NIAC Threshold in Central India
In the Tadić [Duško Tadić] case, the ICTY [the International Criminal Tribunal for the former Yugoslavia] affirmed that a non-international armed conflict [NIAC] exists when there is: “protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.” Thus, in the view of the ICTY, for there to be a non-international armed conflict:
non-state armed groups must carry out protracted hostilities; and these groups must be organized.[1]
Rule of Law of Armed Conflicts Project (2012), Geneva Academy, Switzerland
Using this as a standard, we can determine if the Naxal Movement in Central India qualifies as a non-international armed conflict or not. Firstly, does Naxalism meet the protracted hostilities requirement? The movement originated in a village called Naxalbari in West Bengal state in the year 1967. It has continued in various forms, with schisms and numerous divisions over the years that have rendered the original Communist Party of India (Marxist-Leninist) almost unrecognizable, to this day. The movement has never revoked the principle of armed revolution to overthrow the Indian state, although one of its founders, Kanu Sanyal, accepted parliamentary democracy as a state model much later in life. It continues to arm its cadres and target agencies of the state whenever it gets the chance–with the last notable strike coming in April of 2010 when Naxals killed 76 Central Reserve Police Force (CRPF) personnel in the Dantewada District of Chhattisgarh. Therefore, the movement can safely be said to fulfill the protracted hostilities demand.
The second requirement going by the observation made in the Tadić case relates to the organizational structure of the groups taking part in an armed conflict. This is the tricky part, for there have been different things written about the organizational structure of the Naxal movement. Broadly, the Naxals can be said to comprise between 10,000 and 25,000 guerilla cadres and many thousands of villagers armed by the group. The guerilla cadres form the core of the movement and the armed villagers make up the auxiliary structure. There is a hierarchical construction among the Communist Party of India (Maoist)–the political manifestation of Naxalism–in that there comprises a politburo which is the highest decision making body (like any other communist party) followed by the Central Committee; the armed wing is called the People’s Liberation Guerrilla Army–this outfit carries out direct attacks on the state. Also, along with the Red Corridor (parts of Central, Eastern and Southern India under Naxal influence), it is said that the Naxals have now established a “Golden Corridor” which lies in Western India stretching from Maharashtra to Gujarat.[2]
In addition, another criterion for a conflict to meet the threshold of NIAC (non-international armed conflict) is that of intensity. The conflict must have a minimum level of intensity for it to qualify as an NIAC. Does the Naxal Movement meet the intensity requirement? According to the Uppsala Conflict Data Program (UCDP), if a conflict results in 25 battle-related deaths in one year it constitutes an armed conflict (in which one of the parties to the conflict is the state).[3] The movement under study meets this requirement according to the statistics available. This year alone 90 Naxals have been killed by state forces (until November 4) and 99 security personnel have lost their lives;[4] this is apart from the 119 civilians killed during the same period. The state however has resisted from deploying its army in the Naxal-hit areas so as to keep the intensity of the conflict low. The Indian state has in the past succeeded in obliterating Naxalism to a large extent in two of its states, West Bengal and Andhra Pradesh, by using just the police forces. This is important to bear in mind since if a conflict does not meet the crucial intensity requirement, it may be treated as a domestic disturbance or a law and order problem of the state; international humanitarian law in such circumstances would not apply. The intensity clause in the context of this particular conflict is open to argument and there are differing opinions on whether it meets this all-important requirement for it to qualify as an NIAC.
The Indian state
In 2006, Prime Minister Manmohan Singh described the Maoist insurgency as the “single biggest internal-security challenge” India had ever faced.[5] While some experts are not in agreement over this declaration, the Indian state has tried in every way to prevent Naxals from spreading their influence to areas of the country as yet untouched by the movement. After the movement disappeared from the streets of Calcutta in the early 1970s, it has never witnessed a return to any urban centre ever again. The state has succeeded in thwarting subsequent attempts of Naxals at establishing their footprint in the cities and towns of India. Of course, sympathizers and “closet Maoists” (much like the character “B” in Sudeep Chakravarti’s Red Sun: Travels in Naxalite Country) in urban India remain.
