Introduction
Sieges are a tactic of war used to isolate an area and force its surrender. They appear frequently in historical accounts of conflicts such as the Battle of Jericho and the Trojan War and have also been employed relatively more recently in Leningrad, Sarajevo and Aleppo.[1] The humanitarian impact on the besieged population has often been tragic. As Kashmir enters its second month of communication lockdown following the abrogation of Article 370 with scant information trickling out from the valley to the outside world, journalists, politicians and news sites have referred to the situation as a siege.[2]
This article will examine the law governing sieges in an armed conflict and assess whether Kashmir is in fact under siege. It is an addendum to our previous legal memorandum on the Kashmir conflict in which we conclude that the valley has been occupied and unlawfully annexed by India.[3] This article is intended to be read in conjunction with our broader research on the conflict.
What is a Siege?
Sieges are not defined in the law of armed conflict or in public international law generally. However, a helpful albeit political definition is offered by Bechner, Berti and Jackson who describe a siege as ‘any attempt by an adversary to control access into and out of a town, neighbourhood or other terrain of strategic significant to achieve a military or political objective’.[4] Modern legal vernacular often refers to sieges as an ‘encirclement’ referring to troop presence which would prevent anyone from escaping and allow for control of all entry and exit points for essential goods. This is to separate the besieged area from any reinforcements and logistical supplies. Watts argues that control of access and isolation are the essential components of a siege.[5]
Control of Access
The intensity and highly concentrated Indian troop presence in the area and their capacity to exercise their authority indicates their absolute level of control over all entry and exit points. Reliable figures for the current number of troops are not available, however, estimates range from between 600,000 to 800,000. This means that there is one Indian soldier for approximately every 10 Kashmiris. Moreover, following the abrogation of Article 370 on August 5, 2019 freedom of movement was severely curtailed in the valley as a curfew was imposed, Kashmiris were not even allowed out of their homes for Eid prayers, and all but a handful of civilians were forced to stay in the state.[6] A government report from September 6, 2019, indicates that over 3,800 people have been arrested in the region’s biggest crackdown since the abrogation.[7] The communication blackout imposed on the state and the fact that humanitarian relief services were not allowed into the valley meant that it was entirely isolated and completely subject to Indian control.
Does control require complete encirclement?
Whether there was complete encirclement of the valley is unclear, however, jurisprudence indicates that this may not be necessary for an area to be classified as a besieged locality. In the case of Prosecutor v. Dragomir Milošević where the International Criminal Tribunal for the former Yugoslavia (ICTY) addressed the siege of Sarajevo, it was ruled that the city was under siege despite the fact that there were some limited opportunities for people to leave the city.[8] The Trial Chamber in that case held that:
“…this was not a siege in the classical sense of a city being surrounded, it was certainly a siege in the sense that it was a military operation, characterized by a persistent attack or campaign…during which the civilian population was denied regular access to food, water, medicine and other essential supplies, and deprived of its right to leave the city freely at its own will and pace”[9]
Interestingly, the siege of Sarajevo bears some parallels to the situation in Kashmir. The Bosnian Serbs who had besieged the city aimed to bisect it and force the Bosnian government to capitulate to secede to form a separate Serb state.[10] Furthermore, Serb forces had limited the energy, electricity and food and medical supplies to Sarajevo.[11] Similarly, in Kashmir there were reports of electricity and water supplies being cut off to residents, though water services were soon resumed, and many reports of food and medicine shortages.[12] Moreover, tear gas and pellet guns have been used as crowd-control after the curfew was lifted indicating the presence of a persistent attack.
Therefore, allowing a small number of civilians to leave the valley in the days following the abrogation does not vitiate the classification of the situation as a siege. More importantly, all other civilians were placed in a state of complete lockdown and Indian forces had curtailed all freedom of movement of the besieged population and cut them off from essential supplies. Jammu and Kashmir had been effectively isolated.
