As the ragtag Myanmar army starts crumbling, many more from the Myanmar army will cross the Indian border from the Chin state and the Sagaing division. Does the government of India have a policy for the intrusion of armed soldiers of a neighbouring State into India which is cognisant of international humanitarian law?
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THE recent return by India of Burmese soldiers who had crossed the international border into Mizoram to seek shelter during fighting in the Chin State in Myanmar is troubling.
Initially, 44 personnel from the Myanmar army and police had fled across the international border into Mizoram amidst fierce fighting between Chin National Army fighters and the military junta soldiers in Myanmar’s Chin state since the evening of November 13, 2023.
The fighting was adjacent to the Zokhawthar border crossing in Mizoram. The Myanmar soldiers took shelter at the local Mizoram police station. The local police handed them over to the Assam Rifles.
The Assam Rifles, which controls the international border on the Indian side in this sector, is under the administrative control of the Union home ministry. However, all its officers are drawn from the Indian army.
Indian Air Force used to return combatant Myanmar soldiers
Indian Air Force’s Mi-17 V5 helicopters evacuated 40 Myanmar army personnel from Champhai village at the Mizoram–Myanmar border, according to an Indian Express report.
The Indian Express reported “that the Myanmar soldiers were flown to Moreh in Manipur to provide them a safe passage”. Moreh is in the adjoining Indian state of Manipur which also shares a land frontier with Myanmar. Clearly, the Myanmar soldiers have been returned by India to fight another day against their own peoples.
Indian Air Force’s Mi-17 V5 helicopters evacuated 40 Myanmar army personnel from Champhai village at the Mizoram–Myanmar border, according to an Indian Express report.
Since the night of November 12, 2023, 5,000 people from Myanmar’s border villages have crossed over to seek refuge in Mizoram. This is in addition to the over 60,000 Chin refugees already in Mizoram. More are trickling in.
International law prohibits third-state intervention during non-international armed conflicts
India has violated the principle of non-intervention that, inter alia, prohibits third-state intervention during non-international armed conflicts.
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If a combatant enters the territory of a neutral State, that State has the duty to capture and intern him.
As per international norms, “If troops of a belligerent State enter neutral territory they must be disarmed, interned and subjected to the domestic law of the neutral State. Prisoners of war admitted to neutral territory must be left at liberty but may be placed in assigned residence.
“A neutral State may on certain conditions allow wounded and sick persons and medical personnel belonging to the belligerent forces to transit on its territory, and may accommodate them provided it respects the principle of impartiality.
“It must, however, take action to ensure that they do not again take part in military operations.”
All this was observed in the breach in the present case.
Myanmar junta not legitimate government
The particular focus is justified because the principle of non-intervention arguably does not apply in the context of third-state assistance upon request by the internationally legitimate government, without thereby arguing that such assistance is necessarily lawful under international law.
The junta government in Naypyidaw clearly does not qualify as “legitimate”, having overthrown a democratically government through a military coup!
Neutrality law
Scholarship also suggests that “[t]he sources of the international law of neutrality are customary international law and, for certain questions, international treaties, in particular the Paris Declaration of 1856, the 1907 Hague Convention No. V respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, the 1907 Hague Convention No. XIII concerning the Rights and Duties of Neutral Powers in Naval War, the four 1949 Geneva Conventions and Additional Protocol I of 1977.
“The United Nations Charter of 1945 and Security Council decisions based on the Charter may in certain circumstances modify the law of neutrality. For example, Article 2(5) of the charter requires UN member states to give the UN every assistance in any action it takes, and Article 25 requires UN members to accept and comply with the decisions of the Security Council; the enforcement measures spelled out in Chapter VII can also have an impact, as they are governed by particular rules which differ from those of the law of neutrality.”
Also read: Supplying arms to Myanmar is in violation of India’s international law obligations
Neutrality law clearly prohibits the provision of war material by neutral States to belligerents. However, India violates this with impunity in the case of Myanmar.
