To access all contents on our website, you need to create an account and login. Full access on approval is given within 48 hours. Please contact Us For any issue
In Focus
J&K
Opinion
Culture
Features
Visuals
Videos
Library
Archives
Support Us
Comment Articles Video Conferencing: The fallout for Yasin Malik and the Indian criminal justice system Trials through video conferences defeat the principles of justice even as they reduce backlog; the remedy lies in investing in the judiciary. A file photo of JKLF Leader Yasin Malik. Photo/R V Moorthy/The HIndu A file photo of JKLF Leader Yasin Malik. Photo/R V Moorthy/The HIndu Ravi Nair Ravi Nair Published on: 25 Jan 2025, 12:09 am
Follow Us
On 20 January 2025, the Supreme Court directed officials from the High Courts of Jammu and Delhi to ensure that Yasin Malik is provided foolproof video conferencing technology to cross-examine witnesses present in a Jammu court from Tihar Jail in Delhi during a trial on the killing of four Air Force personnel in 1989.
The prosecution of Malik, the leader of the Jammu and Kashmir Liberation Front (JKLF), raises more questions on the issue of due process and fair trial than it answers. It would require a legal tome to detail the labyrinthine workings of the Indian state in the various cases. However, as the present one is seeking the death penalty for him and edges forward there is discomfiture with video conferencing in a trial with possible capital punishment consequences.
Malik did himself no favours when he refused legal representation at crucial junctures in his tedious legal travails.
The Indian Supreme Court has concluded that the right to life and liberty contained in Article 21 of the Indian Constitution includes the right to a speedy trial. Yet the Indian criminal justice system has long been buckling under a massive backlog of cases. Most people in custody in India have not been convicted of any crime but rather are either awaiting trial or are being tried. One alleged technological fix for the criminal trial backlog is video conferencing. A file photo of JKLF Leader Yasin Malik. Photo/R V Moorthy/The HIndu Yasin Malik’s Trial: Battle Between Justice and Political Agendas A file photo of JKLF Leader Yasin Malik. Photo/R V Moorthy/The HIndu Reviving Obsolete Laws: A Step Backward for Jammu and Kashmir
Cost effective and expeditious
The rationale behind the use of video conferencing is that it saves time, manpower and money that would otherwise be spent on shuttling prisoners between the prison and the courtroom, and perhaps even more importantly, it allows more undertrial prisoners to be processed more quickly.
State governments spend over Rs. 3.6 billion annually on undertrials at the rate of Rs. 55 per head per day. A Mumbai prison official claims that the savings in fuel, vehicle maintenance and salaries of police escorts for undertrials in transit more than pays for the cost of setting up and maintaining video conferencing facilities.
The Mumbai video conferencing system has apparently allowed for the reassignment of 700 officers who had previously been escorting prisoners from jail to court and back. In Delhi, authorities have allegedly saved as much as 45 million rupees annually due to video conferencing. Even in smaller jails, such as the Yerwada jail in Pune, Maharashtra, the video link system has been credited with helping to clear undertrial backlog.
Supreme Court Sanctions Witness Testimony by Video Conference
In the 2003 Praful Desai case, the Supreme Court concluded that, with respect to witness testimony “in a criminal trial, evidence can be recorded by video conferencing” so long as certain safeguards are maintained.
As long as the accused, or at least his or her lawyer, is present on one end of the video conference when evidence is recorded, that evidence is deemed to be recorded in the “presence” of the accused as required by the Indian Code of Criminal Procedure or as in the new tongue-twisting name it goes by. The Court was of the opinion that there was no prejudice to the accused in having a witness deposed by video conference rather than in person.
It is claimed that the accused and his pleader can see the witness as clearly as if the witness was actually sitting before them. In fact, the accused may be able to see the witness better than he may have been able to if he was sitting in the dock in a crowded Courtroom.
They can observe his or her demeanor. The facility to playback would enable better observation of demeanor. They can hear and rehear the deposition of the witness. The accused would be able to instruct his pleader immediately and thus cross-examination of the witness is as effective, if not better.
The facility of playback would give an added advantage whilst cross-examining the witness. The witness can be confronted with documents or other material or statement in the same manner as if he/she was in Court. All these objects would be fully met when evidence is recorded by video conferencing. Thus, no prejudice, of whatsoever nature, is caused to the accused, so it was held.
In a later case, Sakshi v. Union of India, involving victims of rape or sexual abuse, the Court upheld the use of video conferencing to obtain the testimony of the victim because the sight of the accused may fill the victim with fear and inhibit testimony.
Though neither Praful Desai nor Sakshi, dealt with undertrials appearing in court via video conferencing or with the circumstance where the witness in question was also the accused, both cases would no doubt be highly influential in deciding any challenges to the legality of video conferencing schemes. A file photo of JKLF Leader Yasin Malik. Photo/R V Moorthy/The HIndu The Victimisation of Yasin Malik: The Role of Mushtaq Ahmed Zargar, aka Latram
Concerns regarding video conferencing
Appearances by undertrials via video conferencing may help reduce the troubling delay in their judicial proceedings. Video conferencing schemes may also save the government money. However, there are very real risks where police officers no longer have to physically produce a detainee before a magistrate and instead rely on technology.
Firstly, with due respect to the Court’s dicta in Praful Desai, a video image of an undertrial is no substitute for actually having a person in the courtroom. In particular, the Court’s contention that one can observe the “demeanor” of a person on video as well as, or even better than, in person is sheer speculation.
The human eye and ear, as well as other senses, can discern more information than a video camera and microphone, and there may well be cases where the totality of circumstances of the detainee’s demeanor may not be discernible via video conferencing.
Of particular concern is the fact that a camera only shows what appears before it—the court would not be able to see what is happening off-camera, such as intimidation or other undue influence by the police. These concerns are only magnified if the video conferencing hearing is not conducted “live” before a court, leaving open the possibility that a recording has been edited or otherwise altered before being presented.
Secondly, one of the benefits of the Indian Constitution’s Article 22(2) requirement that every arrestee must be produced before a magistrate within 24 hours of arrest is that arrestees are given a real physical and emotional respite from police custody. This physical production is vitally important given the already troubling high incidence of custodial deaths, torture, rape and other abuses in Indian detention facilities.
If the Article 22(2) production clause is diluted through video conferencing, a Magistrate may not be able to discern the physical condition of an undertrial and may overlook signs of custodial torture. What is more, the undertrial appearing by video conferencing will not be able to benefit from the moral and emotional support accruing from physical proximity to any friends and family in the courtroom.
Isolated and demoralized in conference room or a jail cell far away from an independent judicial officer, he or she may not be able to summon the courage to complain of real custodial abuses.
Thirdly, carrying on proceedings via video conferencing filmed with the undertrial already in prison may be prejudicial to the accused. Rather than appear in court in person in respectful attire, the accused may well be filmed in prison clothing, or even in his or her cell, images that could contribute to a bias in favour of a finding of guilt.
Lastly, as with any new process introduced into the courtroom, there are numerous logistical concerns that must be resolved in order to make sure a hearing via video conferencing is reasonably equivalent to a hearing in person.
In Praful Desai, the Court was dismissive of the potential for technical mishaps: “By now, science and technology has progressed enough to not worry about a video image/audio interruptions/distortion.” However, these are not trivial or far-fetched concerns, especially when the undertrial’s rights to life and liberty are at stake.
For example, the inauguration of the video conferencing system in Karnataka High Court was reportedly “not exactly a smooth launch as the audio facility failed to click, apparently due to an ISDN link failure.” Other important and legitimate logistical concerns have to do with the fairness of a trial conducted via videoconferencing and the ability of the accused to benefit from the right to counsel and to participate in his or her defense. A file photo of JKLF Leader Yasin Malik. Photo/R V Moorthy/The HIndu Oxford Union releases footage of Kashmir independence debate
The future of video conferencing in Indian Courts
Video conferencing usage in the Indian criminal justice system is growing rapidly. Despite concerns that the use of video conferencing could be unconstitutional, Indian courts have begun to embrace the use of video conferencing. India’s former Chief Justice K. G. Balakrishnan, had praised and recommended the use of video conferencing for remand of undertrials and for witness testimonies when necessary.
Even though video conferencing is undeniably reducing case backlog, it is no panacea for all that ails the Indian criminal justice system.
With only 14.7 judges for every million people, severe shortcomings in legal representation, and judicial and police corruption, the Indian criminal justice system is in desperate need of more prosaic investments in salaries, recruitment and training rather than relying primarily on video conferencing as a technological fix. If the savings from implementation of video conferencing arrangements are not illusory, perhaps the best way to spend them is to reinvest them in the judiciary.
In Praful Desai, the Supreme Court cautioned that video conferencing cannot be conducted indiscriminately but must respect rights of the accused. It is in this spirit that video conferencing hearings with undertrials must be conducted. The Yasin Malik case is not for experimentation in this regard.
