Right of Manipuri People to Self-defense

By – Dr. L. Malem Mangal
That the Kuki terrorists’ armed aggression has come to stay in the state of Manipur since 3rd May 2023 is an undeniable truth and all indigenous peoples of Manipur are living with this reality since the terror triggered off. As such the Government of India (GOI) now has the obligation to outlaw all Kuki armed militant groups (KAGs) organised under the banner of both the United People’s Front (UPF) and Kuki National Organisation (KNO) as terrorist organisations for unleashing terror attacks against civilians and un-armed people of Manipur. Government of India must now not remain a silent spectator less it does not want to witness a second Manipur people’s uprising akin to that took place on June 18, 2001. The prevailing public sentiment and resentment indicates towards such an environment which can reach the climax any time.
GOI has full responsibility for the acts of terrorism perpetrated by KAGs who are within the ambit of the Suspension of Operations (SoO) Agreement. All KAGs under the SoO Agreement have been under the full control, supervision and direction of the GOI especially the Home Ministry since 2005. Therefore, acts of KAGs are attributable to the Indian State.
Indiscriminate targeting and killings of civilians and un-armed population by use of armed force including drone-bombings, missiles and rocket propelled grenades (RPGs) are simply terrorism. Even national liberation movements (NLM) are prohibited from targeting civilians and un-armed population during hostilities under international humanitarian law. KAGs are not even insurgents leave alone the categorisation of an NLM. The leaders of UPF and KNO are accountable for armed aggression, war crimes, crime against humanity and genocide under the Statute of the International Criminal Court (ICC). They must be prosecuted, tried and punished for committing crimes of the most serious character against the people of Manipur, against the peaceful co-existence of indigenous peoples, against the territorial integrity and trying to dismember the distinct historical, political and legal personality of Manipur. KAGs are on a genocidal spree in Manipur. They must be held accountable for breach of the peace and acts of aggression in the region.
As the ‘State’ as defined under Article 12 of the Indian constitution fail miserably to take proactive steps to protect civilian lives, liberty and property from terrorist activities of KAGs, the principle of complementarity (exhaustion of domestic remedies clause) of Article 1 of the Rome Statute is fulfilled. Now the issue of survival of the indigenous peoples of Manipur is open to the international community. Manipur’s survival as a people and historical and political entity becomes a concern for the international community. The office of the Prosecutor of the ICC can take suo motu case or any State party to the Rome Statute can refer Manipur’s case to initiate international criminal legal actions against the leaders, commanders and armed cadres of the KAGs.
There can also be initiated international criminal legal actions against the Prime Minister, Home Minister, Defence Minister and commanders of Indian Armed Forces (IAFs) operating in Manipur for their failure to protect the lives of civilians and un-armed populations and for their failure to prevent genocidal armed terrorist attacks perpetrated by KAGs. This is because of the fact that the activities of KAGs are attributable to the Indian State under Article 1 of the International Law Commission’s Draft Articles on State Responsibility for Internationally Wrongful Acts, 2001. It is because of the fact that the GOI and especially the Home Ministry has been exercising full control, direction and supervision of these Kuki groups. This is testified by the existing Suspension of Operations (SoO) Agreement executed between the GOI primarily through its para-military force – the Assam Rifles and KAGs under the banner of UPF and KNO since 2005.
The invocation of Article 355 of India’s Constitution has not led to secure the lives, liberty and property of civilians and un-armed population of the state of Manipur. Article 355 obliges the Indian State to “protect every State against external aggression and internal disturbance…”. Imposition of Article 355 in Manipur since May, 2023 has not resulted in containing the violent situation than merely stripping off the authority of the Government of Manipur over the Unified Command – a structure that empowers the Chief Minister or the State Home Minister to have overall command of civil, para-military and military operations in the State by entrusting this authority to a so-called extra-constitutional body known as the Security Advisor to the Government of Manipur. Indeed, imposition of Article 355 should trigger off the GOI in taking proactive coercive measures against KAGs for creating situations of armed rebellion and bringing in elements of external aggression in Manipur. It must rather reinforce the commitment of the Indian State to protect the lives of its people as has been solemnly acknowledged under Article 21 of its constitution in situations of grave threat arising out of the armed genocidal aggression perpetrated by KAGs. Aggression with the intent of driving out or extermination of indigenous Meetei people is genocidal in both pursuit and character. KAGs have perpetrated genocidal campaigns against indigenous peoples of Manipur. Numerous examples testify this including the conflicts with Manipur Nagas, and other small ethnic groups who resist Kuki identity. The fallacy of Article 355 is informed by evidences of rising number of deaths and casualties of civilians from armed attacks carried out by these KAGs.
Armed attacks carried out by KAGs with the support of Myanmar’s PDF or KNA (B) into the territory of India in Manipur against Manipuri civilians is prima facie external aggression. One of the main responsibilities enjoined by Article 355 of India’s constitution to the Government is Raksha or protection of the people from external aggression.