An important and undisputed exception to the foregoing is the provision of humanitarian aid, which falls outside the scope of the prohibition of assistance. It is, perhaps, no coincidence that India stressed it was only providing humanitarian aid to civilians in Jaffna during the civil war in Sri Lanka.
The law of neutrality also does not prohibit States from maintaining trade relations with belligerents, as long as it does so in an impartial way. Restrictions on trade between neutral and belligerent States may, however, flow from other obligations, such as the United Nations Security Council Resolutions.
Neutrality law clearly prohibits the provision of war material by neutral States to belligerents. However, India violates this with impunity in the case of Myanmar.
Secondly, the principle does contain a clear direction for States not to “organise, assist, foment, finance, incite or tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the regime of another State”.
The International Court of Justice (ICJ) similarly determined that “if one State, with a view to the coercion of another State, supports and assists armed bands in that State whose purpose is to overthrow the government of that State, that amounts to an intervention by the one State in the internal affairs of the other.”
Lest we forget, India trained many of the armed cadres of the Liberation Tigers of Tamil Eelam (LTTE) and other Tamil militant groups when Rajiv Gandhi was the prime minister.
More specifically, the International Court of Justice (ICJ) has stipulated that “assistance to rebels in the form of the provision of weapons or logistical or other support […] may be regarded as a threat or use of force, or amount to intervention in the internal or external affairs of other States”.
Looking at the provision of equipment, Article 6 HC XIII clearly states that “the supply, in any manner, directly or indirectly, by a neutral Power to a belligerent Power, of war-ships, ammunition, or war material of any kind whatsoever, is forbidden”.
India and the Geneva conventions
India has signed and ratified the four Geneva conventions of 1949 which apply international humanitarian law (IHL) to international armed conflict. It has not signed the First and Second Optional Protocols of 1977 to the Geneva Conventions which relates to the conduct of belligerent parties, including armed opposition groups in non-international armed conflicts.
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India is concerned about their application to the militancy in Jammu and Kashmir (J&K) and the northeastern states. The tribal insurgency in parts of Central India is also a concern. The Indian government is also reluctant to sign the Additional Protocols as there is no provision for reservations in them.
The country is also a signatory to the Third Optional Protocol which relates to an additional distinctive emblem. It has also enacted the Geneva Conventions Act, 1960.
Lest we forget, India trained many of the armed cadres of the Liberation Tigers of Tamil Eelam and other Tamil militant groups when Rajiv Gandhi was the prime minister.
It is not known if the International Committee of the Red Cross (ICRC) has even taken cognisance of the breach of IHL in Mizoram by India. In 2013, the ICRC was asked to leave Chhattisgarh and offers only negligible services in J&K. Visas for foreign passport holders who do detention visits are not easily available.
The ICRC has no access to northeastern India. It is dependent on the state units of the Indian Red Cross; the less said of them, the better.
No longer an academic question
On November 16, 2023, a further 29 combatant Myanmar soldiers crossed the international border and surrendered to the Mizoram police. They too were repatriated to Myanmar. It is not clear whether this group and the earlier group were disarmed or sent back with their weapons.
As the Myanmar junta has lost control of much of the area bordering China, it remains to be seen if this will happen in the Indian areas bordering Chin state and the Sagaing division of Myanmar.
This area borders Arunachal Pradesh, Nagaland and Manipur. The Arakan Army and the Chin National Army are both formidable fighting forces in the areas bordering India.
As the Myanmar junta has lost control of much of the area bordering China, it remains to be seen if this will happen in the Indian areas bordering Chin state and the Sagaing division of Myanmar.
The Arakan Army has little love lost for India thanks to Operation Leech and the betrayal by India of the nascent Rakhine armed group. The Chin National Army’s attitude is more ambivalent towards India.
As the ragtag Myanmar army starts crumbling, many more from the Tatmadaw, as the Myanmar army is called, will cross the Indian border from the Chin state and the Sagaing division.
Does the government of India have a policy fashioned for the intrusion of armed soldiers of a neighbouring State into India which is cognisant of IHL?
