India’s defence exports and humanitarian law

Sub: IR

Sec: Int conventions

Context:

The Supreme Court of India recently dismissed a public interest litigation (PIL) seeking to stop defence exports to Israel due to alleged war crimes in Gaza.
The Court refrained from intervening, stating that foreign policy is not within its jurisdiction.
However, the issue has broader implications beyond Israel, given India’s aspirations to become a major defence exporting nation.

Countries that curbed defence exports to Israel:

Netherlands: Court ordered the government to block export of F-35 fighter jet parts to Israel, based on EU regulations prohibiting exports if there’s a risk of violations of international humanitarian law (IHL).
United Kingdom: Reviewed Israel’s compliance with IHL under the Export Control Act and concluded there is a clear risk that exported arms could facilitate violations.

Legal Framework in India:

No equivalent to the UK’s Export Control Act or EU regulations exists in Indian law requiring an assessment of a country’s compliance with IHL obligations in deciding whether to export defence equipment to such a country.
Indian laws like the Foreign Trade Act (1992) and the Weapons of Mass Destruction and their Delivery Systems (Prohibition of Unlawful Activities) (WMDA) Act, 2005 allow the government to regulate arms exports under certain conditions including national security and international obligations.
Currently India is not under an obligation to review the IHL compliance of the country to which India is exporting defence goods. Thus, there exists a legal gap.

Role of the Supreme Court:

The Supreme Court has previously used international law to expand domestic law and to fill the vacuum created by the absence of domestic law on a subject (e.g., Vishakha vs. State of Rajasthan).
The current situation should be addressed in the same manner rather than as a foreign policy issue.

International law:

Arms Trade Treaty:

The Arms Trade Treaty (ATT) prohibits supplying arms if there is knowledge they may be used for war crimes.
The treaty obligates states to assess whether the conventional arms they export would be used by the importing country to commit or facilitate a serious violation of IHL.
India is not a signatory to the ATT, making it non-binding, though some provisions reflect customary international law.

Geneva conventions:

Common Article 1 of the Geneva Conventions obligates states to ensure respect for IHL.
Countries are under obligation not to supply weapons to a country ‘if there is an expectation, based on facts or knowledge of past patterns, that such weapons would be used to violate the Conventions’.
This is binding on India as India is a party to the conventions.

Recommendations:

India’s domestic laws (WMDA and FTA) should be amended to include explicit assessments of IHL compliance for importing countries.
This would enhance India’s credibility as a responsible defence-exporting nation and align its actions with international obligations.