Isolation
Isolation seems to be the essential component of a siege and occurs in three forms:[13]
- Physical isolation – this includes separation from logistical supplies and reinforcement and is essential to attrition tactics focused on wearing down the enemy so that they surrender. India controls all control points to the valley and in the initial days after the abrogation placed a strict restrictions on the freedom of movement of Kashmiris, these were eventually relaxed on 10th August 2019 according to reports following which protests took place.[14]
- Psychological isolation – this is important as the demoralisation of the besieged force and population is seen as an important part of coercing them to surrender. In Prosecutor v. Dragomir Milošević the ICTY Trial Chamber noted that the inability of residents to leave the besieged city ‘unavoidably weakened the besieged population’s will to resist, and worse, it left deep and irremovable mental scars on that population as a whole’.[15] Residents of Jammu and Kashmir already have increased anxiety, depression and post-traumatic stress disorder[16] and this will likely be exacerbated due to this isolation
- Electronic isolation – this has become an important form of isolation as telecommunications are increasingly used to coordinate resistance and potential attacks. It reduces the besieged force’s capability for defence and deprives it of intelligence. The communication blackout imposed on Kashmir performed the dual function of hindering the ability of the population to resist and coordinate protests and also isolating them psychologically from any moral support from family and friends outside the state.
Are Sieges Illegal?
Sieges are not outlawed in the law of armed conflict and as such are a legal method of warfare so long as they follow IHL rules. However, the Syrian siege was illegal under international law due to Security Council Resolution 2139 which called for it to be lifted.[17] Security Council Resolutions are not sufficiently ‘law-making’, however, to enforce this as a rule on all states.
It has been contended that the prerogative to conduct a siege is so reduced by the rules regulating them that they may be, if not impossible, then highly impractical to conduct legally. It is to these rules that we now turn.
What Rules Regulate a Siege?
Cardinal rules of the law of armed conflict relating to distinction, humanity, proportionality, precaution and limitation apply to sieges and protect those not directly involved in hostilities. These have been covered in more detail in our legal memorandum on the occupation and annexation of Jammu and Kashmir. They are to be respected by the besieging force as well as any armed actors in the besieged area. Grave breaches of these rules can amount to war crimes. Amnesty International referred to the indiscriminate barrel bombing of besieged Daraya in Syria as a war crime.[18] Stanislav Galić, was also prosecuted and sentenced for his role in the siege of Sarajevo. The ICTY convicted him of unlawfully inflicting terror on the civilian population by conducting a shelling and sniping campaign in the city which was indiscriminate and disproportionate.[19] The use of pellet guns and tear gas in Kashmir by Indian forces may also have had a similar effect in inflicting terror on the civilian population.
There are also rules in the law of armed conflict which are specific to sieges, however, these contain vague provisions which often do not offer particularly robust protection to besieged populations. Further prohibitions in IHL, however, against starvation and objects indispensable to the survival of a population do significantly limit the practice of placing areas under siege. These are examined in this section.
The Applicable Rules specific to Sieges
Article 27 of the Hague Regulations 1907 provides that in a siege, all cultural and historic buildings as well as hospitals not used for military purposes are to be spared ‘as far as possible’.[20] The besieged are to distinguish these premises through the use of distinctive and visible signs. The use of the phrase ‘as far as possible’ waters down this obligation on the besieging force which may discretionarily decide the buildings it has the capacity to spare. The wording also makes it arguably contingent on the besieged having marked protected buildings in the first place.
Evacuation
Article 17 of the Fourth Geneva Convention states that:
The Parties to the conflict shall endeavour to conclude local agreements for the removal from besieged or encircled areas, of wounded, sick, infirm, and aged persons, children and maternity cases, and for the passage of ministers of all religions, medical personnel and medical equipment on their way to such areas.[21]
The class of people entitled to evacuation is extremely narrow with healthy, adult civilians who are not pregnant left outside its scope and required to stay in the besieged area. Furthermore, the duty to evacuate is diluted by the paltry requirement that parties merely ‘endeavour to conclude’ agreements providing for their evacuation. Therefore, evacuation of the civilian population in general from a besieged area is not required under the law of armed conflict.
Humanitarian Access
Article 59 of the Fourth Geneva Convention states that if any part of the population in Occupied Territories is inadequately supplied, then the Occupying Power is to agree to relief schemes on behalf of the population and facilitate them in any way it can. All Contracting Parties are to permit the free passage of these consignments and guarantee their protection. Rule 56 of the ICRC’s Study on Customary International Humanitarian Law provides that parties must ensure the freedom of movement of authorised humanitarian relief personnel essential to the exercise of their functions unless limited by military necessity.[22] These limitations are to be temporary in specific areas, not general. Any armed actors inside the besieged area are also obliged to collect and care for the sick and wounded and not divert or frustrate aid delivery to civilians.
