The first issue of conflict between the international laws and Indian law to deal with naxalism is related to the nature of conflict between naxala and the state. Two questions are raised; is this movement an armed conflict or not and is it an international or internal armed conflict? Article 3 and 4 of the Geneva Convention (12^th August 1949) of IHL provides for Protection of Victims of Non-International Armed Conflicts (Protocol II) and guarantees for “all persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted” and “to respect for their person, honour and convictions and religious practices”. There is no settled definition of the term “armed conflict” which is used freely in both the Geneva Conventions and the Additional Protocols of IHL but is not defined in either. The term ‘armed conflict’ has been defined by the International Tribunals as, “[A]n armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organised armed groups or between such groups within a State”.

Based on the minimum criteria of armed conflict defined by the IHL, the conflict between the armed forces and the naxals can be termed as an armed conflict. The government of India is also agreed that naxalite movement started in India a way long back in 1967 has been arms based, believe in political power and a number of violent clashes between the naxalites and the armed forces of the State have happened so far. They are organised themselves on the pattern of classical communist governance system and have rejected the parliamentary system of governance and capitalist philosophy. Due to the above scenario, the armed violence between the naxalites and the State’s armed forces has got both the intensity as well as the duration to be termed as an “armed conflict” under IHL.

However, the situation prevailing in India due tonaxal movement cannot be termed as an International armed conflict as the conflict between the naxalites and the State’s armed forces is very much within the border lines of India only. It is just an internal arm conflict on the line of ICC Statute (22) in Art.8 para. 2(f) which provides for a definition of Non-International Armed Conflict as follows: “It applies to armed conflicts that take place in the territory of a state when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups”. Again the additional protocol II supports it by saying that this instrument applies to armed conflicts, “which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.”

If the conflict between the Naxalites and the State’s armed forces is recognised as an internal conflict, it will be beneficiary to both the parties and the civilians, as the IHL will have to be followed and the violations of the basic and fundamental human rights will not happen. But if it is considered as a situation where the IHL will be applicable, it will have some serious implications. The State’s armed forces as well as naxalites will have to follow and respect it. The naxalism will get the attention of the international community and international organizations will try to have a situation where the violations of IHL are minimum and the violators are punished.

On the issue of displacement of civilians for reasons related to the conflict, Article 17 of the Additional Protocol II prohibits it unless “the security of the civilians involved or imperative military reasons so demand”. However, ethnographic findings show that there are large instances of displacement in naxal affected areas of Odisha and Chhatisgarh. More than fifty thousand civilians were displaced from their villages as a result of the Salwa Judum (state sponsored army against naxals) campaign in Chhattisgarh. A large number of displaced persons reportedly fled to neighbouring Andhra Pradesh and Odisha.

On the issue attack on civilians either by naxals or security personnel, the domestic laws have not been able to adopt the international standards of human rights as defined by IHL and UDHR. Article 13(2) of the Additional Protocol II of IHL states that, “The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited”. Under the Convention against Torture (CAT, the state can take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction (Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Part 1, Article 2). Article 5 of the Universal Declaration of Human Rights, and Article 7 of the International Convention of Civil and Political Rights (ICCPR) provide that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. India being a signatory member of the ICCPR prohibits torture of any kind.

According to the National Crime Records Bureau, in 2009 alone, 220 complaints were alleged or received against police personnel in the state. Of the 220 complaints lodged, only 20 police personnel were sent up for trial and 10 of these cases were withdrawn or disposed off, whilst no case was completed, and no convictions or acquittals were made. Unfortunately, these police officers and security personnel seem to enjoy widespread impunity for their actions.

The Government of India is yet to ratify this convention. Ratification is to be preceded by the enactment of a domestic law. The Prevention of Torture Bill, 2010 (PTB) was referred to a Parliamentary Select Committee of the Upper House in August 2010. Considering representations from human rights groups, the Committee substantially revised PTB, which now partially³² complies with CAT. The PTB must prohibit cruel, inhuman or degrading treatment and punishments³³.

In the naxalite affected areas, the joint mission of local police and paramilitary forces “is to promote security, prevent trans-border crimes, unauthorized immigration and other illegal activities”. However, the security forces themselves were responsible for extrajudicial executions, arbitrary arrest, detention and torture. The state government estimates that as many as 137 persons lost their lives in various incidents of firing by the security forces during 1980-2005^34,35.

The security forces are also responsible for enforced disappearance and extra judicial killings of innocent people³⁶. The UN Convention on Enforced Disappearances (CED) is to be followed by the signatory countries. But enforced disappearances and extra judicial killings are yet to be codified as offences under criminal law. In 2006, it was held that it is to be done at the level of state parties under the International Convention for the Protection of All Persons from Enforced Disappearance. Again, the legal process of investigation, accountability and justice is not followed properly. The Government of India is yet effort to ratify it.

A large number of adivasis have been arbitrarily arrested in Central India and languish in jail³⁷. Only in Chhatisgarh147 persons were detained under CSPSA in 2010. Arbitrary arrest and detention in conflict zones is largely carried out through the use of special laws like the Chhattisgarh Special Public Security Act and Article 9(1) of the ICCPR states that “everyone has the right to liberty and security of person”. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.” Moreover, Article 9 of the ICCPR makes it mandatory that the reason for arrest and the charges against the accused be clarified before every arrest, and all arrested individuals should be promptly brought to court. Additionally, article 22 clause 2 of the Indian Constitution states that the detainees have to be produced before a magistrate within 24 hours of their arrest. The UN Working Group on Arbitrary Detentions has opined that the use of preventive detention laws by the Indian government should conform to international standards and obligations of the Government of India and that India should consider bringing domestic law in line with International law (mainly referring to PSA)³⁸.