Discussing the import of Article 355, the Supreme Court in Sarbananda Sonowal v. Union of India (2005) held that “The foremost duty of the Central Government is to defend the borders of the country, prevent any trespass and make the life of the citizens safe and secure. The Government has also a duty to prevent any internal disturbance and maintain law and order”. The Court after examining the large scale illegal migration into the State of Assam concluded that a situation amounting to external aggression and internal disturbance persisted therein. Therefore, it became the duty of the Union to take all measures for protection of the State of Assam from such external aggression and internal disturbance as enjoined in Article 355 of the Constitution. If the mere influx and presence of un-armed millions of illegal migrants into the state of Assam can be considered as aggression, then what would best describe the armed attacks carried out against Manipuri civilians by KAGs with support of Myanmar based PDF or KNO (B). Armed attacks carried out by KAGs constitute hundred percent aggression against civilians of the State of Manipur.
The rationale of upholding the constitutional validity of the Armed Forces Special Powers Act, 1958 by the Supreme Court in Naga People’s Movement for Human Rights v Union of India (1998) was that the provisions of the Act (AFSPA) were enacted to enable the Union to discharge the obligation imposed on it under Article 355 of the Constitution so as to protect States from grave situations of internal disturbances and to prevent such situations from escalating to such seriousness as would require invoking the drastic measures under Article 356. The AFSPA is operative in toto in all areas of Manipur except from seven Assembly constituencies. If the Act is constitutional as the Apex Court had decided in 1997 then why the IAFs are deliberately not taking military actions against the KAGs in the hill areas where the Act is fully enforced. KAGs have violated the framework of the SoO Agreement that includes respect for the Constitution of India, laws of the land and Manipur’s territorial integrity. The IAFs comfortably exterminated a recorded case of 1528 innocent un-armed civilians from 1979 till 2012 who never attacked or injured civilians and the State’s military apparatus. What is preventing the IAFs from pursuing military campaigns against these KAGs in the tribal areas from where they are launching these genocidal armed attacks by use of sophisticated weapons including drone-bombs, rocket propelled grenades and short range missiles, etc?
Creating or establishing a Kukiland or Kuki country by dismembering Manipur is not a possibility for both GOI and KAGs. Article 3 of Indian constitution is not applicable to Manipur for three reasons: first, Manipur preceded India’s Constitution. Serial No. 19 of the First Schedule represents this historical and political facticity. How can India’s constitution or a provision of its constitution be applicable to an entity [Manipur] which was in existence even before the establishment of India’s polity and subsequent commencement of its Constitution? Second, the wholesomeness of the territorial boundary of Manipur as existed at the lapse of British paramountcy is inviolable due to the principle of uti possidetis juris of international law which constitutes a norm of customary international law (Burkina Faso v. Republic of Mali, ICJ Reports, 1986). Third, from the standards of international law and practices of the United Nations and States, the status of Manipur within the Union of India is that of an occupied territory with India as an administering power. As per Article 1 of the Merger Agreement of 21st September, 1949, India is defined as an administering power in relation to the territory of Manipur. India is an occupying power over Manipur under international humanitarian law (IHL). Article 47 of the Fourth Geneva Convention – Convention (IV) relative to the Protection of Civilian Persons in Time of War, 12 August, 1949 prohibits India from changing the status of the people of the occupied territory of Manipur (see also ICJ’s Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 2004). India as an administering power over Manipur cannot alter [dismember] the latter’s status. The status of Manipur can be altered if and only if its indigenous peoples determines according to established norms of international law. No third force can alter Manipur’s status. The wholesomeness of the territorial integrity (both territorial and non-territorial) is protected by both India’s constitutional and international laws. The GOI cannot repeat the political blunder of 1949 by any imagination to dismember Manipur’s integrity.
In KAGs’ bold and relentless aggression and genocidal campaigns against the indigenous people of Manipur and in the un-disturbed state of IAFs operating in the tribal areas there seems to be a high conspiracy at work. The conspiring environment seems to have one common agenda that is complete annihilation of indigenous peoples of Manipur for geo-political and strategic ends for both the parties. These collusions might have been carried out with the object of subduing indigenous Meetei people as major insurgent bodies belonging to this section of the population have not accepted to yield to GOI’s peace processes. To be able to bring these major insurgent groups to the negotiating table would open the gates of unprecedented geo-political gains to both the GOI and KAGs. In such a manoeuvre there seems to be a proxy war where KAGs are being used by the State in an attempt to sanitise indirectly which have not been able to do directly. Contradistinctively given India’s legal commitment and international obligations emanating from various multilateral treaties to which it is a State party and principles of customary international law especially the norm of prohibition of aggression, GOI must take primary interest and pursue action to stop and prevent aggression perpetrated by KAGs against the civilisational entity of Manipur. All States including India, has an obligation to prevent aggression which is considered a peremptory norm of general international law a status accorded by Article 53 of the Vienna Convention on the Law of Treaties (see East Timor case, ICJ judgement in Portugal v. Australia, 1995).
In such a serious situation of genocidal aggression which have threatened the survival and peaceful co-existence of the State, the indigenous peoples of Manipur have a right of self-defence under international law. Given that the State has deliberately failed or unwilling to protect the lives of the civilians from KAGs’ genocidal aggression, all the indigenous peoples of Manipur shall be united for a common agenda that is – the right to defend self-preservation and survival, territorial integrity and the right of peaceful co-existence.
(The author is Assistant Professor, Symbiosis Law School, Pune, Symbiosis International University. The views expressed herein are solely of the author and does not represent that of the institution)