Practice Relating to Rule 139. Respect for International Humanitarian Law
In its order in the Ktaer Abbas Habib Al Qutaifi case in 2005, India’s High Court of Gujarat stated:
9. There is no law in India which contains any specific provision obliging the State to enforce or implement the international treaties and conventions including the implementation of International Humanitarian Law (IHL). Amongst the domestic legislation, the only law that directly deals with the principle of IHL is the Geneva Convention Act, 1960. The main objective of the Act is to implement the provisions of the 1949 Conventions relating to the punishment for grave breaches and prevent and punish the abuse of Red cross in other emblems. The apex Court in Rev. Mons. Sebastian Francisco Zavier Dos Remedious Monterio v. State of Goa reported in MANU/SC/0140/1969: 1970CriLJ499a examined the scope of Geneva Conventions Act, 1960 and observed about the efficacy of the Act, thus, (Para 15)
the Act by itself does not give any special remedy. It does give, indirect protection by providing for branches of Conventions. The Conventions are not made enforceable by the government against itself, nor does the Act give a cause of action to any party for the enforcement of the Conventions. Thus, there is only an obligation undertaken by the Government of India to respect the Conventions regarding the treatment of civilian population, but there is no right created in respect of protected persons which the Court has been asked to enforce.
10. However, [the] constitution guarantees certain fundamental human rights to citizens as well as non-citizens. The preamble of the Constitution which declares the general purpose for which the several provisions of the Constitution have been made to, “assure the dignity of the individual” which is also the basic objective of the international humanitarian law …
18. … All member nations of the United Nations including our country are expected to respect … international treaties and conventions concerning Humanitarian law. In fact, Article 51(c) of the Constitution also casts a duty on the State to endeavour to “foster respect for international law and treaty obligations in the dealings of organized peoples with one another” …
PRINCIPLE FOR ENFORCEMENT OF HUMANITARIAN LAW:
19. From the conspectus of the aforesaid, [the] following principle emerges in the matter of enforcement of Humanitarian law:-
(1) The International Conventions and Treaties are not as such enforceable by the Government, nor [do] they give cause of action to any party, but there is an obligation on the Government to respect them.
(2) The power of the Government to expel a foreigner is absolute.
(3) Article 21 of the Constitution of India guarantees right of life on Indian Soil to a non-citizen, as well, but not right to reside and settle in India.
(4) The international covenants and treaties which effectuate the fundamental rights guaranteed in our constitution can be relied upon by the Courts as facets of those fundamental rights and can be enforced as such.
(5) the work of the UNHCR being humanitarian, on certification of Refugee, FS the Government of India is under obligation to ensure that Refugees receive international protection until their problem is solved.
(6) The principle of “non-refoulement” is encompassed in Article 21 of the Constitution of India and the projection is available, so long as the presence of the refugee is not prejudicial to the national security.
(7) In view of directives under Article 51(c) and Article 253, international law and treaty obligations are to be respected. The Courts may apply those principles in domestic law, provided such principles are not inconsistent with domestic law.
(8) Where no construction of the domestic law is possible, Courts can give effect to international conventions and treaties by a harmonious construction.
In 2008, in the Noor Aga case, India’s Supreme Court allowed an appeal against the decision of the Additional Sessions Judge, who convicted an Afghan national of illegal import of narcotic drugs and psychotropic substances to India. While addressing the appellant’s right to fair trial, the Court stated:
Application of international law in a case involving war crime[s] was considered by the Constitutional Court of South Africa in State v. Basson … Basson case, 2004] opining:
The rules of humanitarian law constitute an important ingredient of customary international law. As the International Court of Justice … has stated, they are fundamental to the respect of the human person and elementary considerations of humanity. The rules of humanitarian law in armed conflicts are to be observed by all States whether or not they have ratified the [1949 Geneva] Conventions that contain them because they constitute intransgressible principles of international customary law. The ICJ has also stressed that the obligation on all governments to respect the Geneva Conventions in all circumstances does not derive from the Conventions themselves, but from the general principles of humanitarian law to which the Conventions merely give specific expression.