Examining Assam government’s response to SC amidst illegal detention of foreigners in ‘transit camps’: Part 1
This Republic Day, this article, the first in the series related to the illegal detention of foreigners in Assam, examines domestic and global laws allowing such unfettered powers to governments.
The writer is the executive director, South Asia Human Rights Documentation Centre.
Published on:
26 Jan 2025, 6:53 pm
Assam’s foreigner detention centres and the laws at play
ON January 23, 2025, the Supreme Court of India questioned the Assam government for detaining 270 foreigners at the Matia transit camp in the state without giving reasons. The Assam government had earlier changed the nomenclature of detention centres to transit camps, which serves as a great example of the usage of polysemantic language!
Affidavit of blunders
The Bench was hearing a plea concerning the deportation of persons declared foreigners and facilities at the detention centres in Assam.
The Supreme Court had given six weeks’ time to the state government on December 9, 2024 to file an affidavit and provide reasons for detaining 270 foreign nationals in the transit camp.
The court sought to know why detentions were continuing and whether there were any steps taken to initiate the process of deportation. The Assam government counsel stated the affidavit was confidential and should remain sealed, to which the Bench expressed their displeasure.
The Bench remarked, “This shows that the state does not want to come clean. Tell us what is confidential in the affidavit?”
The Assam government had earlier changed the nomenclature of detention centres to transit camps, which serves as a great example of the usage of polysemantic language!
The Assam government counsel answered that the affidavit contained the addresses of the detained foreigners, which could reach the media.
The Supreme Court Bench observed, “Assam counsel states that affidavit filed should be kept in [a] sealed envelope, as contents thereof are confidential. Though we are directing that it be kept in [a] sealed envelope, prima facie we disagree with the counsel that there is something confidential about the contents.”
When we in India cannot prosecute any security personnel without executive sanction, hoping for extradition to North America of even the small fish is living in wonderland, writes Ravi Nair.
—
PERHAPS, no one working in the present Indian security establishment has seen the US television series, Have Gun Will Travel. Televised in the late 1950s and early 1960s, it features a mercenary investigator who— as anyone who has seen movies about the American Wild West will tell you— ‘is quick on the draw’.
Solving problems with painstaking investigation is not presently the favoured option in large sections of the Indian police. ‘Shoot first, ask questions later’ is the preferred option.
The number of extrajudicial killings in India is seeing an exponential rise. Coyly called ‘encounter deaths’ by an often lawless security machinery supported by a largely supine media, they are for the most part cold-blooded first-degree murders. Why should it be any different because the target is and was in North America or Shangri-La?
The ‘thok de’ culture and where it leads
“Thok diya jayengay,” (Will be knocked off) is what the Chief Minister of Uttar Pradesh stated and had his cops carry out the orders.
Solving problems with painstaking investigation is not presently as the favoured option in large sections of the Indian police. ‘Shoot first, ask questions later’ is the preferred option.
The US department of justice and the Federal Bureau of Investigation (FBI) may not have known but the US State department certainly was aware of the murderous transnational predilections of the Hindutva government in India.
In April 2024, they were reminded of it in a State department briefing. The Prime Minister and the defence minister of India showing their honed skills in diplomatic conduct had earlier said, “Ghar me ghus ke marenge” (India will not hesitate to kill terrorists in their homes.)
The US State department spokesperson’s response was tepid. A mere signaling of the wagging of the finger could have avoided the future infantile adventurism of the Indian spooks.
Intrusive surveillance by the Research and Analysis Wing (R&AW) has a long back story. Just to mention two cases in the public domain: In December 2019, a court in Frankfurt, Germany convicted an Indian married couple of spying on Kashmiri and Sikh groups. It found Manmohan S., 50, and his wife, Kanwal Jit K., 51, guilty of handing information on such groups to India’s Research and Analysis Wing (R&AW).
In 2020, two Indian diplomats were expelled from Australia “for stealing sensitive defence and security secrets, monitoring Indian diaspora, and recruiting government insiders”.
The respected Australian Broadcasting Service stated, “India’s Modi government operated a ‘nest of spies’ in Australia before being disrupted by the Australian Security Intelligence Organisation (ASIO).”
Inept gumshoes have a long history in India. Praveen Swami, a journalist who should know, lays it bare.
The issues arising out of both the Pannun case and the Nijjar case will have multiplier fallouts. Politicians, media professionals, diplomats and spooks will have their separate takes.
For those who believe in the universality, indivisibility and interdependability of human rights, the only prism through which these issues should be viewed is criminal accountability, impunity and due process of law.
Damian Williams, the United States Attorney for the Southern District of New York, Merrick B. Garland, the Attorney General of the United States, Anne Milgram, the Administrator of the Drug Enforcement Administration (DEA), Christopher A. Wray, the Director of the FBI, Matthew G. Olsen, the Assistant Attorney General for National Security, and James E. Dennehy, the Assistant Director in Charge of the FBI’s New York Field Office announced the filing of murder-for-hire and money laundering charges against Indian government employee Vikash Yadav, aka ‘Vikas’, aka ‘Amanat’, in connection with his role in directing a foiled plot to assassinate a US citizen in New York City.
The charges are contained in a second superseding indictment unsealed in the US district court for the Southern District of New York on October 17. Yadav’s alleged co-conspirator Nikhil Gupta was previously charged and extradited to the United States on the charges contained in the first superseding indictment.
In a move that is going to be of interest to the US court, Yadav was arrested on a charge of extortion and is out on bail. While there is an extradition treaty between the US and India, extradition with ongoing legal proceedings in another case is climbing the glass mountain. The man accusing Yadav of extortion was himself earlier arrested for abduction!
The Indian political parties once again gave evidence of their neophyte understanding of international law, with the exception of Jairam Ramesh, both of whose tweets were careful and measured.
The Prime Minister and the defence minister of India, showing their honed skills in diplomatic conduct, had earlier said, “India will not hesitate to kill terrorists in their homes.”
Three other senior Congress worthies decided to be Quick Gun Murugans and put out come-rally-around-the-flag tweets. The tweet from the Marxist Communist Party handle was in the same vein.
A well-intentioned eager beaver in the All Indian Trinamool Congress (TMC)’s first tweet was part of the ‘me too’ bandwagon! His second tweet was self-correcting, without admitting to being so. However, his colleague, Mahua Moitra once again proved that not only does she understand the law, but her moral compass on these issues is at an even keel.
The less said about the Hindutva brigade, the better. As for the apologists of the spook agencies in the print and audio-visual media, if you expect anything different, more fool you.
Is the case that a suspect in a murder and an attempted murder not be charged, prosecuted and tried in a court of law? Courts of law that have due process embedded in them. Not like our procedure established under law and all it entails.
The least they could have done was carefully read the press release from the US Attorney’s office from the Southern District of New York.
It clearly states, “The charges contained in the second superseding indictment are merely accusations, and the defendants are presumed innocent unless and until proven guilty.”
It would be enlightening to see media releases by Indian agencies such as the National Intelligence Agency (NIA) or the Enforcement Directorate (ED) that have a formulation with words to the same effect!
And for undertrials in judicial custody, waiting for kingdom come takes on a wholly new ominous meaning about being innocent until proven guilty in a court of law.
The US is no Snow White with its seven or more dwarfs in Europe and the Middle East when they facilitate the killing of non-combatants in Gaza, the Occupied Territories and Lebanon.
Targeted killings by the US, Israel and Saudi Arabia have not been met with the full force of domestic or international law. Yet, US citizens can protest vociferously outside the White House and we good Indian citizens cannot even protest silently and peacefully in New Delhi with the exception of a side street called Jantar Mantar Road where the only audience is our fellow protestors! And that too only when the Praetorian Guard deigns to give you permission on the off chance.
The US federal legal system is robust. An outline of the process is given in the link. But to really understand what could happen in high-profile cases, instead of navel-gazing, it is best to consider past cases.
The Henry Liu case and the Letelier case. The State department and the White House did not cover themselves in glory in these cases!
The Henry Liu case
Henry Liu, a gift shop owner and Chinese-language journalist critical of Taiwan, was shot to death on October 15, 1984 in the garage of his home. Liu was a liberal critic of the Nationalist Chinese regime.
In the weeks that followed, information came to light that Taiwanese criminal United Bamboo gang members had assassinated the 51-year-old Liu, a naturalised American citizen, at the behest of senior Taiwan intelligence officers. The killers were told that Liu had betrayed his native Taiwan and that his murder would be an act of patriotism.
Two of the killers, including United Bamboo gang leader Chen Chi-li, were arrested, jailed and indicted after returning to Taiwan. They confessed to the murder. Chang’s house guest also returned to Taiwan but escaped a month later and remains at large in the Philippines. Three top Taiwan military intelligence officials implicated by Chen in the murder were stripped of their duties and arrested. The orders for the hit came from much higher.
The Letelier case
On September 21, 1976, Chilean diplomat Orlando Letelier was killed, along with his American colleague Ronni Moffitt, when a bomb planted under his car exploded as they rode into work. The assassination was eventually traced back to Pinochet’s regime which was in the midst of a US-backed campaign against Chilean activists.
