'India Should Suspend Military Exports To Israel' : Plea In Supreme Court By Ex-Bureaucrats, Academics

Today, former bureaucrats, activists and senior academics moved the Supreme Court seeking to "cancel any existing licences/permissions and halt the grant of new licences/permissions, to various companies in India, for exports of arms and other military equipment to Israel".

The writ petition under Article 32 is filed through advocate Prashant Bhushan. It is submitted in the petition that the ongoing export of arms and other military equipment to Israel during Israel's siege in Gaza violates Articles 14 and 21 read with Article 51(c) of the Indian Constitution.

The petition seeks: "India should immediately suspend its aid to Israel, in particular its military assistance including military equipment, in so far as this aid may be used in the violation of the Genocide Convention, international humanitarian law or other peremptory norms of general international law. India must immediately make every effort to ensure that weapons already delivered to Israel are not used to commit genocide, contribute to acts of genocide or are used in such a way as to violate international humanitarian law."

Details of the petition

1. India' International Humanitarian Law obligations 

The petition states that India is bound by various international laws and treaties that obligate India not to supply military weapons to States guilty of war crimes, as any export could be used in serious violations of international humanitarian law.

India is obligated under the Genocide Convention (which India has signed and ratified) to take all measures within its power to prevent genocide. Article III of the Genocide Convention makes States complicity in genocide a punishable offence. The obligation not to supply weapons to States possibly guilty of war crimes is an obligation directly based on common Article 1 of the Geneva Conventions which India has also signed and ratified. The principles embodied in these Conventions are peremptory norms of international law

The petition refers to the International Court of Justice (ICJ) in a recent decision dated 26th January 2024, in which the ICJ ordered provisional measures against Israel for violations in the Gaza Strip of obligations under the Convention on the Prevention and Punishment of the Crime of Genocide.

The provisional measures include an immediate military halt to all killings and destruction that is being perpetrated by Israel on the Palestinian people.

In the light of this judgment, the petition notes that the United Nations experts released a statement warning against the transfer of weapons and military ammunition to Israel which may constitute serious violation of human rights and international humanitarian laws and risk state complicity in international crimes, possibly including genocide.

The petition also refers to the July 19 judgment of the ICJ on the Legal Consequences arising from policies and practices of Israel in the occupied Palestinian territory including East Jerusalem. In this, ICJ held that the sustained abuse by Israel of its position as an occupying power, through the use of disproportionate violence on the Palestinian people, violates fundamental principles of international law and renders Israel's presence in the occupied territory unlawful.

Therefore, the petition notes: "India therefore cannot export any military equipment or weapons to Israel when there is a serious risk these weapons might be used to commit war crimes."

2. India's alleged export to Israel directly aids and abets the death of Palestinians 

The petition states that Article 21 is available to non-citizens and state action of exporting arms and ammunition could directly aid and abet the death of Palestinians during the ongoing war with Israel, and this comes under the purview of judicial review of the Supreme Court.

The petition notes that India voted in favour of a UN resolution on an immediate ceasefire in Gaza in December 2023. But India's abstention from voting on a resolution calling for a ceasefire and an arms embargo on Israel in April 2024, raises serious questions regarding India's complicity in aiding the war despite the ICJ ruling on genocide.

Further, it is stated that these claims are coupled with credible reports and publicly available records that Indian authorities have granted licenses for the export of arms to various companies including a public sector company, for the export of munitions to Israel, after the war began, and even after the ICJ ruling on genocide by Israel.

The petition states that at least 3 companies in India dealing with the manufacture and export of arms and munitions have been granted licenses for the export of arms and munitions to Israel, even during this period of the ongoing war in Gaza. These licences have been obtained from either the Directorate General of Foreign Trade (DGFT) or the Department of Defence Production (DDP) authorize export of arms and munitions for dual use and specifically for military purposes.

The petition states: "In January 2024, Munition India Ltd. a public sector enterprise under the Ministry of Defence – has been permitted to ship its products to Israel. In April the company again applied to export the same product under repeat order from Israel. The approval of the same is under consideration by licensing authorities. The application was made to DGFTs Special Chemicals, Organisms, Materials, Equipment and Technologies (SCOMET) division, which authorizes licences for export of arms and munitions that come under the dual-use category."

It is further added: "A private Indian company, Premier Explosives Ltd. (PEL), has been exporting explosives and allied accessories to Israel under SCOMET licence from the DGFT at least since 2021. PEL has been permitted to export these items three times at least since Israel's war on Gaza began last year – with approvals on November 20, 2023, and February 1, 2024.

Hyderabad-based joint venture, Adani-Elbit Advanced Systems India Ltd. in which the Adani Group has a controlling stake has manufactured and exported munitions in the form of Indian - made aero-structures and subsystems purposed specifically for military use, for over over 20 Hermes 900 UAVs/military drones to the Israeli military between 2019 and 2023. Hermes drones – similar to what Adani-Elbit Advanced Systems India Ltd has delivered – have been extensively used in the Israeli Defence Forces' military campaign in Gaza. The company's annual report 21-22 mentions that the company has received orders for 22 Hermes 900 subsystems to be delivered over 36 months and the most recent financial report reveals that a new subsidiary of Adani Enterprise, Adani-Israel Ltd. has been incorporated in Israel in September 2023."

3. Grant of arms export license violates India's international obligations 

The petition avers: "The grant of these licences and approvals coupled with reports of the exports by these companies constitutes a serious violation of India's obligations under international law and conventions."

It is stated in the petition that any international convention not inconsistent with the fundamental rights and in harmony with its spirit must be adhered to, to enlarge the meaning and content thereof, to promote the object of the constitutional guarantee. This is implicit from Article 51(c) and the enabling power of Parliament to enact laws for implementing the international conventions and norms by virtue of Article 253 read with Entry 14 of the Union List in the Seventh Schedule of the Constitution.

Further, the petition notes: "The actions of the State in granting licenses to companies for military exports to Israel, in violation of India's binding obligations under International law, is arbitrary, unreasonable and unfair, being violative of Article 14 and must be struck down."

Details of petitioners

1.  Mr. Ashok Kumar Sharma, is a retired civil servant (diplomat) who joined Indian Foreign Service in 1981 and retired in 2017.

2.  Ms. Meena Gupta is a retired civil servant, having worked in the Indian Administrative Service, from 1971 to 2008.

3. Mr. Deb Mukharji, served in the Indian Foreign Service from 1964 to 2001.

4. Mr. Achin Vanaik is a retired Professor of "International Relations and Global Politics" and Former Dean of the Faculty of Social Sciences, University of Delhi.

5. Mr. Jean Drèze, development economist, is currently Visiting Professor at Ranchi University. 

6. Mr. Thodur Madabusi Krishna, is one of the pre-eminent vocalists in the rigorous Karnatik tradition of India's classical music.

7. Dr. Harsh Mander, human rights and peace worker, writer, columnist, researcher and teacher is Chairperson, Centre for Equity Studies, devoted to the analysis and development of public policy and law for justice and rights of disadvantaged groups.

8. Mr. Nikhil Dey, is one of the founding members of the Mazdoor Kisan Shakti Sangathan (MKSS).

Case details: Ashok Kumar Sharma & Ors v. Union of India, WP (C) No__ of 2024