The top court’s dismissal of a petition on the subject highlights the limits of judicial review over executive decisions in matters of foreign policy, especially in violations of humanitarian law

A Bench of the Supreme Court of India, headed by the Chief Justice of India, recently dismissed a petition filed by former civil servants, academics, and activists. The petition, in Ashok Kumar Sharma and Others vs Union of India, had sought the suspension of existing licenses and the withholding of further licenses by the government to public sector and private companies, for exporting military equipment to Israel during the ongoing war. While the Court made it clear that it was not ruling on the merits of the case, it went on to issue a somewhat detailed judgment. The dismissal raises important questions about the limits of judicial review over executive decisions in matters of foreign policy and especially where there are grave violations of international humanitarian law.

ICJ opinion

The challenge was in view of the International Court of Justice (ICJ), in January, ordering provisional measures against Israel, for violations in the Gaza strip, of obligations under the Genocide Convention. The provisional measures included an immediate halt to all killings and destruction being perpetrated by Israel. In light of this judgment, United Nations experts warned against the transfer of weapons to Israel which may “constitute serious violation of human rights…and risk State complicity in international crimes”. In July, the ICJ rendered a detailed opinion declaring that the sustained abuse by Israel renders “Israel’s presence in the Occupied Palestinian Territory unlawful”. The ICJ observed that “all States are under an obligation not to render aid or assistance in maintaining the situation created by Israel’s illegal presence”.

Earlier, in an adjudication before it regarding military support by Germany to Israel (Nicaragua vs Germany), the ICJ had significantly stated that “the Court considers it particularly important to remind all States of their international obligations relating to the transfer of arms to parties to an armed conflict, in order to avoid the risk that such arms might be used to violate the above-mentioned Conventions”. Following this there have been challenges to the export of arms to Israel in various global jurisdictions, with the Hague Court of Appeal ordering the Dutch government to halt the export of F-35 fighter jet parts to Israel given the risk that “components to be exported to Israel will be used to commit serious violations of international law”.

Many countries that are parties to the Geneva and Genocide conventions have halted the supply of military equipment to Israel, in furtherance of these binding obligations. Canada, Spain and even the United Kingdom have suspended licenses of companies supplying arms to Israel.

As a party to these Conventions, India has similar obligations incumbent upon it. India is obligated under the Genocide Convention to take all measures within its power to prevent genocide. Article III of the Convention makes states’ complicity in genocide a punishable offence. The obligation not to supply weapons to states that are possibly guilty of war crimes is an obligation directly based on common Article 1 of the Geneva Convention. The principles in these Conventions are peremptory norms of international law. India, therefore, cannot export any military equipment or weapons to Israel, when there is a serious risk that these weapons might be used to commit war crimes.

Where the Supreme Court failed

In its judgments, the Supreme Court of India has held that India is under obligation to interpret domestic law in the light of the obligations under the conventions and treaties that India has signed and ratified. However, the Court while dismissing the present case has held, that first, international obligations are not binding, since the country (Israel) which is in violation of international law (the Genocide Convention), was not before the Court. The state of Israel not being a party before the Court in such a challenge is irrelevant, since no relief was being sought against Israel, but against the government of India and private companies exporting arms to Israel, thereby violating international law obligations. The Court further stated that the petitioner’s submissions were with regard to the “conduct of an independent sovereign nation, namely Israel” and that to grant the reliefs sought, it would have to enter findings with regard to the petitioner’s allegations against Israel. Again, the allegations by the petitioner were with respect to the conduct of India in sanctioning military exports, thereby abetting genocide. And the determination of the conduct of the state of Israel was premised on the ICJ, that had in a detailed order of the full court, while ordering provisional measures against Israel, noted the numerous reports by UN Special Rapporteurs and international aid organizations documenting how Gaza was a place of “death and despair”.

The Court’s rationale is also indefensible given its judgments that “Constitutional provisions must be read and interpreted in a manner which would enhance their conformity with the global human rights regime…and the Court must adopt an interpretation which abides by the international commitments made by the country particularly where its constitutional and statutory mandates indicate no deviation” (2017) 10 SCC 1. The ICJ has also held that states that are party to a particular convention “whether or not it is a party to a specific conflict, is under an obligation to ensure that the requirements of the instruments in question are complied with.” (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), pp. 199-200, paragraph 158). Such an obligation “does not derive only from the Conventions themselves, but from the general principles of humanitarian law to which the Conventions merely give specific expression” (Nicaragua vs United States of America).

Second, the Court reasons that seeking a suspension of licenses with regard to contracts with international entities, including with the state of Israel, may involve a breach of contracts and other fallouts. Certainly, that is what the petitioners prayed for — a halt to all licenses for the export of military arms to Israel in view of the genocide and yes, pending contracts. The Court’s fear that this would lead to a breach of contract is misplaced, because any party to a contract to export of arms can always claim force majeure (here, due to the outbreak of a war and genocide by Israel). The same situation would arise if the Government of India were to itself suspend the licenses, which it can do in such situations, as done by many other countries. Being aware of the serious risk that acts of genocide could have been committed by Israel, the government is bound to employ all means reasonably available to it to prevent genocide, which would include suspension of export licenses for military aid to Israel. No contracting party can argue and let alone the court endorse as it does in this case, that licenses cannot be suspended by the government (in a situation of genocide) because it affects the “financial viability” of the companies concerned.

And, third, the “self-imposed restraint on Courts entering areas of foreign policy” was raised as another bogey to dismiss the challenge. India has binding commitments under international law, especially in the context of the application of Conventions that it has signed and ratified, and once the Supreme Court has held that such international law obligations which are not contrary to municipal law, must be read into the law of our land, the Court must step in to exercise its judicial discretion and caution the executive government when it acts in violation these laws.

The fallout

In the midst of an unimaginable humanitarian crisis in Palestine and the international outcry against Israel’s continuing genocide, the Supreme Court’s failure to ensure that the Indian government halts its military aid to Israel and complies with its commitments under international law, will have serious repercussions in this war and its devastation that continues unabated.

The top court’s dismissal of a petition on the subject highlights the limits of judicial review over executive decisions in matters of foreign policy, especially in violations of humanitarian law

(Prashant Bhushan, a public interest lawyer in the Supreme Court of India. and Cheryl Dsouza, Advocate, Supreme Court of India, Secretary, Campaign for Judicial Accountability and Reforms,  were the counsels for the petitioners in the challenge to export of arms to Israel)