For those who believe in the universality, indivisibility and interdependability of human rights, the only prism through which these issues should be viewed is criminal accountability, impunity and due process of law.
Following the 1973 US-backed coup in Chile led by General Augusto Pinochet, Letelier was imprisoned and tortured. After his release, he moved to the United States where he worked for the Institute for Policy Studies in Washington.
In 1973, during the brief time that he had returned to Chile, he served as the minister of foreign relations and the minister of defence in the weeks before the coup.
The person finally responsible, Augusto Pinochet, was not brought to justice. It is clear that the Chilean secret police did not act without his authorisation. He was not prosecuted by the US justice department in the late 1970s when the other Chilean secret police officials were indicted.
The Bill Clinton administration, in part due to pressure from the Letelier and Moffitt families, reopened the investigation into his role. There was a series of documents the Clinton administration was asked to declassify, identifying Pinochet’s role in the crime, particularly in the cover-up of the crime.
Those documents were supposed to be declassified, but they were all diverted into a justice department investigation that was going on in the spring of 2000. An FBI team was sent to Chile, spent a month there, interviewed 42 people and brought back 42 depositions.
A report written by the FBI’s international crime division recommended that Pinochet be indicted as the intellectual author of this heinous act of international terrorism.
Authorities, particularly at the federal level, are increasingly aware of the threat of transnational repression within the US, and have taken steps to prevent the worst of it: assassination attempts, rendition and assault.
Instead of his being indicted, the George W. Bush administration basically sat on the report. Worse, all the documents were withheld as evidence for this investigation.
Others involved in the planning and execution of the Letelier murder, Luis Clemente Posada Carriles, capo di tutti of many of the men who were involved in the murder, and Guillermo Novo, one of the men who was imprisoned with Carriles in Panama, were released. Novo was actually flown on a US plane and brought back to Miami!
Moral of the story. The minnows are fall guys. The big fish die in their beds.
Transnational repression under US law
The FBI states, “When foreign governments reach beyond their borders to intimidate, silence, coerce, harass, or harm members of their diaspora and exile communities in the US, that is transnational repression.”
The bureau adds, “Transnational repression may take the following forms:
Stalking, online disinformation campaigns, harassment, intimidation or threats, forcing or coercing the victim to return to their country of origin, threatening or detaining family members or friends in the country of origin, abusive legal practices (e.g., lawsuits, asset freezes or withholding legal documents such as passports), cyber hacking, assault, attempted kidnapping, attempted murder.”
As for the apologists of the spook agencies in the print and audio-visual media, if you expect any different, more fool you.
As Joshua Kurlantzick and Abigail McGowan explain, the rise of transnational repression— ranging from digital threats, family intimidation and spyware to abductions, assassinations, illegal deportations and Interpol abuse— has demonstrated that activists, diaspora groups and dissidents cannot be ensured of their safety even outside of their home countries.
Authorities, particularly at the federal level, are increasingly aware of the threat of transnational repression within the US, and have taken steps to prevent the worst of it: assassination attempts, rendition and assault.
However, property damage, stalking and intimidation still occur, causing severe disruption to people’s lives. The departments of homeland security, justice and State, as well as the FBI, are part of a recently launched ‘whole-of-government’ approach to this issue, which is being coordinated by the National Security Council.
Significant effort has been expended to make federal law enforcement practices more responsive to the threat of transnational repression, deploy targeted sanctions to hold perpetrators accountable, and prosecute those engaging in the most aggressive campaigns.
Important action has also been taken by Congress, including the passage of legislation to help end the authoritarian practice of misusing Interpol to target critics.
Senator Jeff Merkley has introduced S.831- Transnational Repression Policy Act. The summary below was written by the Congressional Research Service, which is a nonpartisan division of the Library of Congress and was published on January 29, 2024.
Proposed Transnational Repression Policy Act
This Bill seeks to reduce transnational repression (the actions of foreign governments to intimidate, silence, or harm members of diaspora and exile communities to prevent them from exercising their human rights).
This Bill requires the President to impose property- and visa-blocking sanctions on certain foreign persons (individuals and entities) that directly engage in transnational repression.
This Bill also requires the department of State to develop a strategy to promote initiatives that (1) enhance international awareness of transnational repression; (2) address transnational repression, including by raising the costs of perpetrating repressive activities and by protecting targeted individuals and groups; and (3) conduct outreach to those targeted by foreign governments.
Additionally, the State department and the department of justice must provide training to certain individuals (e.g., relevant federal employees and law enforcement partners) on specified aspects of transnational repression.
Is the case that a suspect in a murder and an attempted murder not be charged, prosecuted and tried in a court of law?
The Bill also directs the intelligence community to prioritise, to the extent feasible, the identification of those perpetrating transnational repression against communities in the US.
When we in India cannot prosecute any security personnel without executive sanction, hoping for extradition to North America of even the small fish is living in wonderland. As for bringing the big fish to justice, ahem!
The final part of the four-part deep-dive into the recent case before the Supreme Court of India calling for a halt to arms sale to Israel as it commits genocide against the Palestinians.
IN the history of Indian bilateral defence cooperation with other countries since Independence, our armed forces had and continue to have good relations with some dodgy undemocratic partners.
The most egregious of them in the past was Saddam’s Iraq, which just gassed the inhabitants of Halabja and inflicted regular pogroms on the Marsh Arabs and the Kurds.
Nearer home, to name just one, is the so-called pragmatic relationship with the Tatmadaw, the Myanmar military junta, that leaves a trail of death, rapine and pillage across the non-Burman ethnic areas.
However, the depth and intensity of the relationship with Netanyahu’s Israel bodes ill for the tottering pillars of Indian democracy already being shaken by Hindutva— akin to Zionism— and not only for the exclusionary worldview.
Starting with Narasimha Rao, a former prime minister who got us on the road to the muscular Hindutva security State, we have come a long way.
Israel telling the secretary general of the UN that he is not welcome in the country and yet be considered democratic by many Western capitals and multilateral organisations is stretching incredulity far beyond breaking point.
The Indian security State has cosied up with such worthies as Myanmar and Israel since 1992. An Israel that bombs Gaza in a manner that makes the London Blitz, and the fire-bombing of Dresden and Tokyo during the Second World War passé.
An Israel that thinks that the resolutions of the United Nations on the Occupation are to be scoffed at, even the minimalist Oslo Accords to be violated with impunity, the International Court of Justice to be dismissed and the secretary general of the United Nations be told that he is not welcome in Israel and yet be considered as democratic by many Western capitals and multilateral organisations is stretching incredulity far beyond breaking point.
A ready reckoner of the India-Israel defence relationship
It is useful to do a quick ready reckoner of the depth of India’s defence relationship with Israel. Were Israel a democratic country, it would be kosher. Anyone claiming today’s Israel is democratic is a fit candidate for Bedlam.
India is the world’s largest weapons importer by value, accounting for 10 percent of global arms imports from 2008 to 2023. New Delhi is expected to spend at least US $200 billion in the coming decade to modernise its armed forces.
India’s current defence arsenal is heavily stocked with Russian-supplied equipment. Since 2008, about 62 percent of India’s defence imports (by value) have come from Russia; other top suppliers include France (11 percent), the United States (10 percent) and Israel (7 percent).
India’s imports from Israel
India imported military hardware worth US $2.9 billion from Israel over the last decade, including radars, surveillance and combat drones, and missiles.
Israel’s Elbit Systems partners with Indian conglomerate Adani group to manufacture some of its Hermes900 drones at a facility in southern India, which are exported back to Israel for its use.
The remnants of an Indian drone or projectile were found in Gaza. What is of even more concern is that these armaments are being used in what India, at least on paper, considers Occupied Territories.
In September 2024, India for the first time abstained from voting for the UN General Assembly (UNGA) resolution calling on Israel to vacate the Occupied Territories.
While importing huge amounts of armaments from Israel, we have also exported a fraction of the quantum of the imports (see chart below):
The Indian ministry of defence’s annual reports are indicative of the depth of the relations with Israel in the area of defence cooperation.
2000–04
Yedidia Ya’ari, the then commander of the Israeli Navy (2000–04) visited India in December 2002. Israel, among other countries, set up its national pavilion in the International Land and Naval Systems Exhibition in Defexpo India in 2002.
India is the world’s largest weapons importer by value, accounting for 10 percent of global arms imports from 2008 to 2023.
More importantly, the first meeting of the Joint India–Israel Working Group on Defence Cooperation, held in Israel in September 2002, solidified defence relations between the two countries.
In the Annual Report for 2003–04, Indo–Israeli staff talks took place in New Delhi from December 15–18, 2003. A memorandum of principles and order of cooperation on Airborne Warning and Control System (AWACS) was signed by the governments of India, Israel and the Russian Federation on October 10, 2003.
