HRF Monthly, HRF Monthly, Uncategorized

The Pannun-Nijjar case fallout: The truth will out … or will it?

The Pannun-Nijjar case fallout: The truth will out … or will it?

Ravi Nair·October 23, 2024

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 seriesHave 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.

Also read: Visa vertigo: Australia and Canada’s new immigration blues

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.

Also read: US State department’s religious intolerance list: Backchannels, bravado and the ‘toothless tiger’ of international law

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.

Also read: Post Nijjar and Pannun fiascos, can India continue without parliamentary oversight for intelligence services?

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.

Also read: The crimes of Dr Henry A. Kissinger that history will not absolve

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.

Also read: America’s decline into illiberalism: Aided and abetted by its Supreme Court

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.

Also read: Is India getting worse at diplomacy while being touted as the Vishwaguru?

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.

Also read: Who is a terrorist? An international law perspective in light of the latest Israel–Palestine flare-up

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.

There is also an identical Bill pending.

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!

courtesy: theleaflet.in

Ravi Nair

The writer is the executive director, South Asia Human Rights Documentation Centre.

HRF Monthly, HRF Monthly, Uncategorized

India’s arms sales to Israel: Bad legally, worse ethically—Part 2

Neither law of contracts nor foreign policy is weightier than human rights and humanitarian law

India’s arms sales to Israel: Bad legally, worse ethically—Part 2

Neither law of contracts nor foreign policy is weightier than human rights and humanitarian law

Ravi Nair·September 24, 2024

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.

Read Part 1 here.

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.”

Also read: The UNHRC concluding observations do not allow for semantics

10.

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.

Also read: ‘Flag of freedom’ should fly ‘not only for ourselves’: Gaza and India’s constitutional responsibility

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.

Also read: India arms exports: A protection of civilians lens is required

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.

Also read: Will the tiny sparks of student protests in India rekindle the flame of India’s historical support for Palestine?

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.

Also read: UNHRC’s examination of India’s periodic report after 28 years: Part 8

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:

  1. State duty to protect
  2. 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.

Also read: Interview with Adila Hassim, counsel for South Africa versus Israel before the ICJ

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.

Also read: The brutality in Gaza rekindles the horrible memories of women in war

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.

Read Part 1 here.

Next week— Part 3 of the series

The Israel arms trade: Emerging legal benchmarks

Ravi Nair

The writer is the executive director, South Asia Human Rights Documentation Centre.

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