The state has empowered the armed forces to ‘shoot to kill’, arrest, demolish structures, and conduct warrantless searches on mere suspicion. Measures are being taken to further enhance powers of the armed forces. For instance, a new law, the Border Security Force (Amendment) Bill, 2011 seeks to widen the scope for deployment of BSF for counter-insurgency and ‘anti-Naxal’ operations with additional powers of ‘search, seizure and arrest’. At present, the state police personnel have this power.

According to the ICCPR, “the right to life and the protection against torture and ill-treatment requires rigorous oversight by the State over the use of forces by their law enforcement agencies”. Due to the supreme character of the right to life, international law establishes that “the law must strictly control and limit the circumstances in which a person may be deprived of his life by such authorities”³⁹. Accordingly, state parties have to settle in their domestic law the conditions under which it is lawful for public agents to resort to the use of force. The Code of Conduct for the Law Enforcement Officials endorsed by the United Nations General Assembly in 1979, states that the use of force is an exceptional measure. In particular, it establishes that the law enforcement officer permits the use of force only when strictly necessary and to the extent required for the performance of their duties⁴⁰. Sexual assault by security forces is widespread, but rarely are cases of rape investigated or punished. In Chhattisgarh, six women raped by members of Salwa Judum still await justice from the Court and many other complaints of sexual violence in Central India are yet to be probed.

The use of children or target of schools has been taken seriously by IHL as defined by the Rome Statute of International Criminal Court. There is absolute prohibition on the use or recruitment of children as fighters, informers or career of arms. Further, it expects that governments must not spread the conflict nor measures be taken to disturb tranquillity or access to public facilities.

The United Nations has observed that the Maoist armed groups are recruiting and indoctrinating children and had constituted children’s squads and associations as part of mass mobilization (UN 2011). The children are being recruited by Naxals through intimidation and abduction and were used in support roles, including as lookouts, messengers, porters and cooks. At the same time the Maoists are attacking the schools meant for children. Maoist armed groups destroyed 258 school buildings, mostly in Chhattisgarh, Jharkand and Bihar, of which 21 schools were destroyed between January and November 2011 (UN 2011). The state is also trying to use the tribal children in this conflict. The government of Odisha had sanctioned 5600 post for SPOs in three phases since 2009 where in tribal youths were drafted for a period of three years to supplement the efforts of the district police to take on the left wing extremists. There is criticism of recruiting children as SPOs even from the highest court of the land i.e. Supreme Court of India. The Supreme Court said the Centre and the governments were “playing a dangerous game” by recruiting tribal youth as special police officers (SPOs) and arming them with sophisticated weapons to fight naxals. “Over 18 years of age, class five pass and two months training to become an SPO? Is that all that is required to handle sophisticated weapons? What is their accountability? You are playing a dangerous game. If these so-called SPOs turn against you, then God save the country,”

According to Universal Declaration of the Rights of the Child (UDRC), “a child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth”. The declaration of the rights of the child declare that, “to the end that he may have a happy childhood and enjoy for his own good and for the good of society the rights and freedoms herein set forth, and calls upon parents, upon men and women as individuals, and upon voluntary organizations, local authorities and national government to recognise these rights and strive for their observance by legislative and other measures progressively”. The Indian Government is following UDRC as well as constitutional norms to protect its children.

In conflict zones, militarisation has also led to denial of Economic, Social and Cultural rights of the tribal communities (ESCRs). For that the IHL in its Article 14 of the Additional Protocol II provides that “Starvation of civilians as a method of combat is prohibited. It is therefore prohibited to attack, destroy, remove or render useless, for that purpose, objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works.” Besides, there are seven fundamental rules which cannot be violated by any party to an armed conflict at any point of time. These rules are meant to secure the life and freedom of the civilians as well protection of the fundamental rights of the State forces’ and the naxals, who are constantly showing the disrespect towards these rights of the other.

But, evidences are that use of hospitals and schools by the army and paramilitary is common in the naxal affected villages. The Supreme Court has acknowledged the practice and ordered security forces to vacate schools in Chhattisgarh since 2007, however nothing much has been done⁴¹. In Central India, the tribal population living in forests has been forcefully displaced by security forces. According to the Internal Displacement Monitoring Centre, 148,000 people are living in camps in central India. The Supreme Court had ordered the petitioners in the case to prepare rehabilitation plan, the starting point of which was to conduct a survey but the state government is refusing to act on it. The Right to Self-determination guaranteed by the UN Declaration on the Rights of the Indigenous People has been violated in these areas.

Special security laws and Section 197 of the Criminal Procedure Code (Cr.P.C) grant immunity to public servants and members of the armed forces for acts committed in the discharge of their official duty. Alleged crimes can be prosecuted only with previous sanction of the state or central government. In practice, such sanction is almost never granted, leading to a culture of impunity for human rights abuses. Recent official data confirms that sanction is almost never granted for crimes committed by the armed forces. Moreover, NHRC doesn’t have regular investigative powers over offences committed by armed forces, further exacerbating their lack of accountability (The Protection of Human Rights Act, 1993, Sec 19).