An Inter-Government Agreement (IGA) was concluded with Israel on March 3, 2004, followed by a contract with M/s IAD Elta System to acquire AWACS aircraft.
Hindustan Aeronautics Limited achieved exports of ₹215.21 crore for the financial year 2003–04. A memorandum of understanding was signed with IAI, Israel for joint marketing of advanced light helicopter (ALH) fitted with state-of-the-art Israel Aerospace Industries (IAI) avionics for the international market.
As part of India strengthening its defence relations internationally— the India–Israel Joint Working Group on Defence Cooperation was set up in December 2003. There were visits by Israeli service chiefs and chiefs of the army in November 2003, and chiefs of the air force in February–March 2004.
Navy to navy meetings to discuss joint exercises and activities, or meetings of an operational nature were also held with Israel. The second meeting of the India-Israel Joint Working Group on Defence Cooperation was held in India in December 2003.
Israel was well represented at the DEFEXPO 2004 defence industry exhibition with a delegation headed by Israeli Deputy Defence Minister, Ze’er Boim.
From India, the chief of air staff visited Israel in September 2004. In December 2004, the third meeting of the India–Israel Joint Working Group on Defence was held in Tel Aviv. It was headed by the director general of the Israeli ministry of defence.
Four ships of the Western Fleet, namely, Mysore, Godavari, Ganga and Shakti, were deployed to the Gulf of Aden and Mediterranean Sea on overseas deployment. During the deployment, the ships visited ports in Israel.
Demonstration firing of artillery ammunition was conducted successfully at Pokhran in June 2004. The ammunition has been manufactured under a memorandum of understanding with Israel Military Industries, Israel, at the Ordnance Factory Chandrapur (OFCH), Ordnance Factory Ambajhari (OFAJ) and Ordnance Factory Kanpur (OFC).
There was also a bilateral institution building, with meetings at Begin-Sadat Centre for Strategic Studies (Israel).
Joint development projects between the Defence Research and Development Organisation (DRDO), Israel and the Indian navy to develop a highly sophisticated long-range surface-to-air missile system is in progress.
2007–08
The AWACS were procured from Israel to meet the long-felt need of the Indian Air Force (IAF). It was a joint development programme of DRDO, the Indian navy and IAI, Israel. The AWACS have a range of 70 km using a dual-pulse rocket motor and active radar seeker in the terminal phase and inertial and mid-course update for guidance. A strategic test of a two-proof motor has been completed successfully.
DRDO has agreements with many countries for collaboration in the field of defence technologies, including Israel. The Indo-Israel managing committee is being organised regularly.
In September 2024, India for the first time abstained from voting for the UN General Assembly (UNGA) resolution calling on Israel to vacate the Occupied Territories.
Defence relations with Israel continued to be cordial and mutually beneficial. Yecheil Horev, director of security of defence establishment and senior deputy director general, Israel, visited India in June 2007. Major General (Retired) Yosi Ben Hanan, director SIBAT during July 23–25, 2007 and chief of staff of Israel navy vice admiral David Ben Bashat during August 26–29, 2007 visited India.
An Israeli delegation led by B.G. Pinchas Buchris, director general, ministry of defence, Israel visited India from December 30, 2007 to January 1, 2008 to participate in the sixth meeting of the India–Israel Joint Working Group (JWG).
The fifth round of navy to navy staff talks were held in Tel Aviv in October 2007. Second air force staff talks were held in New Delhi on January 15–16, 2007. Third round of army to army staff talks were conducted in India from November 26–29, 2007.
2008–09
The Ordnance Factory Board (OFB) successfully demonstrated the indigenous 130 mm cargo ammunition produced by them in technical collaboration with IMI, Israel. Bharat Dynamics Limited (BDL) exported the Infrared Radiation Interference Indicators (IRII) worth US $1,57,000 to Electro-Optics Industries (ELOP), Israel during the year 2007–08.
Long Range Surface-to-Air Missile (LR-SAM), a joint development programme of DRDO, Indian Navy and IAI, Israel, took off. There was also joint development between India and Israel of a dual-colour missile approach warning system. Another joint development programme was the Trajectory Correction System (TCS) for Pinaka (Phase I) between DRDO and IMI, Israel.
Amir Kain, head of director of the security of defence establishment (DSDE) (MALMAB) led a delegation to India during July 21–23, 2008. Major general (retired) Ehud Shani, head of defence export and cooperation department (SIBAT), Israel visited India and held meetings with senior officers on December 8, 2008. India’s secretary (defence production) led a delegation to Israel in September 2008.
India and Israel set up a Sub Group on Defence Procurement, Production and Development to promote cooperation. This sub-group is co-chaired on the Indian side by the director general (acquisition).
The second meeting of this sub-group was held in New Delhi on February 13–14, 2008, while its third meeting was held in Tel Aviv on September 21–23, 2008.
Indian defence secretary led a delegation to Israel to attend the seventh meeting of the India–Israel Joint Working Group on November 12, 2008.
2009–10
The Indian army and navy signed an annual joint maintenance contract for unmanned aerial vehicles (UAVs) of five years with IAI, Israel. The Indian navy undertook passage exercises with Israel.
The chief of army staff (COAS) of India visited Israel on November 8–10, 2009. The fourth air force to air force staff talks were held on November 17, 2009. The fourth India–Israel Sub Working Group met on December 21, 2009. The eighth India–Israel Joint Working Group meeting was held on December 22, 2009.
2010–11
The IAF contracted 15 Low-Level Light Weight Radar (LLLWR) from Israel. The first ballistic control flight test was successfully conducted in Israel. Vice admiral Eliezer Marom, commander-in-chief of the Israeli navy, visited India on January 18–21, 2010.
Major general (retired) Edud Shani, director general of the Israeli ministry of defence, visited India again from February 15-18, 2010. S.K. Sharma, director general (acquisition), visited Israel to co-chair the fifth India–Israel Sub Working Group on May 2, 2010. On November 1-3, 2010, the fifth air force to air force staff talks were held in Tel Aviv.
As part of India strengthening its defence relations internationally— the India–Israel Joint Working Group on Defence Cooperation was set up in December 2003.
The Indian ministry of defence procured an aerial reconnaissance system costing ₹641 crore from M/s IAI Elta, Israel without fully evaluating the system as per the defence procurement procedure. Despite spending ₹611 crore and the delay of over one year, the system is yet to be proven.
2011–12
Navy to navy level interaction and staff talks were held between India and Israel. BDL was nominated as the missile integrator for the LR-SAM missile— which was being developed jointly by DRDO and M/s IAI, Israel— for the Indian navy.
DRDO and IAI, Israel started a joint development programme on Medium Range Surface to Air Missile (MR-SAM).
MR-SAM is a joint development programme of DRDO and Israel Aerospace Industries (IAI), Israel for the Indian navy. It uses a dual-pulse rocket motor and active radar seeker in the terminal phase and inertial/mid-course update for guidance.
The weapon system would provide a point and area defence for three P15A ships of the Indian navy against a vast variety of aerial threats including fighter aircraft, subsonic and supersonic missiles, etc.
On January 11, 2011, the sixth meeting of the India–Israel Sub Working Group on Defence Procurement, Production and Development took place.
Between January 31, 2011 and February 2, 2011, the seventh navy to navy staff talks were held in Israel. On May 15, 2011, the ninth meeting of the India–Israel Joint Working Group on Defence Cooperation was held in Tel Aviv. On November 21–24, 2011, the chief of the Israeli air force visited India.
2013–14
Navy–to–navy level interaction and staff talks between India and Israel were held again. IAF procured SPYDER Low Level Quick Reaction Missile System for the protection of high-value assets (HVAs).
The contract for purchase was signed with M/s Rafael, Israel. Major export destinations for defence products have been Israel, along with other countries. There was a joint development programme between DRDO and the ministry of defence, Israel on an advanced electronic warfare suite for light combat aircraft. In 2013, DRDO held bilateral meetings with Israel.
On January 20–23, the India chief of air staff visited Israel. On May 20, 2013, major general Guy Zur, chief of ground forces, Israeli defence forces, visited India. On March 11, 2014, army to army, navy to navy and air force to air force staff talks were held in Israel.
On March 18–21, 2014, the Indian chief of army staff visited Israel. In February 2014, major general Dan Harel, director general, the Israeli ministry of defence, visited India.
2014–15
IAF procured a SPYDER Missile System from M/s Rafael, Israel. On November 10, 2014, LRSAM was successfully tested against a flying target at a range in Israel.
Designs of the various sub-systems and major elements on MR-SAM— a joint development programme of DRDO, IAF and IAI, Israel— with a range of 70 km, were completed. All MR-SAM functional prototypes were delivered and integrated at IAI, Israel.
Under a joint development programme between DRDO, MoD Israel and M/s Elisra, Israel, development, integration and evaluation of UEWS, which is an integrated radar warner and jammer (RWJ) system started.
Since 2008, about 62 percent of India’s defence imports (by value) have come from Russia; other top suppliers include France (11 percent), the United States (10 percent) and Israel (7 percent).