India, as the Occupying Power, must, therefore, allow the Occupied Population to avail humanitarian relief. However, no human rights officials have been able to access the area. UN Secretary-General Antonio Guterres stated that he hoped India would move forward on the request made by UN Human Rights High Commissioner Michelle Bachelet to allow a “humanitarian team” to visit Kashmir.[23] As of yet, no such request has been entertained by Indian forces and Jammu and Kashmir remains isolated and removed from aid efforts.
Prohibition of Starvation
The most important IHL rule limiting the ability of a military force to conduct a siege is that prohibiting starvation. Article 54 of Additional Protocol I to the Geneva Conventions prohibits the starvation of civilians as a method of warfare.[24] Whilst ‘starvation’ is not defined in the Geneva Conventions and appears to be a rather indeterminately high bar, the ICRC has clarified in its commentaries that the term includes causing the population to ‘suffer hunger’.[25] Some commentators argue for a broad interpretation of the term to include all goods essential for survival, even blankets and heating oil.[26]
This provision does in fact go some way in protecting a population under siege which is particularly susceptible to the threat of starvation. Intentionally starving civilians as a method of warfare and depriving them of objects indispensable to their survival is also a war crime under Article 8(2)(b)(xxv) of the Rome Statute.[27] Ban Ki-Moon when he was UN Secretary General also stated unequivocally: “Let me be clear: The use of starvation as a weapon of war is a war crime.”[28]
Furthermore, Article 54(2) prohibits attacking, destroying, removing or rendering unless objects indispensable to the survival of the civilian population such as foodstuffs, agricultural areas, crops, livestock, drinking water installations and supplies in order to achieve a military end.[29] Article 54(3) does permit the destruction of objects solely used for the armed forces or in direct support of military action, however, this is also prohibited if it will leave civilians with inadequate food or water as to cause starvation or force its movement.
The ICRC considers these provisions to be customary international law therefore they are binding on India even though they have not ratified the Protocol. This obligation has been acknowledged and applied in domestic contexts as well. The Israeli High Court of Justice in Physicians for Human Rights et al. v. IDF Commander in Gaza addressed the question of whether Israel, as an Occupying Power had the duty to supply water, food, electricity and medical supplies etc to the besieged Gaza Strip.[30] The Court ruled that the IDF had to take the food requirements of locals into account when planning for military operations with international organisations assisting in the distribution of food aid.[31] Furthermore, in Perišić and others, the Croatian District Court of Zadar in Croatia prosecuted the starvation of civilians during the siege of Zadar as a war crime.[32]
In the days after the abrogation, there were reports of growing food shortages in Jammu and Kashmir with ‘mounting desperation as food supplies and money’ dried up.[33] Doctors were arrested for bringing attention to these shortages and publicly stating that life-saving medicines were running out which would result in deaths.[34] There were many reports of shortage of medicine with some claiming that baby food was not available.[35] The curfew and lockdown also affected the ability of civilians to access emergency medical services. Electricity and water services, which were also cut off, could also be deemed to be objects indispensable to the survival of the civilian population. By refusing humanitarian access and allowing the risk of medicine and food shortages which may cause hunger to the civilian population, India is violating these rules.
Is Kashmir under Siege?
Following the abrogation of Article 370, Jammu and Kashmir was placed under siege. Indian forces controlled the entire area and all exit and entry points, closing off logistical provisions and even food and medical supplies to the valley. The state was completely cut off from the rest of the world through a concerted imposition of physical, psychological and electronic isolation to ensure its surrender. The communication lockdown, restrictions on movement and refusal to grant humanitarian access were in violation of IHL rules and human rights norms that India was obligated to uphold. This is especially in light of the fact that there were concerns that people would suffer hunger in the state due to food shortages. Food and medical shortages in a siege are a grave breach under IHL and may constitute war crimes. Whilst this physical isolation was somewhat lessened following the relaxation of curfew and population movement, all other forms of sequestration (electronic and psychological) have remained in place. This isolation is now entering its 44th day and India has continued to refuse to grant access to relief services and UN actors. Sieges have historically been the sites of harsh and terrible human suffering, it is hoped that Jammu and Kashmir’s isolation is lifted and the scenes of Sarajevo, Leningrad or Aleppo will not be repeated.
