential houses, shops,
go-downs, office complexes and schools all fulfil the criteria of being a
civilian object. None of the civilian properties damaged by the Indian
occupational forces were being used to fulfill any military objective. Hence
Indian forces targeted civilian objects in the conflict whereas it was bound to
distinguish between civilian and military objects.[15]
The trial chamber endorsed in the Blaskic case that the attacks that have
caused damage to civilian property and targeting civilian property is an offence when not justified by
military necessity.[16]
Indian forces are shamelessly committing this offences in IOK since decades. The
search party during so-called operations against militants finds building clear
but still they burn it down. Even if militants are present they lack arms and ammunition and they are not capable of
causing injury to armed forces. There has been no evidence of use of
these premises in IOK for an effective contribution
to military action and no military advantage has been gained through
these buildings. Therefore these properties
cannot be termed as military objects.[17]
If we add the element of the military necessity it has been endorsed by
ICC in Prosecutor V. Jean-Pierre Bemba Gombo[18]
that it consists of those measures which are indispensable for securing ends of
war. But in the case of IOK, the forces try to ensure clean operations. The methods used to expedite operations involve
tossing improvised explosive devices inside houses The Army uses flamethrowers
and no warning is given to militants. The disproportionate
use of force itself
explains the misuse of principle of “military necessity”.
As already discussed Indian forces have deliberately caused
extensive damage to houses and business premises of Kashmiri Muslims. Not only
have this but soldiers have created terror among people of IOK and also looted
them. The extensive destruction and appropriation
of property in IOK is not justified by military necessity and is carried out
unlawfully and wantonly. This vandalism of property is breach of 4th
GC and CIHL. According to Article 8(2)(b)(ii) of the Rome Statute 1998 ,
deliberate attacks on civilians and civilian objects are prohibited and amounts
to war crimes. Therefore, the state of India is committing war crimes in the
Muslim majority territory of IOK.
India being a high contracting party to all
four Geneva Conventions cannot absolve its responsibility for the war crimes. Although
India is not a party to Rome Statute but ICC prosecutor can take cognizance of
the war crimes in IOK by initiating investigations proprio motu under Article 15 of the Rome Statute. I therefore
urge prosecutor of the ICC Ms Fatou
Bensouda to immediately initiate an impartial and independent
investigation against war crimes in IOK by world’s so called largest democracy
of India. All the war criminals shall be exposed
and prosecuted as such.
It’s high time for
humanitarian organizations like ICRC and the National Societies of the Red Cross and Red Crescent to realize
their duty and prevent and alleviate sufferings of oppressed voices of Muslim
majority state of Indian Occupied Kashmir keeping in view their mandate under
Geneva Conventions.
Advocate Laiba Amjad
Advocate Laiba Amjad
The author is currently affiliated with Legal Forum for Oppressed voices of Kashmir as a socio- legal research associate.
Copyright @ Legal Forum for the Oppressed Voices of Kashmir
[1]
Prosecuror v. Kupreskic, Case No. IT-95-l6, Judgment, 521 (Jan. 14,2000).
"The protection of civilians in time of armed conflict is the bedrock of
modern humanitarian law”.
[2]
International Committee of the Red Cross (ICRC) Customary IHL Database, Rule 50
[3]
Article 47 of the Hague Convention of 1907, pillaging, imposing collective
punishment and destruction of public and private property of protected persons
is prohibited,
[4]
An article GCI Art. 50, GCII Art. 51, GCIII Art.
130, and GCIV Art. 147 common to all four Geneva Conventions of 1949
notes that " High Contracting Party shall be allowed to absolve itself or
any other High Contracting Party of any liability incurred by itself or by another
High Contracting Party in respect of breaches referred to in the preceding
article [on grave breaches”
[5] Article
91, Additional Protocol II "A belligerent party which violates the
provisions of the said regulations shall, if the case demands, be liable to pay
compensation. It shall be responsible for all acts committed by persons forming
part of its armed forces."
[6]
Lea Brilmayer and Geoffrey Chepiga, Ownership or Use? Civilian Property
Interests In International Humanitarian Law, Harvard Lae Journal, Volume 49.
Number 2, 2008
[7]
Oradour-sur-Glane (France) and Lidice (Czechoslovakia) were sites of Nazi
massacres of civilians during World War II.
[8] Edward
A. Gargan, The New York Times, Indian Troops Are Blamed As Kashmir Violence Rises, April 18, 1993; Rule
38 of CIHL states “Religious and cultural property should be respected whether
or not it is marked with a sign.”
[9] API Art. 70; APII Art. 18; Rule 55 of the customary
IHL.
[10]
Annual Human Rights Reviews of JKCCS of the year 2008, 2010 and 2016.
[11] GCIV Arts. 59, 17, and 23; API Art. 70; APII Art. 18; Rule 5
and is linked to the independent monitoring of distribution by the entity
supplying the objects.
[12] India Spend is a non-profit and a project of The
Spending & Policy Research Foundation located in Lower Parel in Mumbai, and
registered as a Charitable Trust with the Charity Commissioner, Mumbai.
[13] Rayan Naqash, Breaking
people’s will’: In Kashmir, gunfights leave a trail of destroyed homes and
rising anger, Sep 20, 2018. Available on https://scroll.in/article/894739/breaking-peoples-will-in-kashmir-gunfights-leave-a-trail-of-destroyed-homes-and-rising-anger
[14] Zafar Dar, Why Indian forces are setting houses on fire
in disputed Kashmir, 19 November 2018. Available at https://www.trtworld.com/magazine/why-indian-forces-are-setting-houses-on-fire-in-disputed-kashmir-21776
[15] Rule 7 of CIHL creates an obligation upon the parties
to the conflict to distinguish between civilian objects (protected objects) and
military objectives
[16]
Blaskic, IT-95-14-T, Judgement (“Blaskic Trial Judgement”), 3 March 2000,
para. 180, Judicial
Supplement No. 13.
[17]
Rule 8 CIHL “military objectives are limited to those
objects which by their nature, location, purpose or use make an effective
contribution to military action and whose partial or total destruction, capture
or neutralization, in the circumstances ruling at the time, offers a definite
military advantage”
[18] International Criminal Court, Trial Chamber
III, No.: ICC-01/05-01/08, Prosecutor v.
Jean-Pierre Bemba Gombo, 21 March 2016, available at: https://www.icc-cpi.int/CourtRecords/CR2016_02238.PDF
Trial Chamber, endorsed the definition of military necessity
set out in Article 14 of the Lieber Code, which provides that “[m]ilitary
necessity, as understood by modern civilized nations, consists in the necessity
of those measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war”
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