The Supreme Court of India’s judgment in Ashok Kumar Sharma & Ors v. Union of India (2024 INSC 674) raises critical points about the limitations of judicial intervention in foreign policy and international trade, specifically regarding arms exports to Israel during the Gaza conflict. The petitioners, a group of former civil servants, scholars, and activists, sought to invoke Article 32 of the Constitution to halt the export of military equipment to Israel, citing India's international legal obligations and the ongoing humanitarian crisis in Gaza. They argued that India’s actions violated treaties such as the Genocide Convention and constitutional provisions, including Articles 14, 21, and 51(c). While the petition presents a morally compelling argument, the court's dismissal of the writ petition underscores the challenges of judicial activism in matters of foreign policy and international law. Therefore, this op-ed aims to analyze the implications of the court's decision and its broader significance within international law, constitutional law, and India’s geopolitical strategy.
Judicial Restraint and Foreign Policy
One of the key reasons for dismissing the petition is the Supreme Court’s recognition that foreign policy decisions rest within the executive branch’s jurisdiction, as outlined in Articles 73 and 253 of the Constitution. The court’s judgment reflects a cautious approach, emphasizing that decisions about arms exports, especially in conflict zones, involve complex considerations, including geopolitical, economic, and international relations factors. By declining to intervene, the court reinforces the doctrine of separation of powers, ensuring that judicial bodies do not overstep their constitutional boundaries in matters best left to the executive.
This judicial restraint aligns with India’s historical approach to foreign policy, which has been determined by the government, taking into account national interests and international obligations. The court rightly points out that international law forms part of domestic law. However, the court maintains that this inclusion does not empower it to dictate foreign policy decisions. Nevertheless customary international law can sometimes influence Indian jurisprudence, as India follows the doctrine that international law forms part of its domestic law unless expressly excluded. Courts, while generally refraining from making decisions that impact foreign policy, can interpret the constitutionality of government actions under Article 14 (Right to Equality), Article 21 (Right to Life), and Article 51(c), which directs the State to foster respect for international law.
In the context of arms exports, the petitioners in the Ashok Kumar Sharma case argued that India's arms exports to Israel violated international legal norms and thus breached Articles 14, 21, and 51(c) of the Constitution. Article 14 guarantees equality before the law, and any state action that supports or perpetuates violations of human rights abroad could arguably violate this provision. In cases like Gramophone Co. v. Birendra Bahadur Pandey, the courts have consistently refrained from directly intervening in matters related to foreign policy. Articles 14 (Right to Equality), 21 (Right to Life), and 51(c) (Directive Principles) allow courts to assess the constitutionality of government actions against international obligations. Article 21, the right to life, could also be interpreted broadly to encompass India's international obligations, especially where actions contribute to serious violations of human rights in foreign territories. Article 51(c) is particularly relevant in such cases as it obliges the State to foster respect for international law. In Narmada Bachao Andolan v. Union of India, the Supreme Court emphasized that while Article 51(c) is not enforceable by itself, it provides interpretive guidance, enabling courts to apply international law principles when assessing the constitutionality of government action. The perspectives have been noted perceptively by Gopal Subramaniam SA, here.
Nevertheless, courts have demonstrated caution in applying these principles in cases that directly impact foreign policy, as seen in Ashok Kumar Sharma. In this case, while international law obligations and constitutional protections were invoked by the petitioners, the court was clear in its stance that foreign policy matters lie within the domain of the executive. The Supreme Court’s decision not to interfere in arms export cases reflects deference to the executive's domain.
Foreign Parliaments
In the face of the current situation, France has set a precedent in universal jurisdiction by prosecuting crimes of war, genocide, and crimes against humanity under international law, even when they occur outside French territory. Universal jurisdiction allows states to claim criminal jurisdiction over an accused person regardless of where the crime was committed. This was reinforced in France’s 2023 Koblenz court trial, which convicted Syrian officials for crimes committed abroad, using universal jurisdiction.