DRDO, along with the joint partner M/s Elisra, Israel started designing and developing a Dual Colour Missile Approach Warning System (DCMAWS) for Su-30 MKI aircraft.
DRDO held bilateral defence research and development meetings with Israel. On June 30, 2014, the eleventh meeting of the Israel–India Joint Working Group was held in Tel Aviv. The defence minister of Israel, Moshe (Bogie) Ya’alon, visited Aero India in 2015 in Bengaluru. He also met Prime Minister Modi.
2015–16
Medium power radars from Israel began to replace 1980s technology in India. On August 11–13, 2015, the eighth air staff talks between India and Israel were held in New Delhi.
From November 30 to December 3, 2015, the commander of the Israeli air and space forces visited India. On February 17–18, 2016, the director general of the Israeli defence ministry Dan Harel visited India. In March 2016, the Indian chief of air staff visited Israel.
2016–17
The Indian navy held staff talks on maritime cooperation and bilateral issues with Israel. Repair and overhaul projects regarding Su30-MKI, MG-21 BISON, Mig-27 aircraft, Jaguar, Kiran jet trainer, Mirage 2000 aircraft, Dornier (DO-228) and Avro (HS748) aircraft were undertaken.
Depot-level maintenance of UAV engines under the transfer of technology from IAI Malat, Israel was also undertaken. On July 13, 2016, the twelfth meeting of the Joint Working Group on Defence Cooperation was held. In April 2016 the ninth India–Israel army staff talks were held in New Delhi.
2017–18
The army chief of Israel visited India. Indian navy western fleet ships Mumbai Trishul and Aditya proceeded on an overseas deployment to the Mediterranean Sea and Atlantic Ocean in April–May 2017 and made port calls at Haifa (Israel).
The Indian navy has been engaging with various friendly foreign navies to conclude and sign agreements for the exchange of white shipping information. White shipping information is the exchange of information about the movement and identity of non-military commercial vessels. White shipping agreements have been signed with 13 countries, including Israel.
A contingent of the Indian army participated in Haifa Day Centenary on September 6, 2018, at Haifa, Israel, marking the liberation of Haifa from Ottoman Rule, thanks largely to a daring cavalry charge of Indian colonial troops acting in the service of British Imperialism.
On April 25–26, 2017, the thirteenth meeting of the bilateral Joint Working Group on Defence Cooperation was held in Israel. On June 12–15, 2017, the chief of staff committee and chief of naval staff of Israel visited India.
From October 29–November 2, 2017, the chief of ground forces, Israel visited India. On November 5–16, 2017, India participated in the multilateral exercise blue flag held in Israel. On July 3, 2017, to commemorate 25 years of diplomatic relations between India and Israel, Institute for Defence Studies and Analyses |(IDSA) organised a roundtable discussion on the special issue of strategic analysis ‘India–Israel Relations at 25’.
A contingent of the Indian army participated in Haifa Day Centenary on September 6, 2018, at Haifa, Israel. The day marks the liberation of Haifa from Ottoman Rule, thanks largely to a daring cavalry charge of Indian colonial troops acting in the service of British Imperialism.
IAF procured the SPYDER LLQRM systems from Israel. On July 8-12, 2018, there was a meeting to explore the possibilities for cooperation in the domain of coastal security between the Israeli navy and the Indian coast guard.
On May 22–24, 2018, a delegation led by the chief of air staff visited Israel. On July 2–3, 2018, the fourteenth Joint Working Group meeting with Israel was held in New Delhi. On March 26–28, annual staff talks between army, navy and air forces of the two countries took place. On March 10–14, 2019, a delegation led by the commander of the Israel Air Force visited India.
In March 2009, OFB concluded a contract with M/s Israel Military Industries (IMI), Israel for the supply of a manufacturing plant of Bi-Modular Charge System (BMCS) for Ordnance Factory Nalanda. However, the contract was put on hold by the Indian ministry of defence in June 2009 due to illegal gratification by M/s IMI Israel and the contract was finally cancelled in March 2012. Arms Contract corruption needs a major review
There has also been a delay in development and failure in meeting the user requirements of unmanned aerial vehicles that were introduced in the Indian army in 1998 through the import of Searcher Mark-I from Israel.
2019–20
On August 16–19, 2019, a delegation led by the commander of the Israel Air Force visited India. On November 11–13, 2019, the eleventh army to army staff talks between India and Israel were held in New Delhi. International Defence and Security Exhibition (ISDEF), 2019 was held on June 4–6, 2019 in Tel Aviv, Israel. From India, Bharat Earth Movers Limited (BEML), Garden Reach Shipbuilders & Engineers Limited (GRSE), Goa Shipyard Limited (GSL), Bharat Electronics Limited (BEL) and Mazagon Dock Shipbuilders Limited (MDL) participated.
2020
Raksha Mantri Shri Rajnath Singh had a telephonic conversation with defence minister of Israel Lieutenant General Benjamin Gantz on July 24, 2020. Both ministers expressed satisfaction at the progress of strategic cooperation between the two countries and discussed possibilities of further strengthening the defence engagements.
They also expressed satisfaction at the ongoing collaboration in research and development in fighting COVID-19 pandemic which will not only benefit the two countries but also aid the larger humanitarian cause.
NSO says it sells its technologies solely to law enforcement and intelligence agencies of ‘vetted governments’ for the sole purpose of saving lives and preventing criminal and terror acts.
India’s defence minister also invited greater participation of Israeli defence companies under the new liberalised foreign direct investment (FDI) regime in defence manufacturing. The final production batch of MR-SAM for the Indian navy (LRSAM) was flagged off in February 2021.
2021–22
The eleventh India–Israel air staff talks were held virtually on June 10, 2021. The chief of air staff visited Israel from August 2–5, 2021.
The fifth meeting of the Joint Working Group on Military Cooperation between India and Israel, co-chaired by the defence secretary, was held on October 26–27 2021 in Israel. IAF participated in the Exercise Blue Flag held in Israel from October 10–28, 2021.
Not surprisingly, there is no mention of Israel in the annual report for 2023.
A few concerns
Export licences
There is no information in the public domain as to whether any of the export licences from India have any conditionality against usage against civilians in combat zones.
Pegasus and illegal surveillance
Former member of Parliament from the Communist Party of India (Marxist), K.K. Ragesh posed a number of pointed questions to the government: How did the Pegasus spyware come to India? Why were people “fighting against the government” targeted? How can one believe that the government has no role to play in bringing the software for snooping on political leaders in the country?
Niv, Shalev and Omri Group Technologies (NSO), an Israeli company, claims it sells its technologies solely to law enforcement and intelligence agencies of ‘vetted governments’ for the sole purpose of saving lives and preventing criminal and terror acts.
Fate of Indian workers in West Asia
What happens if there is an all-out war in the next few weeks in West Asia? Is India prepared for the return of the nine million Indian workers in the region? Workers’ remittances are the largest constituent of current receipts after merchandise exports and finance— more than 15 percent of current payments since 2001.
Has the Indian government stipulated in the contracts of Indian workers going to Israel that they will not be used for work in the Occupied Territories— particularly in the building of the illegal settlements there?
Has the Indian government stipulated in the contracts of Indian workers going to Israel that they will not be used for work in the Occupied Territories— particularly in the building of the illegal settlements there?
UNFIL
Has the Indian government directly or through the UN sought assurances for the safety of Indian contingents posted as part of United Nations Interim Force In Lebanon (UNFIL) in Lebanon and the Golan Heights on the Israeli-Syrian border? This is no idle fear as the Irish contingent has received warnings from Israel to move away from the area.
Intelligence cooperation
There has been much covert cooperation between India’s Research and Analysis Wing (R&AW) and Mossad. Both spook organisations are not under the control of their respective Parliaments as in more mature democracies. Little information is available in the public domain about their modus operandi.
Kashmir
Israeli drones are used in Kashmir (one unmanned aerial vehicle called the Heron was specially adapted for such use). Indian forces used Israeli Tavor rifles in 2008, used Spice-2000 guidance technology in the aftermath of the Pulwama attacks in Kashmir in 2019, and bought Pegasus from Israel that same year.
Israeli diplomats have been visiting Kashmir regularly. More troubling is the alleged presence of Israeli Intelligence operatives during interrogations of those detained in the Valley.
However, the greatest concern is the total disregard for the laws of war by the Israeli army. It has put the clock backward on humanitarian law since Grotius or earlier.
Conclusion
Given the depth and breadth of Indo-Israeli cooperation outlined above, nothing short of a major political upheaval and a sea change in public opinion in India is going to substantially alter matters.
The reference here is that a mere change of hats between the National Democratic Alliance (NDA) and the INDIA will be Tweedledum and Tweedledee. The level of cooperation also exposes all non-BJP parties and forces for not having comprehensively debated these issues in Parliament and the public domain.
Israeli diplomats have been visiting Kashmir regularly. More troubling is the alleged presence of Israeli Intelligence operatives during interrogations of those detained in the Valley.
