Editorial 1: Indian military export to Israel — aiding genocide
Context
The top court’s dismissal of a petition on the subject highlights the limits of judicial review over executive decisions in matters of foreign policy, especially in violations of humanitarian law.
Introduction
A Bench of the Supreme Court of India, headed by the Chief Justice of India, recently dismissed a petition filed by former civil servants, academics, and activists. The petition, in Ashok Kumar Sharma and Others vs Union of India, had sought the suspension of existing licences and the withholding of further licences by the government to public sector and private companies, for exporting military equipment to Israel during the ongoing war. While the Court made it clear that it was not ruling on the merits of the case, it went on to issue a somewhat detailed judgment. The dismissal raises important questions about the limits of judicial review over executive decisions in matters of foreign policy and especially where there are grave violations of international humanitarian law.
The ICJ Opinion
- Challenge in view of the International Court of Justice (ICJ): in January, ordering provisional measures against Israel, for violations in the Gaza strip, of obligations under the Genocide Convention.
- The provisional measures: included an immediate halt to all killings and destruction being perpetrated by Israel.
- The US Intervention: In light of this judgment, United Nations experts warned against the transfer of weapons to Israel which may “constitute serious violation of human rights…and risk State complicity in international crimes”.
- Key observations by ICJ: In July, the ICJ rendered a detailed opinion declaring that the sustained abuse by Israel renders “Israel’s presence in the Occupied Palestinian Territory unlawful”.
- The ICJ observed that “all States are under an obligation not to render aid or assistance in maintaining the situation created by Israel’s illegal presence”.
- Other ICJ adjudications: In a case having the military support by Germany to Israel (Nicaragua vs Germany), the International Court of Justice (ICJ) focussed on the importance of adhering to international obligations regarding arms transfers to prevent violations of conventions.
- Global challenges: Following this there have been challenges to the export of arms to Israel in various global jurisdictions,
- Dutch rulings: With the Hague Court of Appeal ordering the Dutch government to halt the export of F-35 fighter jet parts to Israel given the risk that “components to be exported to Israel will be used to commit serious violations of international law”.
- Global responses: Many countries that are parties to the Geneva and Genocide conventions have halted the supply of military equipment to Israel, in furtherance of these binding obligations.
- Canada, Spain and even the United Kingdom have suspended licences of companies supplying arms to Israel.
- Indian response: As a party to these Conventions, India has similar obligations incumbent upon it. India is obligated under the Genocide Convention to take all measures within its power to prevent genocide.
- Article III of the Convention makes states’ complicity in genocide a punishable offence.
- The obligation not to supply weapons to states that are possibly guilty of war crimes is an obligation directly based on common Article 1 of the Geneva Convention.
- The principles in these Conventions are peremptory norms of international law.
- India, therefore, cannot export any military equipment or weapons to Israel, when there is a serious risk that these weapons might be used to commit war crimes.
Where the Supreme Court failed
- India’s Obligation towards domestic law: In its judgments, the Supreme Court of India has held that India is under obligation to interpret domestic law in the light of the obligations under the conventions and treaties that India has signed and ratified.
- Court’s ruling on international obligations: However, the Court while dismissing the present case has held, that first, international obligations are not binding, since the country (Israel) which is in violation of international law (the Genocide Convention), was not before the Court.
- Lack of Impact from Israel’s non-involvement: The state of Israel not being a party before the Court in such a challenge is irrelevant, since no relief was being sought against Israel, but against the government of India and private companies exporting arms to Israel, thereby violating international law obligations.
- Petitioners allegations: The Court further stated that the petitioner’s submissions were with regard to the “conduct of an independent sovereign nation, namely Israel” and that to grant the reliefs sought, it would have to enter findings with regard to the petitioner’s allegations against Israel.
- Allegations on India: Again, the allegations by the petitioner were with respect to the conduct of India in sanctioning military exports, thereby abetting genocide.