Administratively and not judiciously, in January 2024, the Italian government announced a halt to all military exports to Israel following the start of the conflict in Gaza in October 2023. This suspension reflected concerns about the use of Italian-made military equipment in operations that may violate international humanitarian norms. In February 2024, Belgium suspended two arms export licenses for gunpowder destined for Israel. This move was part of a broader push by European governments to scrutinize arms exports in light of allegations of international law violations. In Spain, Foreign Minister Jose Manuel Albares said in January that the country had ceased arms sales to Israel since Oct. 7. In May, it declared a prohibition on vessels transporting weapons to Israel from docking at Spanish ports. Following a non-binding parliamentary motion, the Canadian government decided to halt arms exports to Israel. The motion highlighted concerns about the ongoing conflict in Gaza and its impact on civilians. Suspension of arms transfers to Israel by Belgium, Italy, Spain, the Netherlands and the Japanese company Itochu Corporation. The European Union also recently discouraged arms exports to Israel. And finally, Denmark announced a "very restrictive approach" to arms exports to Israel, implementing case-by-case assessments considering the "disastrous consequences" of the conflict in Gaza. The Danish government has pledged to apply criteria based on the UN Arms Trade Treaty and European Union rules.
Foreign Courts
In 2022, following the 2019 ruling in Campaign Against Arms Trade (CAAT) v Secretary of State for International Trade, the UK Court of Appeal continued to review the UK government's decision to grant arms export licenses, particularly for Saudi Arabia. This case's relevance to Israel lies in the legal arguments surrounding compliance with international humanitarian law and the risk of weapons being used in violations of human rights. Activists have cited this case in calling for similar scrutiny of arms sales to Israel, particularly in relation to the Gaza conflict.
In 2023, the CAAT brought another legal challenge against the UK government, this time focusing on arms sales to Israel. The legal arguments rested on the UK's obligations under the Arms Trade Treaty and EU Common Position on arms exports, particularly concerning the risk of UK-supplied arms being used in the violation of international law. The court, while sympathetic to the humanitarian concerns, ruled that the UK government's assessment process for arms exports to Israel was lawful, though the case further highlighted growing public pressure to review arms sales policies. In 2024, a new judicial review was initiated by several human rights organizations, arguing that the UK’s continued sale of arms to Israel violated international law, particularly due to the potential use of those weapons in the occupied Palestinian territories. This case focused on specific incidents, including the 2023 Gaza bombings, where UK-supplied arms were allegedly used. The court allowed the case to proceed, indicating that the legality of the arms sales required deeper scrutiny. In addition, The UK suspended 30 out of 350 arms export licenses to Israel after a review concluded that there was a "clear risk" of these arms being used in ways that could breach international law. Foreign Secretary David Lammy emphasized the legal obligation to review export licenses in light of the ongoing conflict
On 12 February 2024, a Dutch appeals court ordered the Netherlands to halt the export of F-35 fighter jet parts to Israel. The court found that there was a “clear risk” that the parts would be used to commit or facilitate serious violations of international humanitarian law, as “there are many indications that Israel has violated the humanitarian law of war in a not insignificant number of cases”. The Dutch court pointed to the extensive civilian casualties, including thousands of children; the destruction of 60% of civilian homes and extensive damage to hospitals, water and food supplies, schools and religious buildings; widespread severe hunger; and the displacement of 85% of Palestinians in Gaza. It also highlighted evidence of the prolific use of imprecise “dumb bombs”; deliberate, disproportionate and indiscriminate attacks; failures to warn civilians of attacks; and incriminating statements by Israeli commanders and soldiers. “The need for an arms embargo on Israel is heightened by the International Court of Justice’s (ICJ) ruling on 26 January 2024 that there is a plausible risk of genocide in Gaza and the continuing serious harm to civilians since then”, the experts said. The Genocide Convention of 1948 requires States parties to employ all means reasonably available to them to prevent genocide in another state as far as possible. “This necessitates halting arms exports in the present circumstances”, the experts said.
