India’s defence exports and humanitarian law

The Supreme Court of India dismissed a public interest litigation (PIL) aimed at halting defence exports to Israel amid allegations of war crimes in Gaza. The Court declined to intervene, citing that foreign policy matters fall outside its jurisdiction, raising significant normative issues about India’s defence exports.

Legal Gap in India’s Defence Export Policy

• Lack of IHL Compliance Assessment: India's legal framework does not require an evaluation of a recipient country’s compliance with international humanitarian law (IHL) before exporting defence equipment. Unlike the U.K. and EU, Indian law lacks explicit provisions to assess the risk of IHL violations.
• Existing Legal Framework: The Indian Foreign Trade Act and the Weapons of Mass Destruction Act allow the government to regulate arms exports based on national security and international obligations. However, there is no specific requirement to consider IHL compliance of the importing country.
• Supreme Court's Role: Historically, the Supreme Court has incorporated international law into domestic law to fill legislative gaps. Given the current legal context, the Court could provide a framework that aligns arms exports with IHL obligations, rather than categorizing it solely as a foreign policy issue.

International Law on Arms Trade

• Arms Trade Treaty (ATT): The Arms Trade Treaty prohibits states from exporting arms if there’s knowledge they may be used for war crimes. While crucial, India is not a signatory, rendering the ATT non-binding, though some provisions may reflect customary international law.
• Obligations Under IHL: India is bound by Common Article 1 of the Geneva Conventions, which mandates states to ensure respect for IHL. This includes a duty not to supply arms if there is an expectation that they will be used in violation of IHL.
• Implication for Indian Law: When aligning the WMDA and FTA with IHL obligations, a clear duty emerges for India to refrain from exporting weapons to countries likely to use them for IHL violations. A revision of these laws could enhance India’s credibility as a responsible arms exporter.

Recommendations for Policy Improvement

• Amending Domestic Laws: It is essential for India to amend the WMDA and FTA to incorporate assessments of a recipient country’s IHL compliance. This would align India’s arms export practices with its international obligations and ethical considerations.
• Enhancing Credibility: Implementing such assessments would not only strengthen India’s legal framework but also bolster its reputation as a responsible member of the international arms trade community.
• Long-term Strategic Benefits: By ensuring compliance with IHL, India can position itself favorably in global defence markets, fostering trust and cooperation with other nations that prioritize humanitarian law in arms trade.

Practice Question

Q. Discuss the implications of India's current legal framework on defence exports in relation to international humanitarian law, and suggest amendments to enhance compliance and accountability in arms trade.