December 15, 2015

The Relevance of Principles of Prisoners of War in the Third Geneva Convention to members of Islamic State in Iraq and Syria.

By Nandana Rudreiah, 3rd Year Student at National University of Juridical Sciences.

Treatment of prisoners of war

The principles governing the treatment of prisoners of war are part of customary international law which has been codified in the Hague Convention of 1907 relating to laws and custom of war  . The Hague Regulations presented several problems and deficiencies during the World War I because the Convention was practically a codification of the customary laws on war, which were present before the development of advanced warfare. It was not equipped for the scale and the extent of warfare during the First World War and hence this led to the creation of the Geneva Convention of 1929, which was subsequently replaced by the Geneva Convention of 1949 (‘Third Geneva Convention’ or ‘Geneva Convention’) on treatments of prisoners of war. Although the Hague convention was recognised as codified International Customary Law, such recognition has not been accorded to the Geneva conventions. The relatively new Third Geneva Convention while determining the applicability of the convention, adopted the criteria  mentioned in the Hague Convention under the regulations annexed for Article 1. This has been incorporated in Article 4 of the Convention  which with regards to militias and voluntary corps specify that these groups must be led by an individual who would be responsible for the acts of the subordinates, be represented by a distinctive sign recognizable by a distance, carry arms openly and further, most importantly, conduct their activities in accordance to laws and customs of war.   

Can the Third Geneva Convention be applied to the members of ISIS?

The Islamic State of Iraq and Syria has its origins tied to Al-Qaeda and Bin Laden. They were also considered the Middle Eastern wing of the Al-Qaeda since they acknowledged the successors of Bin laden, Abu Musa’b al Zarqawi, and two other guerrilla leaders of the organisation. One of the main arguments advanced for not applying the Third Geneva Convention on members captured from groups such as Al-Qaeda, Hezbollah in Lebanon or Taliban in Afghanistan is that first, they do not conduct their activities according to the custom and laws of war recognised by other nations. The brutality displayed by such organisations is unprecedented. They do not treat prisoners that they have captured, humanely; massive killing of soldiers are a common phenomenon. Moreover they fail to establish a recognisable identity. To illustrate the fighters belonging to Hezbollah in Lebanon, when the soldiers threaten them, they drop their weapons and try to blend in with the villagers near by the battleground. Similarly the Al-Qaeda also does not have a distinctive identity. They do not wear distinctive clothing and they also try to blend in with the Afghan tribes present in their area. Furthermore they are scattered and disorganised. Therefore they fail to qualify under the tests prescribed under the Convention. However human rights lobbyists such as the Red Cross have urged to include such groups also under the ambit of the Convention. 

The Islamic State, although originally associated with the Al-Qaeda had undergone drastic and fundamental changes. First, there is a deep division between the Al-Qaeda and the Islamic State due to ideological difference and  now the Islamic state is an independent entity under the control of a self-proclaimed Caliph, Abu Bakr al-Baghdadi. They maintain territorial control over the territories occupied in Iraq and Syria.  Further they can be recognised from a distance because of their distinctive black uniform. They also carry arms and ammunitions openly. The  Organization  is highly structured with a strict sense of hierarchy. The German Journalist Jurgen Todenhofer who was granted access into the Islamic State documented that the organisation has a recruitment process where on an average 400-500 people are recruited per day. It is also common knowledge that social media is used to promote its agendas. They have control over oil reserves in the occupied territories and they sell such reserves and fund the organisation. This is not the only source through which they get funds, 20-30% of their funds come from the ransom that they receive from the abduction of refugees. Further they also sell ancient artefacts and historic documents to museums. Moreover the organisation is also rumoured   to  have received huge funds by nations that are interested in the agendas of the organisation. The primary goal of the organisation is to establish an Islamic State in the occupied territories with the Caliph as the head of state. This transition of the organisation is truly remarkable . The Islamic State fulfils all the conditions present in the Geneva Convention except the one which speaks of the conduct of armed militias and voluntary corps. The conduct of such groups is the deciding factor, which determines whether they come under the ambit of the Convention. The Islamic State is known for its beheadings, mass killings and brutal treatment of prisoners. They flout the law and customs of war. Therefore strictly speaking the Geneva Convention cannot be applied to the members of the Islamic State. 