Civil society and secular society efforts at solidarity with Palestine have been vacuous, to say the least in India. They have not been able to mount an effective boycott or disinvestment policy against Indian and international entities aiding and abetting Israel!
We are dealing with the sons and daughters of Moloch, not Abraham.
Part 3 of a four-part deep-dive into the recent case before the Supreme Court of India calling for a halt to arms sale to Israel as it commits genocide against the Palestinians.
UNITED Nations experts have repeatedly demanded a halt to the transfer of weapons and ammunition to Israel. They have stated that such arms transfers may “constitute serious violations of human rights and international humanitarian laws and risk State complicity in international crimes, possibly including genocide”.
Some of the many companies they have identified are “BAE Systems, Boeing, Caterpillar, General Dynamics, Lockheed Martin, Northrop Grumman, Oshkosh, Rheinmetall AG, Rolls-Royce Power Systems, RTX, and ThyssenKrupp”.
“These companies, by sending weapons, parts, components, and ammunition to Israeli forces, risk being complicit in serious violations of international human rights and international humanitarian laws,” the experts have said.
“In this context, continuing arms transfers to Israel may be seen as knowingly providing assistance for operations that contravene international human rights and international humanitarian laws and may result in profit from such assistance,” they have added.
The Arms Export Control Act (1976) establishes the framework for the US government to approve or deny export licences for military equipment and arms.
The financial institutions investing in these arms companies are “Alfried Krupp von Bohlen und Halbach-Stiftung, Amundi Asset Management, Bank of America, BlackRock, Capital Group, Causeway Capital Management, Citigroup, Fidelity Management & Research, INVESCO Ltd, JP Morgan Chase, Harris Associates, Morgan Stanley, Norges Bank Investment Management, Newport Group, Raven’s Wing Asset Management, State Farm Mutual Automobile Insurance, State Street Corporation, Union Investment Privatfonds, The Vanguard Group, Wellington and Wells Fargo & Company.”
Efforts at disinvestment must be supplemented by judicial efforts both at the national and international law. What have been the efforts so far?
United States of America— applicable law
The Leahy Law refers to two provisions— one applicable to the secretary of State and the other to the department of defence— that prohibit the United States government from assisting foreign security forces when there is “credible information” that the recipient forces are committing gross violations of human rights.
The provision related to the secretary of state is codified as Section 620M of the Foreign Assistance Act (1961), while the provision related to the department of defence is codified as Section 362 of Title 10 of the US Code.
In this regard, upon the designation of such assistance being provided, the relevant department conducts a review of the recipient forces or units and submits a review— confirming or rejecting the proposal to export arms and equipment to the recipient country.
Additionally, the Arms Export Control Act (1976) establishes the framework for the US government to approve or deny export licences for military equipment and arms.
These decisions consider factors such as “whether the export would contribute to an arms race, aid in the development of weapons of mass destruction, support international terrorism, increase the possibility of outbreak or escalation of conflict, or prejudice the development of bilateral or multilateral arms control or non-proliferation agreements or other arrangements”.
In this regard, military equipment and arms are only to be sold to friendly countries for purposes such as “internal security” and “legitimate self-defence”.
The court dismissed the petition but still implored the US government to “examine the results of their unflagging support of the military siege against the Palestinians in Gaza”.
Notably, there have already been previous complaints that this criterion has not been met by Israeli military actions in the occupied Palestinian territories; however, no further action or review took place.
A senior State department official Josh Paul resigned from the bureau that oversees arms transfers to foreign nations, citing his objection to continued US military assistance to Israel as its retaliatory bombardment and blockade of Gaza exacerbate a humanitarian crisis there. Paul was the director of congressional and public affairs at the Bureau of Political–Military Affairs.
Regarding Israel
On January 31, 2024, the US district court in Northern California dismissed a case filed against the US President and the secretary of defence alleging violations of international law.
The plaintiffs contended that the US government had failed to uphold its obligations under the Genocide Convention by supplying military equipment and arms to Israel. They also sought an injunction to halt any further military or financial support, aid, or assistance to Israel.
The court, while referencing the International Court of Justice (ICJ) case of South Africa versus Israel, determined that the issues raised were fundamentally non-justiciable political questions.
These foreign policy matters were deemed beyond the scope of judicial review and were left exclusively to the executive and legislative branches, which had already decided to grant military assistance to Israel. As a result, the court dismissed the petition but still implored the US government to “examine the results of their unflagging support of the military siege against the Palestinians in Gaza”.
Given the wide scope of the ‘political questions doctrine’, it seems unlikely that future legal challenges will be successful. No such iron-clad prohibition exists in India.
European Union— applicable law
As members of the European Union, States must adhere to the EU Common Position on Arms Exports, alongside their other international and domestic obligations.
Article 2 of this text outlines eight criteria for evaluating arms transfer authorisations: (i) compliance with international obligations, especially sanctions and embargoes, (ii) the recipient country’s international human rights law and humanitarian law record, (iii) internal situation of the recipient country, including aggravating factors, (iv) impact on regional peace, security and stability, (v) national security considerations of member states, (vi) recipient country’s behaviour, particularly regarding support for terrorist groups, (vii) risk of arms diversion to unauthorised parties, and (viii) compatibility of the equipment with the recipient country’s technical and economic capacity.
Regarding Israel— The Netherlands
On February 12, 2024, the Hague Court of Appeal directed the Dutch government to cease supplying Israel with F-35 fighter jet parts, citing a “clear risk” of serious international humanitarian law violations.
The court based its decision on the EU Common Position and the Arms Trade Treaty, applying these to Dutch law. Notably, this ruling overturned a lower court’s dismissal of the same petition.
The lower court had found no additional obligation to review or conduct new risk assessments for authorised exports, even if circumstances had changed.
The court rejected these arguments, emphasising the paramount importance of compliance with the Geneva Conventions and the Arms Trade Treaty.
The Dutch government had argued that it should be granted a wide margin of appreciation in matters of national security and foreign policy. This argument aimed to preserve the decision-making authority of the ministry of foreign affairs and the Central Import and Export Office; the statutory bodies responsible for granting export authorisations.
However, the court rejected these arguments, emphasising the paramount importance of compliance with the Geneva Conventions and the Arms Trade Treaty. This did not seem to be the reasoning in India!
With procedural defences exhausted, the court examined Israel’s track record of military operations and attacks. Based on numerous reports from UN agencies and non-governmental organisations (NGOs), it concluded there was a ‘clear risk’ of international humanitarian law violations.
The court clarified that the applicable threshold for such authorisations is one of possibility and risk, as definitive judgments would require a “careful factual investigation” not currently feasible.
Nevertheless, it held that the State’s obligation to prevent even the possibility of such violations persists. Therefore, it ordered a halt to all exports of F-35 parts to Israel.
While some argue this imposes an additional obligation for fresh risk assessments for previously granted licences, potentially expanding the interpretation of the EU Common Position, the court noted that the export authorisation was granted indefinitely.
It reasoned that if indefinite licences were not subject to review, it would undermine the very purpose of the EU Common Position. Ultimately, this decision merely aligns the Netherlands with other EU States— Spain, Italy and Belgium – that had previously halted arms exports on similar grounds.
Two export licences for ammunition for Israel were put on hold for the export of gunpowder to Israel. An Italian foreign ministry source confirmed on May 9, 2024 that Italy had halted new export approvals since the start of the Gaza war.
Under Italian law, arms exports are banned to countries that are waging war and those deemed to be violating international human rights law.
Italy provided 0.9 percent of Israel’s imported arms in 2019–23, according to a Stockholm International Peace Research Institute (SIPRI) report, including helicopters and naval artillery.
In North America, Canada has suspended arms sales to Israel while Japan from Asia has also done so. “Many other nations have said they will no longer purchase Israeli weapons,” as per a report in Al Jazeera.
Regarding Israel— Germany
On June 10, 2024, the Berlin Administrative Court resolved not to impose a provisional prohibition on the German government’s supply of military equipment and arms to Israel.
This decision aligns with the recent case brought by Nicaragua against Germany at the ICJ, where the ICJ similarly refrained from indicating any provisional measures.
The ICJ’s stance was influenced by Germany’s robust domestic legal framework governing the export of war weapons and other military equipment, which was deemed sufficient to mitigate any potential risks. Additionally, 98 percent of the export licences granted to Israel since October 7, 2023 pertained to military equipment other than war weapons, eliminating the immediate need for the court to intervene with provisional measures.
Given the wide scope of the ‘political questions doctrine’, it seems unlikely that future legal challenges will be successful. No such iron-clad prohibition exists in India.
Regarding its domestic legal framework, the War Weapons Control Act and the Foreign Trade and Payments Act regulate the arms export regime. For war weapons, the ministry of economy, in consultation with other relevant ministries (such as the federal ministry of defence), makes decisions to authorise or reject export licences.
