International Humanitarian Law in Indian Courts: Application, Misapplication and Non-application

Abstract

This chapter seeks to provide an analytical snapshot of international humanitarian law in the Supreme Court and High Courts in India. The bulk of the chapter is dedicated to an analysis of the application of international humanitarian law norms in post-independence judicial decisions. The case law has been categorised into four broad themes: occupation and annexation of territory; prisoners of war; terrorism and the war on terror; and the meaning of aggression. The chapter also critically analyses cases in which Indian courts have failed to appreciate the nuances of, and thereby misapplied, international humanitarian law. Finally, a few cases where Indian courts conspicuously omitted to cite international humanitarian law, where they could have done so, are briefly discussed.