However human rights activists such as Anthony Dowrkins argue that the Geneva Convention must be applied to such groups also, but most nations are staunchly against the application of the Convention to these organisations.  The rationale behind such a stance is that a state would follow the Geneva Convention during war with another state with the belief that the other state would also follow such convention. They act as ground rules for war, but when face with a stateless enemy who refuses to follow the ground rules, the state’s incentive to follow them ceases to exist. The reasoning presented by the states is flawed because there must be no incentive to protect human rights. Moreover the Geneva Convention contemplated that the conduct of a state be independent of the conduct of other state or armed militia.


The Islamic State is not similar to the conventional terrorist organisation such as the Taliban or the Al-Qaeda. It occupies a middle ground between such organisations and armed militia recognised by the Geneva Convention because of their conduct in treatment of prisoners of war. This prevents them from application of the Convention. Although the nations are reluctant with the application of the Convention to these groups by citing that they do not follow the law of war, it is the opinion of the author that the Convention should be applied to the member of the ISIS because one of the primary reasons attributed towards the creation of the Geneva Convention was the protection of human  rights during war It forms part of a series of Conventions and protocols  The legal cynicism towards the application of the Convention to terrorists undermines the body of law that has been regulating war for a century. The war on terror without a regulatory body would turn barbaric and a century’s worth of jurisprudence relating to protection of human rights would be lost.

December 14, 2015

Death to Yakub Memon: Should extraordinary rendition be a mitigating factor?

By Sarfaraz Ahmed Khan

The article of Mr B. Raman, the head of the Pakistan Desk at the Research and Analysis Wing (RAW), published on adds new dimensions to the Yakub Memon case. It has raised questions about adherence to the principle of fair trial and the rule of law by Indian investigating and prosecuting agency. If Mr. Raman’s statements are true, Memon was informally apprehended in Kathmandu with the help of the Nepal police, brought to India by road and thereafter flown to Delhi by a special aircraft and formally arrested in old Delhi. Mr. Raman, who was coordinating the entire operation, has been extremely courageous to put in writing the details of the operation which exposes the illegality committed by the state agency with far reaching consequences on the human rights of the accused and the international human rights obligation of Nepal. The term ‘extraordinary rendition’ refers to various irregular methods employed by a state to bring individuals from another state disregarding the formal legal process of extradition.  

Nepal has abolished death penalty and for it to send someone to another country without ensuring that death penalty will not be executed amounts to violation of human rights of the accused. It seems that the Indian investigating agency has indulged in extraordinary rendition to do away with the requirement of providing assurance as was given in Abu Salem’s case to Portugal. Indisputably, India can impose death penalty but the accused was brought from a country which has abolished death penalty. Had the due legal process been adhered to, death penalty would not have been awarded. Should the state be disallowed to take advantage of deliberate illegality? Does such illegality constitute a mitigating factor to determine the quantum of punishment? The answer may be ‘yes’ in all probabilities. In Memon’s case the court was kept in the dark about the illegality of the rendition process and this can tantamount to the violation of the principles of fair trial.           

Extraordinary Rendition, a violation of human rights of the accused

An extradition treaty between India and Nepal was signed on 2 October 1953 that obliges the two countries to extradite accused persons found within their territory by following legal procedures. Countries having extradition treaties are bound to extradite accused persons in adherence to the due process of law. Since Nepal has abolished the death penalty, it is undoubtedly obligated not to extradite anyone without ensuring protection to the right to life of such person. There are a few cases of other jurisdictions which explain this obligation. The Judge De Mayer of European Court of Human rights (ECtHR) in Soaring v. United Kingdom (1989) observed that death penalty itself constitutes a bar to extradition unless the requesting state provides satisfactory assurances that the death penalty shall not be imposed or if imposed shall not be carried out.

India is not the only country that brings accused from other countries by the process of extraordinary rendition. In South Africa, once an alleged terrorist of Al-Qaida, Mohamed, was taken away by the US Federal Bureau of Investigation (FBI) from Cape Town with the help of state authorities. The South African Constitutional Court in K. K. Mohamed v. Republic of South Africa (2001) had found such rendition to be violative of the constitutional rights of ‘human dignity, to life and of not to be treated or punished in a cruel, inhuman or degrading way.’ In El-Masri v.Macedonia (2012) ECtHR found the act of handing over the alleged accused to CIA agents by the Macedonian authorities inconsistent with his human rights protection. In another case, officers of the Italian military security services (SISMI) and CIA agents were convicted in Italy on the charge of kidnapping an accused whose rendition was carried out from Milan to Egypt in February 2003 (Tribunale Ordinario di Milano -Sez IV Penale-, Sentenza No 12428/09, 4 November 2009). Subsequently the conviction was set-aside on the ground of state immunity. It is important to understand that rendition may amount to abduction if done without following the due process of law.

