Indian military export to Israel — aiding genocide

The Supreme Court of India recently dismissed a petition by former civil servants, academics, and activists in the case of Ashok Kumar Sharma and Others vs Union of India. The petition sought to suspend existing and future licences for the export of military equipment to Israel, citing concerns over international humanitarian law violations amid ongoing conflict in Gaza. The Court's decision raises questions about judicial review limits on executive foreign policy decisions, especially concerning international humanitarian law.

Judicial Review Limits

• Court's Dismissal Rationale: The Supreme Court declined to rule on the merits, focusing instead on procedural aspects. It stated that international obligations are not binding in this context, as Israel was not a party to the case. This approach overlooks the fact that the challenge was directed at the Indian government and companies, not Israel.
• International Obligations and Domestic Law: The Court's reasoning contradicts its previous judgments, which emphasized interpreting domestic law in light of international obligations. Despite the ICJ's detailed orders and obligations under conventions like the Genocide Convention, the Court failed to enforce these international norms domestically.
• Foreign Policy and Contractual Concerns: The Court cited potential breaches of contract and other fallout as reasons for dismissing the petition. It overlooked that the government could invoke force majeure to halt arms exports due to international legal obligations, thus prioritizing commercial interests over humanitarian concerns.

Fallout of the Decision

• Impact on Humanitarian Crisis: The Supreme Court's dismissal could impede efforts to halt military aid to Israel, amidst severe humanitarian crises in Gaza. This inaction might contribute to the ongoing devastation and international criticism of Israel’s conduct.
• Judicial Review in Foreign Policy: The decision underscores the constraints of judicial review over executive actions in foreign policy, especially in contexts involving humanitarian law violations. It highlights a gap in enforcing international legal commitments within domestic judicial frameworks.
• Legal and Ethical Implications: The Court's stance raises significant concerns about India’s adherence to its international legal obligations, potentially undermining global trust in India's commitment to human rights and humanitarian laws.

Practice Question

Q. Amid the ongoing humanitarian crisis in Palestine and international condemnation of Israel’s actions, the Supreme Court’s inability to compel India to halt military aid to Israel underscores the limitations of judicial review over executive foreign policy decisions, particularly regarding humanitarian law violations. Comment