Should Indian courts, too, have jurisdiction to prevent violations of international law, such as war crimes, through arms exports? France’s example shows that national courts can adopt jurisdiction based on international obligations to prevent complicity in atrocities. Yet, the difference lies in how the judiciary views its role in foreign policy—India’s courts, unlike France’s and the Dutch’s, have shown restraint in not disrupting arms exports, leaving such decisions to the government.
Case of Germany
The Nicaragua v. Germany case, titled Alleged Breaches of Certain International Obligations in Respect of the Occupied Palestinian Territory, is significant in the context of arms exports and international law. Nicaragua brought this case against Germany before the ICJ, arguing that Germany's arms exports to Israel violated its international obligations, particularly in light of ongoing violations of humanitarian law in the Occupied Palestinian Territories. This case is relevant to the broader questions of judicial intervention in arms exports, as it highlights how international legal mechanisms can be used to hold states accountable for actions that may contribute to human rights abuses in conflict zones.
One key lesson from this case is the principle that arms exports, even if legally permissible under domestic laws, may still violate international legal obligations. Nicaragua’s argument is based on the idea that Germany, by exporting arms to a state engaged in serious violations of international humanitarian law, is complicit in those violations. This underscores the broader point that international law, including treaties such as the Geneva Conventions and the Genocide Convention, can impose obligations on states to prevent complicity in war crimes and human rights abuses, even when the arms exports themselves are not illegal under domestic law.
This case also teaches us about the potential limitations of national courts in addressing such issues. While the Indian Supreme Court, as seen in Ashok Kumar Sharma, exercises restraint in foreign policy matters, the ICJ provides a forum where states can challenge the actions of other states based on international law. The Nicaragua v. Germany case shows that when domestic courts are unwilling or unable to intervene, international courts can still serve as venues for addressing alleged violations of international law. This distinction between national and international jurisdiction is crucial in understanding how legal accountability for arms exports can be pursued.
Finally, the case emphasizes the importance of balancing national interests with international legal obligations. In the Ashok Kumar Sharma case, the Indian judiciary deferred to the executive, recognizing the government's authority to assess national self-interest in arms exports. In contrast, the Nicaragua v. Germany case illustrates that international courts can scrutinize these decisions based on the global legal framework, particularly when the arms exports contribute to ongoing conflicts and humanitarian crises. This teaches us that while national courts may prioritize domestic concerns, international law demands a broader consideration of global responsibilities, even in matters of foreign policy and trade.
Conclusion: The Role of Courts in Global Conflicts
The question of whether the court can adopt jurisdiction to halt arms exports to a particular country is rooted in the Indian Constitution's principle of separation of powers. Articles 73 and 253 clearly place foreign policy and international relations under the executive's purview, granting the government the authority to make decisions regarding arms exports. In the case of Ashok Kumar Sharma, the Supreme Court reinforced this position, emphasizing that foreign policy decisions, such as exporting arms to Israel, involve considerations of national self-interest, economic policy, and geopolitical strategy that lie beyond the judiciary’s competence. The judiciary has historically exercised restraint in these matters, as foreign relations involve delicate, multifaceted concerns that courts are not equipped to handle.
Comparatively, courts in other jurisdictions, such as the UK and the Netherlands, have approached arms export cases with more scrutiny but often still defer to the government. The UK Court of Appeal’s decision in Campaign Against Arms Trade (CAAT) v. Secretary of State for International Trade reviewed the lawfulness of arms sales to Saudi Arabia based on international humanitarian law but ultimately upheld the government’s decision. Similarly, the Dutch court’s 2024 ruling to halt arms exports to Israel was based on concerns over international humanitarian law, yet these instances reflect unique judicial interventions influenced by specific national and international contexts. In India, the judiciary maintains that arms exports remain within the executive's domain.
The Indian judiciary’s deference is further highlighted when compared to international forums like the ICJ where cases such as Nicaragua v. Germany challenge arms exports based on violations of international law. However, national courts like India’s are bound by constitutional limitations, and the Supreme Court has reiterated that it cannot dictate foreign policy decisions like arms exports. The power to evaluate and balance national self-interest in foreign relations rests firmly with the government, with the judiciary taking a more restrained approach, especially in the complex arena of international relations and trade.
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