Silence from and about the subject was the order of the day.
Some of the silences were broken, and some were maintained
By authors who lived with and within the policing strategies.
What I am interested in are the strategies of breaking it.

-Toni Morrison, Playing in the Dark

The Indian Government has been successful in silencing international concerns regarding its draconian Armed Forces Special Powers Act,1958 (AFSPA), currently in force in the 'seven sister' states of the Northeast region. India is a signatory to international instruments like the Universal Declaration of Human Rights (UDHR) and International Covenant for Civil and Political Rights (ICCPR) but the provisions of the AFSPA violates these obligations. Further, with the evolving International Law and emerging jurisprudence, especially after the establishment of the International Criminal Court, the Indian Government cannot continue being indifferent to its international obligations.

Apart from the executive and the legislature, the judiciary, too seems ignorant and indifferent towards its obligations under international human rights law. Since the 1990s, the AFSPA has featured in the UN Human Rights Commission debates and in reports of the Thematic Special Rapporteur. It was also discussed in the UN Committee on the Elimination of all forms of Racial Discrimination in 1996, followed by an exhaustive discussion in 1997 in Geneva while considering the Third Periodic Report on India where it recommended strict compliance with the provisions of the ICCPR. The only derogation allowed from the ICCPR is in situations of emergency which the Indian government has denied being in existence in the Northeast while resiling its obligations under the ICCPR

The Committee specifically requested the Supreme Court to consider the provisions of the ICCPR while deciding Naga People's Movement of Human Rights v. Union of India (1997, ICHRL 117, in which the constitutionality of AFSPA was challenged) but, ironically the five judges bench judgment did not even mention the international human rights covenant and India's obligations there under. This indifference of the Apex court towards international law is quite unlike of its approach in other cases like Unnikrishnan v. State of AP (AIR 1993 SC 2178), Vishaka v. State of Rajasthan (1997 (6) SCC 241) where the Supreme Court incorporated customary international law into the domestic law.

The customary international law has significantly evolved with regard to the conduct of 'law enforcement officials'. The UN Code of Conduct for Law Enforcement Officials, 1979, the UN body of Principles for the Protection of all persons under any form of Detention, 1988, and the UN Principles on Effective Prevention and Investigation of Extra-legal and Summary Execution, 1989, are evidence of this growing phenomenon. The provisions of the AFSPA are in blatant disregard of the articles under these UN resolutions. For example, Art 2 of the UN resolution on Code of Conduct of Law Enforcement Officials requires that "law enforcement officials shall respect and protect human dignity and maintain and uphold the human rights of all persons" which is disregarded by sec 4(c) and (d) respectively, allowing the military to use any quantum of force to arrest someone suspected of having committed or being about to commit an offence, and use excessive force to enter and search premises without a warrant.

Further, the provisions of the AFSPA goes against the fundamentals of the four Geneva Conventions of 1949, which forms the basis of international humanitarian law. The Additional Protocol-II to the Geneva Conventions of 1949 specifically deal with the 'non-international armed conflicts' was adopted in 1978. Though India is not yet a signatory , but it can be argued that these conventions have assumed the status of customary international law. This is further evident from the Rome Statute that came into force in July 2002. Article 8(c) of the Rome statute makes acts (like violence to life and person, in particular, murder, mutilation, cruel treatment and torture; committing outrages upon personal dignity, in particular, humiliating and degrading treatment committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms, and those placed hors de combat by sickness, wounds, detention or any other cause, a crime under international law.

Thus, with the development of customary international law and criticisms voiced by the international organisations, one wonder how long the Indian government can ignore them on grounds of 'sovereignty' and 'domestic affair'. The growing linkage of human rights with trade and development present a trade-off to the Indian Government. It is not only the executive and the legislature, but the judiciary also which should recognise its international obligations.