Additionally, more substantial and controversial decisions are referred to the Federal Security Council, which is composed of the relevant ministers for further discussion and analysis. Notably, Section 6 of the War Weapons Control Act outlines the specific grounds for the refusal of permits.
Regardless, the Berlin Administrative Court declared the petition procedurally inadmissible. The court observed that its purview extended only to reviewing executive actions that have already occurred or are imminent.
As the German government had not authorised any arms transfers in 2024, and with no such authorisations on the horizon, the request for a provisional ‘preventive’ measure was deemed outside the court’s jurisdiction, reserved solely for exceptional cases.
Moreover, the court observed that the government would make “well-informed decisions on a case-by-case basis”, carefully balancing Germany’s foreign and security policy interests with its national and international legal obligations, thereby negating any immediate risk warranting judicial relief.
While the court refrained from delving into the substantive merits of potential violations of international humanitarian law and international human rights law involving German arms and equipment, it nonetheless left open the possibility of challenging future arms exports.
Should the German government authorise such exports, these challenges could be addressed both in subsequent legal proceedings and during the merits phase of the ongoing case.
Lessons for challenging arms exports from India
The applicable legal frameworks as well as the specific judicial proceedings in the United States of America, the Netherlands and Germany offer significant lessons for potential complaints against Indian arms exports to Israel. They are as follows:
Firstly, India is a party to the Geneva Conventions and has incorporated its obligations under the Geneva Conventions Act, 1960, binding it to follow the interpretation of Common Article 1 (CA1) which creates a preventive obligation from assisting and facilitating grave breaches.
While the court refrained from delving into the substantive merits of potential violations of international humanitarian law and international human rights law involving German arms and equipment, it nonetheless left open the possibility of challenging future arms exports.
Additionally, India is obligated to follow customary international law, particularly regarding the framework of responsibility outlined in Article 16 of the Articles on State Responsibility.
Therefore, India must ensure that its military equipment and arms are not used to commit violations of international humanitarian law and international human rights law. Failing to properly assess and complete risk assessments may lead to breaches of these international obligations.
Secondly, the US case can be distinguished from India’s scenario, as Indian administrative laws are considerably more far-reaching than their US counterparts. In India, judicial review of executive action is permitted in a greater number of cases; however, the government retains a wide margin of appreciation regarding its foreign policy matters.
Additionally, the German case can also be distinguished as the Indian government has continued to supply military equipment and arms to Israel throughout the conflict.
Moreover, India has signaled an increase in cooperation, in stark contrast to the European position of reducing and preventing even the mere possibility of violations. This creates an immediate need for judicial review to prevent further human rights violations.
Thirdly, information surrounding military equipment and arms export licences is shrouded in mystery, with very little publicly available data. The department of defence production usually authorises such export licenses as they fall under Category 6 of the Special Chemicals, Organisms, Materials, Equipment and Technologies (SCOMET) list.
However, if the goods are dual-use, they fall under the jurisdiction of the directorate general of foreign trade (DGFT) for proper authorisation. SCOMET licence applications that are publicly available do not list specific details of the goods being sought for approval, for security concerns.
Nonetheless, the Inter-Ministerial Working Group under the DGFT is responsible for adjudicating such applications for SCOMET licences, relying on six grounds outlined in Rule 10.06(I) of the procedure handbook.
These grounds include obligations under general international law as well as specific agreements, such as the Wassenaar Arrangement. Given the possibility of serious international crimes and international human rights and humanitarian law violations taking place in the above-mentioned conflicts, it is likely that these criteria are not being met for proper export authorisations.
Domestic jurisdiction
There is an urgent need on the part of civil society in India to seek legal review and challenge the Indian State and business and banking enterprises that help arm Israel, facilitate atrocities and prolong the armed conflict.
Civil society could do right to information applications, file administrative cases, encourage parliamentary and public discussion that seek the review of licencing decisions by arms-transfer regulators such as the DGFT, that permit the sale of arms to congenital violators such as Israel.
It reasoned that if indefinite licences were not subject to review, it would undermine the very purpose of the EU Common Position.
As 2024 ends, there is scarce understanding in India within the judiciary, political parties, Parliament or civil society on corporate responsibility in the arms trade, underlining citizens at the center of arms control debate and ensuring that the Indian State and businesses uphold humane values and constitutional responsibilities.
India has no public record of interagency cooperation with the arms industry with regard to meaningful human rights due diligence processes by both State and businesses, aimed at preventing human rights violations.
The arms sector’s regulatory framework across the world is built around the responsibility of home states as licensors of arms transfers; respect for human rights, therefore, currently depends on the robustness of States’ human rights commitments, which in India is not something that you can mention in dispatches.
What is to be done?
There is a need for the development of national export control legislation governing the arms sector to include reference to the standalone responsibility of all businesses in the sector to conduct human rights due diligence in line with the UN Guiding Principles.
Independent oversight of arms transfers through parliamentary committees and judicial commissions must be established. This could also be done by independent mechanisms such as national human rights institutions. Except these institutions in India are caricatures of what they ought to be.
There is a need for the development of national export control legislation governing the arms sector.
Victims of human rights violations originating in the arms sector must be granted legal standing to join legal actions against arms companies, in criminal and civil proceedings and public interest litigation.
There must be meaningful public communication and outreach mechanisms to share information about risk assessments in export licence approval decisions. It is a long road to justice anywhere, but in India it is akin to climbing a glass mountain. New Delhi is in strange company with other merchants of death.
Part 2 of a four-part deep-dive into the recent case before the Supreme Court of India calling for a halt to arms sale to Israel as it commits genocide against the Palestinians.
THE recent decision of the Supreme Court of India refusing to call a halt to Indian arms sales is evidence that the court was not apprised of developments in the area of business and human rights both in India and internationally. To fully understand the issues a few paragraphs from the Supreme Court Order bear quoting in their entirety.
Excerpts from the Supreme Court Order
8.
“The second aspect of the matter which requires to be noticed is that the petition seeks a cancellation of the existing licences and prohibition on the issuance of new licences for the export of arms and military equipment by Indian companies. Some of these licenses may be governed by contracts with international entities, including within the State of Israel.
“The grant of injunctive relief by this court would necessarily implicate a judicial direction for breach of international contracts and agreements. The fallout of such breaches cannot be appropriately assessed by this court and would lay open Indian companies which have firm commitments to proceedings for damages which may affect their own financial viability.”
9.
“Third, the statutory provisions of our law confer sufficient power on the Union government if it decides to act in such cases. For instance, prohibitions can be imposed by the Union of India under the Foreign Trade (Development and Regulation) Act, 1992 as well as under the provisions of the Customs Act, 1962.
“Whether in a given case, any such action is warranted is a matter which has to be decided by the Union government bearing in mind economic, geo-political and other interests of the nation in the conduct of international relations.
“In taking an appropriate decision, the government bears into account all relevant considerations including the commitments of the nation at the international level.”
“The danger in the court taking over this function is precisely that it would be led into issuing injunctive reliefs without a full and comprehensive analysis or backdrop of the likely consequences of any such action. The self-imposed restraint on courts entering into areas of foreign policy is, thus, grounded in sound rationale which has been applied across time.”
Business has human rights responsibilities— domestically and internationally
On July 16, 2018, the UN Human Rights Council’s Open-Ended Intergovernmental Working Group on transnational corporations and other business enterprises with respect to human rights (OEIWG) published its initial zero draft.
One of the draft clauses accepted was Article 3.1 “This (legally binding instrument) shall apply, except as stated otherwise, to all business activities, including particularly but not limited to those of a transnational character.”
An open-ended intergovernmental working group to elaborate on the contents of an international regulatory framework relating to the activities of private military and security companies was set up in September 2017.
An informative discussion document was circulated and discussed. It gives an excellent overview of where the standard-setting process is:
“4. Contracting States
Determine which military/security services the State may not contract for
Establish a private security company and private military company procurement process that incorporates an assessment of a company’s capacity to perform services in conformance with the law, including robust criteria for the selection of the company
Incorporate requirements into government contracts to ensure respect for national law, human rights law, and applicable international humanitarian law, including providing relevant guidance
Monitor and ensure accountability, including through addressing issues of jurisdiction and immunities, for companies operating under a government contract.”
The 10th session of the OEIWG is to take place in October 2024.
The third revised draft
During the 9th session of the OEIWG, held in October 2023, States debated the third revised draft. The Working Group’s ninth session highlighted significant disagreements between States and failed to produce a new, consolidated text building on the third draft.
One of the draft clauses accepted was Article 3.1 “This (legally binding instrument) shall apply, except as stated otherwise, to all business activities, including particularly but not limited to those of a transnational character.”
The revised draft sought to bring attention to transnational (or cross-border) activities of business enterprises while also applying its substantive provisions to other businesses that do not have cross-border activities.
Another important issue was its coverage of all human rights and all kinds of human rights abuses and violations.