Power of Arrest under Indian law

Section 48 of the Code of Criminal Procedure 1973 (CrPC) allows the investigating agency to pursue and arrest any accused only within the territory of India. To bring an offender from another country, orders have to be issued by judicial authority as per Section 105B of the CrPC. Impliedly, the Indian investigating agency has not followed the process prescribed under Section 105B of the CrPC. In such circumstances, Yakub Memon’s lawyer might argue that he was kidnapped from Nepal and kept in illegal confinement till the time he was shown to be arrested. In fact, from the point of time he was under custody till the time he had not been shown to be arrested, he was definitely under wrongful restraint and wrongful confinement, both punishable under the Indian Penal Code 1860. His illegal detention also violated his rights guaranteed under Article 21 of the Indian Constitution. Although the validity of trial and conviction is not affected by irregularity in arrest, it is a mitigating factor that should be placed before the court.

Consideration for awarding capital punishment

In Bachan Singh v. State of Punjab (1980) the Supreme Court held that death penalty can only be awarded ‘in the rarest of rare cases when the alternative option is unquestionably foreclosed.’ In this case the Court further imposed an obligation on the courts to draw up ‘a balance sheet of aggravating and mitigating circumstances’ and ‘in doing so the mitigating circumstances have to be accorded full weightage.’ In Machhi Singh v. State of Punjab (1983) the Supreme Court laid down that court can award death sentence only after ‘according maximum weightage to the mitigating circumstances which speak in favour of the offender.’ The illegal arrest and detention of the accused is one of the mitigating factors which should have been placed before the court but the prosecuting agency with the aim of securing death penalty not only failed to enlighten the court on this point but also made false statements about arrest and custody.

Were all mitigating factors before the court?

Did the court really take into account all mitigating factors before awarding capital punishment? Mr. Raman’s article also informs us that Memon had extended his support during investigation in bringing the other accused to India to face trial, and most importantly helped India to establish before the world community the role played by Pakistan’s intelligence agency, ISI, in harbouring terrorism. Mr. Raman argued that the cooperation extended by Yakub Memon is ‘a strong mitigating circumstance to be taken into consideration while considering whether the death penalty should be implemented.’

            The following mitigating factors were, probably, not known to the trial court while awarding capital punishment: (a) Memon was illegally detained in Nepal and brought to India; (b) the investigating agency had kept him under wrongful restraint and wrongful confinement till the time he was shown to be arrested; (c) the action of both India and Nepal resulted in violation of constitutional rights of accused; (d) the state of Nepal failed in fulfilling its legal obligation under international human rights law; (e) the state machinery in the zeal of securing capital punishment violated the international norms by not adhering to the process of extradition; (f) the Indian state machinery did not present the demeanour of the accused and the support extended by him during investigation; (g) the Indian state machinery made false statements about his arrest and detention.       

Moreover, Prof. Surya Deva of City University of Hong Kong has found after analysing 86 cases decided by the Indian Supreme court between January 2000 and October 2011 that the judiciary has applied the principle of ‘rarest of rare’ in ‘quite an inconsistent and arbitrary manner’ and the principle has outlived its utility. In fact, in Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra (2009) the Supreme Court itself observed that ‘it can be safely said that the Bachan Singh threshold of rarest of rare cases has been variedly and inconsistently applied by the various High Courts’ as well as Supreme Court’. In this backdrop when the absence of minor mitigating factors can change life into death, such nondisclosure on the part of the state before the trial court, in my view, is a serious omission of the investigating and prosecuting agency which not only deprived the accused of fair trail but also prevented the judges from balancing the aggravating and mitigating circumstances to determine the appropriate quantum of punishment. Such omission can only be rectified if the Supreme Court either remits the case to the trial judge to re-determine the quantum of punishment in light of the facts newly revealed or if it exercises its power under Article 142 of the Constitution to commute death sentence to life imprisonment.