The state police and paramilitary forces have been known to carry out massive operations targeting Naxals and their rural supporters in the states of Central and East India, especially in Chhattisgarh. These operations–which the mainstream media like to call “Operation Greenhunt”–are done in such a manner that there is very little information available on them. The number of dead is often not numerated; the state of Chhattisgarh does not keep any record of civilians killed by state forces.[6] To be fair, Naxals, too, have engaged in their fair share of killings; their chief targets being collaborators.
The Indian state, however, does not want to recognize the conundrum in Central India as an NIAC, simply because it would then be expected to treat the Naxals not as common criminals but as an armed political opposition. If it does acknowledge it to be an NIAC, it would tantamount to lending them credence under international humanitarian law–something the state does not want to do. Recognizing the conflict as an NIAC will bring with it obligations not only on the part of the state but also on the part of the Naxals. For one thing, the Indian state will be required to treat captured Naxals as political prisoners (it was only two months ago that a Calcutta court adjudged that the nine suspected Naxals arrested by the National Investigation Agency are “political prisoners”. A month prior to that, the Calcutta High Court held eight suspected Naxals including a senior leader to be political prisoners as well).[7]
Concluding remarks
If one studies the Naxal conflict in India and has modest knowledge of international humanitarian law, one can make a broad conclusion–for all intents and purposes, the Naxal Movement more or less qualifies as an NIAC. One says “more or less” because one of the principal requirements for a conflict of a non-international nature to qualify as an NIAC, as discussed earlier, is intensity. The Indian state, by withholding the deployment of its military in Naxal-hit areas, has made sure that the intensity of the conflict is kept as low as possible.
Common Article 3 of the Fourth Geneva Conventions applies in the case of conflicts “not of an international character”. This lays down certain rules with regard to humanitarian considerations that have to be borne in mind by both state and non-state actors in a conflict situation. This is applicable only in the case of an “armed conflict” and in the absence of a definition for the same, it is left to the state to decide if it is engaged in an armed conflict or not. The Indian state is thus advantaged as far as this is concerned. Also, India is not a signatory to Additional Protocol II (1977) which deals with non-international armed conflicts. This protocol is applicable if the insurgents control territory and are able to carry out attacks from or using the held territory. The Naxals, of course, fulfill this requirement.
It is noteworthy to point out that certain principles of international humanitarian law can still be applied without having to recognize Maoists as political adversaries. In this way, the insurgent outfit need not “gain” anything. That is another option for the state.
Notes
The terms Naxal and Maoist are used interchangeably in this paper; this conforms to accepted usage.
1. Geneva Academy, Rule of Law of Armed Conflicts Project (2012), Switzerland
4. South Asia Terrorism Portal, Fatalities in Left-wing Extremism: 2012, New Delhi
5. Ending the red terror, The Economist (February 25, 2010), London
6. Sethi, Aman, Green Hunt: the anatomy of an operation, The Hindu (February 6, 2010), Chennai
Comparing ICTY [the International Criminal Tribunal for the former Yugoslavia] is not a rational approach for comparing Indian Maoists with ICTY. Author should understand that the Yugoslavia was communist country and was not supporting any other political channels. So for restoring the democracy in the in-humane communism struggle with arms is justified by the Tribunal. But inspite of having availability of various means and methods to address the grievances and achieve the political destiny resorting to to armed conflict is not justifiable. Destroying the democracy for the sake of imposing some sort of communism is always deplorable though out the world and hence Naxal insurgency cannot be equated ICTY. Even idea about equating it suppose to be treated as provocation against the democracy. Although not qualifying for committed crime of provocation agaist the democracy, in the light of freedom of expression guaranteed under the Constitution but it surely qualifies for politically booting out.