India’s Defence Exports and Humanitarian Law

• The Supreme Court of India dismissed a public interest litigation (PIL) requesting the central government to stop exporting defence equipment to Israel due to alleged war crimes in Gaza.
• The issue raised is a normative one that goes beyond Israel, affecting India’s aspirations to become a major defence exporting nation.
• Several countries have curbed defence exports to Israel, such as the Netherlands and the UK, based on EU regulations.
• The Indian Foreign Trade Act, 1992 (FTA) and the Weapons of Mass Destruction and their Delivery Systems (Prohibition of Unlawful Activities) Act, 2005, empower the central government to regulate the export of designated goods relevant to India.
• India’s international obligations under any bilateral, multilateral or international treaty, Covenant, Convention, and national security are considered in these sections.
• The Supreme Court has used international law to expand the content of domestic law and judicially incorporated it to fill the vacuum created by the absence of domestic law on the subject.
• The Arms Trade Treaty (ATT) is the most important treaty in this regard, aiming to regulate international trade in conventional arms.
• India is not a signatory to this treaty, making it not binding on India.
• India’s liability under the IHL is obligated under Common Article 1 of the Geneva Conventions, which imposes a negative obligation on states to respect and ensure respect for IHL.
• India should amend the WMDA and the FTA to explicitly assess the IHL compliance of countries importing Indian defence goods, to shore up its credibility as a responsible defence-exporting nation.