Non-Compliance with Humanitarian Agreements

[Srinivas Burra is an Assistant Professor at the Faculty of Legal Studies, South Asian University, New Delhi.] 

Agreements facilitating humanitarian access to persons deprived of liberty play a significant role in promoting humanitarian principles in armed conflict situations. This post deals with the Memorandum of Understanding (MoU) between India and the International Committee of the Red Cross (ICRC) and the consequences of its non-compliance.

Premised on the idea of humanity, the protection of victims of armed conflict who are deprived of liberty constitutes one of the fundamental principles of international humanitarian law. Access to these victims is an essential condition for extending the necessary protection. Access to persons who are deprived of liberty in relation to conflicts is a critical humanitarian concern. The Geneva Conventions of 1949 underline the importance of access to victims and recognise the role of humanitarian organisations like the ICRC. The right of the ICRC to visit detainees in international armed conflicts is provided for in the Third (Article 126) and Fourth (Articles 76 and 143) Geneva Conventions. When it comes to non-international armed conflicts, no such similar provisions exist.  However, in accordance with Common Article 3 of the Geneva Conventions, the ICRC may offer its services to the parties to the conflict.

Access to Victims of Conflict and Confidentiality

It is well established that the ICRC conducts its activities, particularly relating to the protection activities concerning detainees, based on confidentiality. Confidentiality is premised on the understanding that the ICRC does not disclose the information that it gathers to anyone other than to the authorities responsible for the protection of detainees. This is essentially premised on the understanding that the authorities who are exercising control over the detainees would facilitate ICRC’s access when they have an assurance that the information about the victims’ condition would not be made public and would be shared only with them. This helps to gain the confidence of the authorities leading to access to victims. In the larger interest of victim protection, confidentiality is an important humanitarian method of engaging with authorities.  International courts and tribunals as well recognise the importance and necessity of ICRC’s confidentiality approach.

However, the confidentiality approach is not considered absolute from a humanitarian point of view. ICRC believes that the principle of confidentiality is a means to an end. It has importance ‘only if the ICRC is convinced that the authorities are willing to cooperate with it and that confidential bilateral dialogue can result in an objective benefit for the victims of violence.’ It means that confidentiality as a mode of humanitarian engagement is dependent on it yielding the humanitarian result of the protection of victims. In certain circumstances, it is possible that confidential bilateral engagement may not result in a concrete result of protection to victims. Repeated representations to the concerned authorities may not lead to any improvement in the condition of protection to the victims. When it is convinced that the bilateral engagement is not improving victims’ condition in detention, ICRC breaks from its well-established method of confidentiality. In such situations, it resorts to divulging the humanitarian situation. ICRC undertakes this in two critical stages. These are (1) mobilisation of third parties, and (2) public denunciation of the violations committed and/or the quality of the dialogue with the authorities concerned. Firstly, through mobilisation, ICRC divulges information about the humanitarian situation and international humanitarian law violations to the third parties. These third parties may include governments of third countries, international or regional organisations, or persons who, in the opinion of the ICRC, may influence the behaviour of parties to a conflict. ICRC resorts to mobilisation with a view to making humanitarian conditions better. However, despite its mobilisation efforts, if authorities do not bring necessary changes, the ICRC goes to the next level of public denunciation. The public denunciation takes place when major violations continue to occur despite repeated representations.

India-ICRC Memorandum of Understanding

India and the ICRC entered into an  MoU on 22 June 1995. Through this MoU India has agreed to ICRC’s request to be allowed to have access to detained persons in connection with the prevailing situation in Jammu and Kashmir. In accordance with this MoU, the ‘ICRC delegates shall be allowed to visit all individuals arrested, detained, imprisoned in connection with the situation prevailing in J&K …under any law to that effect by any authority operating under the responsibility of the State Government or the Government of India.’ Some important features of this MoU are worth noting. First, though it is named as MoU, it carefully uses the binding language where it is necessary. It uses the word ‘shall’ when it refers to the obligations of India in articles 2(1), 3(1), 3(2), 4(1) and 4(5). It uses similar language in articles 5(4) and 5(5) imposing obligations on the ICRC. Second, The MoU does not specify the time limit for its validity, however, provides the provision for termination by either party giving written notice to the other. Third, the MoU does not specify the nature of the conflict. It refers to it as ‘prevailing situation in Jammu and Kashmir’. These features inform that the MoU is binding on both parties with its clearly spelt out obligations. It would remain valid till it is terminated in writing. As it does not specify the nature of the conflict and, hence, its applicability is not specifically subjected to any particular legally defined conflict situation. ICRC visits detained persons mainly in relation to armed conflicts. Though the MoU does not explicitly allude to any international law provision, its preamble, when it states that India ‘has agreed to ICRC’s request’, is closer to Common Article 3 of the Geneva Conventions, which envisions the ICRC’s offer of services to the parties to the conflict.