- ICJ view on Israel’s conduct: And the determination of the conduct of the state of Israel was premised on the ICJ, that had in a detailed order of the full court, while ordering provisional measures against Israel, noted the numerous reports by UN Special Rapporteurs and international aid organisations documenting how Gaza was a place of “death and despair”.
- ICJ interpretation w.r.t Global human rights: The Court’s rationale is also indefensible given its judgments that “Constitutional provisions must be read and interpreted in a manner which would enhance their conformity with the global human rights regime…and the Court must adopt an interpretation which abides by the international commitments made by the country particularly where its constitutional and statutory mandates indicate no deviation” (2017) 10 SCC 1.
- ICJ interpretation on the obligation of states: It also held that states that are party to a particular convention “whether or not it is a party to a specific conflict, is under an obligation to ensure that the requirements of the instruments in question are complied with.” (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), pp. 199-200, paragraph 158).
- Humanitarian law principles: Such an obligation “does not derive only from the Conventions themselves, but from the general principles of humanitarian law to which the Conventions merely give specific expression” (Nicaragua vs United States of America).
- Contract breaching: the Court reasons that seeking a suspension of licences with regard to contracts with international entities, including with the state of Israel, may involve a breach of contracts and other fallouts.
- Certainly, that is what the petitioners prayed for — a halt to all licences for the export of military arms to Israel in view of the genocide and yes, pending contracts.
- The Court’s fear that this would lead to a breach of contract is misplaced, because any party to a contract to export of arms can always claim force majeure (here, due to the outbreak of a war and genocide by Israel).
- The same situation would arise if the Government of India were to itself suspend the licences, which it can do in such situations, as done by many other countries.
- Preventing genocide: Being aware of the serious risk that acts of genocide could have been committed by Israel, the government is bound to employ all means reasonably available to it to prevent genocide, which would include suspension of export licences for military aid to Israel.
- No contracting party can argue and let alone the court endorse as it does in this case, that licences cannot be suspended by the government (in a situation of genocide) because it affects the “financial viability” of the companies concerned.
- Self-imposed restraint on Courts entering areas of foreign policy: India has binding commitments under international law, especially in the context of the application of Conventions that it has signed and ratified.
- When the Supreme Court has determined that international law obligations compatible with domestic law must be integrated into national law, it is the Court’s duty to use its judicial discretion to address violations by the executive government.
Conclusion: The Fallout
In the midst of an unimaginable humanitarian crisis in Palestine and the international outcry against Israel’s continuing genocide, the Supreme Court’s failure to ensure that the Indian government halts its military aid to Israel and complies with its commitments under international law, will have serious repercussions in this war and its devastation that continues unabated. The top court’s dismissal of a petition on the subject highlights the limits of judicial review over executive decisions in matters of foreign policy, especially in violations of humanitarian law. The Supreme Court’s dismissal highlights the limits of judicial review, risking further deterioration of the Palestinian crisis due to India’s ongoing military aid to Israel.
Editorial 2: Women-led development in the Rajya Sabha
Context
The Rajya Sabha under Jagdeep Dhankar’s chairmanship is leading by example in translating the ideal of women-led development into a reality.
Introduction
The phrase ‘women-led development’, which was recognised as one of the six focal points during India’s presidency of the G20, has always been a cornerstone of the government’s priorities and policies. Under a women-led development approach, women are not just beneficiaries of development, but also set the agenda for development. They are key participants in planning and decision-making.
What are the women centric measures taken?
- Women inclusive democracy: At a time when women are leading governance and development initiatives across the world, India’s legislature, a pivotal organ of its democracy, cannot afford to be left behind.
- Vice-Presidents women led intervention in the proceedings of house: VP has introduced a slew of progressive measures in the proceedings of the House as well as in the Secretariat.
- Mr. Dhankar has always held the view that the role of women in Parliament is enormous.
- He has stated that women are the backbone of Parliament and the country’s economic development.