Rights of victims
The provisions on the rights of victims (now draft Article 4) have been streamlined and reorganised, while preserving most of the content of the zero draft. This Article is vital because it tackles many of the procedural barriers to access to justice and remedy and reparation that victims of business human rights abuse face.
Human rights defenders
The revised draft focuses attention on the provisions on human rights defenders in the preamble, but also in the existent draft Article 4:
“4.9: State parties shall take adequate and effective measures to guarantee a safe and enabling environment for persons, groups and organisations that promote and defend human rights and the environment, so that they are able to act free from threat, restriction and insecurity.”
And:
4.15: “Take adequate and effective measures to recognise, protect and promote the rights recognised in this (LBI) to persons, groups and organisations that promote and defend human rights and the environment.”
The revised draft sought to bring attention to transnational (or cross-border) activities of business enterprises while also applying its substantive provisions to other businesses that do not have cross-border activities.
These explicit provisions to enhance the protection of human rights defenders working in the field of corporate accountability have been a key demand by several State delegates and civil society observers, and are essential to enable individuals and groups of victims of abuse to pursue strategies in search of justice and redress.
Prevention
The wording of draft Article 5 is a huge improvement. While preserving most of the zero draft content, it adopts the definitions of due diligence vis-à-vis human rights that businesses need to perform, as established in the United Nations Guiding Principles on Business and Human Rights (UNGPs): identification, prevention, mitigation, monitoring and communication.
A step presently missing is the obligation to integrate the assessment findings into the policies and operations of companies.
It is not clear why details of measures that could be taken within each step of the due diligence process are listed in a separate paragraph (5.3), when those measures could have been listed, illustratively, within each of the steps, unless they are relevant for more than one step.
It is also surprising to see frequent references to businesses’ “contractual relationships” instead of the reference to broader “business relationships” (which include contractual relationships) adopted in the UNGPs. This is an aspect that will probably be corrected during further negotiations.
Legal liability
A major improvement is in the area of legal liability, where some of the zero draft provisions are preserved, but the bulk of the Article, currently draft Article 6 has been substantially redrafted.
In particular, certain provisions which aim at creating a comprehensive system of legal liability for human rights abuses committed by business enterprises or with their participation, have been redrafted.
For instance: “6.1 States parties shall ensure that their domestic law provides for a comprehensive and adequate system of legal liability for human rights violations or abuses in the context of business activities, including those of transnational character.”
This provision potentially encompasses civil, criminal and administrative liability but also the various modalities and models of civil liability, including torts based on negligence, strict liability and other forms of civil liability.
The implementation of this provision and others will necessitate adequate guidance that can be provided, among other sources, by the monitoring body proposed under the treaty.
States parties shall ensure that their domestic law provides for a comprehensive and adequate system of legal liability for human rights violations or abuses in the context of business activities, including those of transnational character.
Article 6.6 posits a standard of legal responsibility of one company in relation to the harm caused by another company, no matter where the latter is located when the former company controls or supervises the activities that caused the harm.
However, the reach of this provision is obscured by the reference to “contractual relationship” between the two companies, which is an unnecessary limitation to the potentially vast array of ways in which companies relate one to the other. This will certainly be addressed in forthcoming negotiations.
But among all provisions, it is Article 6.7 that stands out for its potential reach and impact in terms of legal responsibility and reparations for victims:
“6.7 Subject to their domestic law, State parties shall ensure that their domestic legislation provides for criminal, civil or administrative liability of legal persons for the following offences.
War crimes, crimes against humanity and genocide as defined in Articles 6, 7 and 8 of the Rome Statute for the International Criminal Court
Torture, cruel, inhuman or degrading treatment, as defined in Article 1 of the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Enforced disappearance, as defined in Articles 7 and 25 of the International Convention for the Protection of All Persons from Enforced Disappearance
Extrajudicial execution, as defined in Principle 1 of the Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions
Forced labour as defined in Article 2.1 of the ILO Forced Labour Convention 1930 and Article 1 of the Abolition of Forced Labour Convention 1957
The use of child soldiers, as defined in Article 3 of the Convention on the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour 1999
Forced eviction, as defined in the Basic Principles and Guidelines on Development-based Evictions and Displacement
Slavery and slavery-like offences
Forced displacement of people
Human Trafficking, including sexual exploitation
Sexual and gender-based violence.”
Article 6 also requires that domestic law provide legal liability for “acts that constitute attempt, participation or complicity in a criminal offence in accordance with Article 6.7” but controversially keeps the reference to “criminal offences as defined by their domestic law”. This is certain to be discussed further.
This Article provides, for the first time, a list of well-defined offences that would trigger legal liability of business enterprises under domestic law. Such liability could be civil, administrative or criminal.
It should be clear that Article 6.7 refers to the legal responsibility of a business for some of the most serious atrocities usually considered as crimes under international law. Many States do not recognise in their legal systems the criminal responsibility of legal persons (business corporations).
India’s National Action Plan on Business and Human Rights
The government of India prepared a draft action plan on the basis of the initial zero draft.
As reported, the National Action Plan reaffirms India’s commitments towards realisation of human rights and the promotion of socially responsible businesses. It provides an overview of India’s legal framework, setting out the State’s duty to protect human rights, the corporate responsibility to respect human rights and access to remedy against business‐related human rights violations.
Explicit provisions to enhance the protection of human rights defenders working in the field of corporate accountability have been a key demand by several State delegates and civil society observers.
The Ministry of Corporate Affairs is steering the process of formulating a National Action Plan on Business and Human Rights (NAP)… 2. The obligation to draft an NAP stems from India’s endorsement of the UNGPs adopted in the UN Human Rights Council (UNHRC). The Principles are articulated as three pillars:
State duty to protect
Corporate responsibility to respect
III. Access to remedy
An NAP needs to be context-specific and address the country’s actual and potential business-related human rights abuse. An NAP needs to be developed in an inclusive and transparent manner. NAP processes need to be regularly reviewed and updated. Currently, about 45 countries, including India, are either drafting or have finalised their NAPs.
Recommendations have been made on some key contents of an NAP. Two of them are:
Section 1: Statements of commitments to implement the UNGPs.
Section 2: Background and context to the NAP. How the NAP relates to other existing government policy strategies such as national development plans, corporate social responsibility strategies, and national plans implementing international labour laws.
Organisation convention and recommendations
The other key contents of an NAP relate to organisation convention and recommendations:
Section 3: Government’s expectations from businesses, including expectations that businesses respect human rights throughout their operations based on UNGPs and other guidance documents.
Section 4: Government response clarifying how the government currently addresses adverse business-related human rights impacts and outlining commitments for further activities.
Section 5: The ministry has been taking various initiatives to ensure responsible business conduct by companies. The National Voluntary Guidelines on Social, Environmental and Economic Responsibilities of Business, 2011 (NVGs) have been revised and released as National Guidelines for Responsible Business Conduct to align with UNGPs and Sustainable Development Goals (SDGs).
The committee on Business Responsibility Reporting (BRR) constituted by the ministry to formulate BRR formats for listed and unlisted companies is finalising its report.
War crimes, crimes against humanity and genocide as defined in Articles 6, 7 and 8 of the Rome Statute for the International Criminal Court.
Further, a zero draft of the NAP has already been published to showcase the considerable progress made by the country in the field of business and human rights, which has been formulated after placing it in the public domain for inputs, sharing it with relevant ministries for comments, and consultations with relevant stakeholders. All these measures shall culminate in the NAP document.
Domestic accountability for international arms transfers
India is in the dubious company of some European and North American States that have continued to supply arms and armaments to Israel in spite of findings of every United Nations body and other multilateral human rights and humanitarian law body that Israel is the principal violator of every norm not just of law but human decency in Gaza, in the Occupied Territories and now in Lebanon.
The arms trade is regulated by international law, in particular the Arms Trade Treaty (ATT), adopted by the UN General Assembly in 2013 through Resolution 67/234B and which entered into force in 2014.
Domestic jurisdiction
Domestic jurisdiction is presently the principal means of enforcing the ATT as well as other international laws and rules that prevent or prohibit State or corporate actors from contributing to major human rights and humanitarian law violations.
Business responsibility to respect human rights under Pillar II of the UNGPs exists independently of States’ abilities and/or willingness to fulfill their own human rights obligations, inferring that companies therefore need to go beyond what is legally required in the relevant jurisdiction or refrain from engaging in business that would otherwise be permitted under that jurisdiction.
India is in the dubious company of some European and North American States that have continued to supply arms and armaments to Israel.
Business policies and processes in place must be preventive— aimed at preventing human rights violations— not merely defensive— corporate due diligence— aimed at protecting the company itself.
Investor pressures must be built by public campaigns towards ethical supply chains, and robust legislative action and public scrutiny. Failure to address the human rights risks entailed in current business models would increasingly lead to not just reputational and financial risks but also legal risks of complicity in serious international humanitarian law violations.
The lessons of the Bhopal Gas Tragedy and the failure of corporate responsibility and the courts in that case are unfortunately not part of either public or institutional memory. We need to do better.