Non-Compliance with India-ICRC MoU

In accordance with the MoU, the ICRC started its visit to detainees on 30 October 1995 and by the end of that year visited 693 detainees. As its annual reports show, ICRC continued its visits to detainees without interruption till 2016 and visited several thousand detainees. However, ICRC’s 2017 annual report states that it ‘did not visit detention facilities in India, as it did not receive official permission for doing so.’ Its 2018 and 2019 annual reports state that it remained without access to detention facilities. The annual reports do not specify the reasons for denial of access to visits. It is clear from the reports that for the last three years the government of India has not provided access to the detainees. Going by the publicly available ICRC reports, both sides have not terminated the MoU. Hence, the access is denied by the government of India despite the MoU in operation. Going by the ICRC’s standard policy, it is fair to expect that the ICRC might have taken it up with the Indian authorities seeking access to the detention centres in accordance with the MoU.  Denial of access is clearly in violation of the obligations under articles 2(1) and 3(1) of the MoU. Therefore, the question that arises is whether the situation warrants applying the ICRC’s standard methods applicable to the cases of deteriorating humanitarian conditions in situations where it has access and made repeated representations.

What Consequences for Non-Compliance with the MoU?

This situation looks different from other situations in which access is provided; however, detention conditions do not change despite the repeated representations from the ICRC delegates. While it is true that the denial of access in accordance with an existing MoU is not the same as refusal to improve the humanitarian conditions, their net result is fundamentally not different as both jeopardise the humanitarian conditions of detainees. The ICRC resorted to the method of mobilisation of third parties concerning Jammu and Kashmir’s situation in the past. Wikileaks revealed that the ICRC shared the information regarding prison conditions in Kashmir with the United States embassy in 2005. According to the diplomatic dispatches obtained by Wikileaks the ICRC apprised to the US diplomats about electrocution, beatings and sexual humiliation of detainees in Kashmir. The present situation in Jammu and Kashmir is no less grave than what it was in 2005, though the nature of violations might vary. It is necessary that the ICRC should take into consideration the prevailing political situation in India in relation to Jammu and Kashmir. Jammu and Kashmir’s status in Indian State underwent a change when it was made a union territory on 05 August 2019. The ICRC’s 2019 annual report itself states that the ‘Indian government revoked Jammu and Kashmir’s special status, changing it from a “state” to a “union territory”. This was preceded by prolonged restrictions on movement and a communications blackout; thousands of security forces were mobilized…Thousands of people were reportedly arrested and/or detained.’ The response of the domestic judiciary on the allegations of human rights violations in Jammu and Kashmir, particularly after the change of its status, has been almost abysmal.  It is rightly observed that the Indian judiciary, like its counterparts under right-wing populist governments in other countries, has been deteriorating. It is arguably turning into the mode of judicial barbarism.

There can be a legal ambiguity in the law of treaties about the nature of agreements between States and the ICRC and the legal consequences of its violations. However, the public pronouncement of non-compliance by States may not pose any legal challenge to the ICRC. When there is a formal humanitarian agreement, it acts as a legitimising factor for States and non-state groups in situations of conflict and violence. An organisation like the ICRC, with its long humanitarian legacy, contributes to this legitimacy when it is a party to these agreements. States and non-state groups are expected to reciprocate through upholding humanitarian principles in accordance with the humanitarian agreements. When they fail to comply with these agreements, ICRC needs to respond to the situation by resorting to appropriate methods of pointing out the failure in the larger interest of the victims. The government of India’s denial of access to the ICRC to visit the places of detention for the last three years is certainly a legitimate ground for the ICRC to break from the method of confidentiality and resort to public disclosure of this non-compliance and its humanitarian consequences. Failing which, it not only adds to the humanitarian woes of the victims, it also has the potential to delegitimise other humanitarian and human rights actors.

The ICRC historically designed itself to perform the dual functions of helping victims of war and promoting respect for the law. Whereas confidentiality is primarily designed to serve the former, public expression of non-compliance with agreements is meant for upholding the latter. While both are mutually not exclusive, certain situations warrant prioritisation of one over the other. The current situation involving the India-ICRC MoU, in the backdrop of its non-compliance by India, warrants the steps for promoting respect for the law.