- The Nari Shakti Vandan Adhiniyam (Women’s Reservation Bill), 2023: Mr. Dhankar, in a historic move, reconstituted the panel of vice-chairpersons to include only women.
- Local and global positioning of women: He emphasised that this would “send a powerful message to the world at large and it would symbolise that they held a ‘commanding position’ during this epochal moment of change”.
- Women nomination increased: Mr. Dhankar also began the practice of nominating four women members, who constitute 50% of the panel of vice-chairpersons.
- Phangnon Konyak became the first woman Rajya Sabha member from Nagaland to preside over the House.
- Eminent athlete P.T. Usha also created history by becoming the first nominated MP in history to become the Vice Chairperson of the Rajya Sabha.
- Under India’s G20 presidency: The G20 New Delhi Leaders’ Declaration underscored that investing in the empowerment of all women and girls has a multiplier effect in implementing the 2030 Agenda for Sustainable Development.
- Gender Equality: India is already working tirelessly towards goal 5.5 of the Sustainable Development Goals, which calls for “women’s full and effective participation and equal opportunities for leadership at all levels of decision-making in political, economic, and public life.”
The Rajya Sabha Secretariat is expected to set the highest standards in this direction.
Initiatives in the Secretariat
With the aim of striking a gender balance at the Rajya Sabha Secretariat, Mr. Dhankar has started many new initiatives.
- Breaking the stereotypes from male focussed to women oriented duties: The sections related to House duty were conventionally considered a male domain because they involved late sittings.
- Now efforts are made that all the gazetted women officers of the Secretariat were trained to perform House-related duties.
- Empowering the women staff: Today, the Table of the House is largely being ‘womanned’ by female officers.
- Accordingly, a duty roster is prepared and women officers are deputed on chamber duty.
- Moreover, an application-based system called ‘Vahan’ was introduced to address the problem of commutation during late sitting hours.
- Through this app, women officers can avail themselves of commutation facilities during odd hours.
- In addition, through a process of selection, some women officials of the Secretariat have been appointed as chamber attendants. This has created a favourable atmosphere even inside the House for women MPs.
Women led growth is the future
- Progressive moves in Rajya Sabha: During various interactions with the officers of the Secretariat, Mr. Dhankar has unequivocally stated that women-led development is going to be the future road map of the Rajya Sabha Secretariat.
- Rise in leadership roles for women: Women officers have been appointed in key positions and leading roles in the Rajya Sabha Secretariat.
- Placing trust in women’s capacity: Responsibilities such as human resources, the legislative section, and the capacity-building division have been entrusted to women officers of the Secretariat.
- High skill-based work: Such as officiating in Parliamentary Standing Committees of the Rajya Sabha is being done by women at various levels.
- Occupation of senior positions: In security service are being occupied by women officers. Top performing women officers are being recognised and rewarded all across the services.
Way forward
Bellow mentioned events give women many opportunities to showcase their talents:
- Gender iensitization Initiatives: The selection of a woman officer as a master trainer for iGOT-Karmayogi Bharat is just a part measure towards bringing gender balance in the Secretariat which is commendable.
- This initiative shows the efforts that the Secretariat is doing to promote inclusion and a positive working environment.
- Promoting innovation: The Chairman, from time to time, has also impressed upon the need of synergising work with creativity and recreation. The celebration of women’s day in the Secretariat is a case in point.
- Women-Centric measures on workplace culture: Women’s day programmes are conceptualised, organised and executed by women officers or employees.
Conclusion
In a vibrant democracy, it is healthy to have regular interactions between the legislature and academia. The buck should not just stop at the Secretariat. Therefore, Mr. Dhankar offered to invite five interns from Miranda House in Delhi for a 15-day course on parliamentary procedures. The Rajya Sabha under Mr. Dhankar’s chairmanship is leading by example in translating the ideal of women-led development into a reality. This may pave the way for other legislatures in India to follow suit. This will enable India to progress towards Vikasit Bharat @ 2047.