References:
[1] See Elżbieta Mikos-Skuza, Siege Warfare In The 21st Century From The Perspective Of International Humanitarian Law, Wroclaw Review of Law, Administration & Economics, [Vol 8:2 Special Issue 2018] pp.319-330
[2] See for instance coverage by Al-Jazeera which repeatedly refers to the situation as a siege, as well as articles by the Kashmiri journalist Mirza Waheed, and statements by Pakistan’s PM, Imran Khan
[3] See RSIL, Legal Memorandum on the Status of Jammu and Kashmir, August 15, 2019, available at: https://rsilpak.org/2019/08/legal-memorandum-the-status-of-jammu-kashmir-under-international-law/
[4] Lionel M. Beehner, Benedetta Berti & Michael T. Jackson, The Strategic Logic of Sieges in Counterinsurgencies, 47 Parameters, 2017
[5] Sean Watts, Under Siege: International Humanitarian Law and Security Council Practice concerning Urban Siege Operations, Research and Policy Paper, Counterterrorism and Humanitarian Engagement Project, May 2014
[6] Jacobin, Kashmir Has Been Turned Invisible, Samreen Mushtaq & Mudasir Amin, August 14, 2019, https://www.jacobinmag.com/2019/08/kashmir-occupation-india-srinagar-narendra-modi
[7] Al Jazeera, Kashmir under lockdown: all the latest updates, https://www.aljazeera.com/news/2019/08/india-revokes-kashmir-special-status-latest-updates-190806134011673.html
[8] Case No. IT-98-29/1-T, Prosecutor v. Dragomir Milošević, Judgement of 12 December 2017, [751]
[9] Ibid
[10] Sean Watts, Humanitarian Logic and the Law of Siege: A Study of the Oxford Guidance on Relief Actions, 95 Int’l L. Stud. Ser. US Naval War Col. [i] (2019)
[11] Case No. IT-98-29/1-T, Prosecutor v. Dragomir Milošević, Judgement of 12 December 2017, [726]
[12] Al Jazeera, Anger and defiance mark one month of Kashmir siege, Rifat Fareed, 5 Sept 2019 available at: https://www.aljazeera.com/news/2019/09/anger-defiance-mark-month-kashmir-siege-190905060143123.html
[13] Supra (n.5)
[14] The Guardian, Kashmir curfew eased in Srinagar but blackout remains, Rebecca Ratcliffe, Shah Meer Baloch, Sunday 11 August, available at: https://www.theguardian.com/world/2019/aug/10/kashmir-protests-india-curfew
[15] Case No. IT-98-29/1-T, Prosecutor v. Dragomir Milošević, Judgement of 12 December 2017, [910]
[16] See The Lancet, editorial, Fear and Uncertainty around Kashmir’s Future, August 17, 2019, available at: https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(19)31939-7/fulltext
[17] UN Security Council, Security Council resolution 2139 (2014) [on the Middle East], 22 February 2014, S/RES/2139 (2014)
[18] Amnesty International, Syria: War crimes amplify suffering of Eastern Ghouta’s bombed and besieged civilians’, 12 August 2015, available at https://www.amnesty.org/en/latest/news/2015/08/syria-warcrimes-amplify-suffering-of-eastern-ghoutas-bombed-and-besieged-civilians/
[19] Prosecutor v Galic, Appeals Chamber Judgment, Case. No. IT-98-29-A, 30 November 2006
[20] International Conferences (The Hague), Hague Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land, 18 October 1907, Article 27
[21] Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 12 August 1949, 75 UNTS 287, Article 17
[22] International Committee of the Red Cross (ICRC), Customary International Humanitarian Law , 2005, Volume I: Rules
[23] Khaleej Times, UN hopes negotiations for humanitarian access to Kashmir goes forward, IANS/United Nations, August 24, 2019, available at: https://www.khaleejtimes.com/international/india/un-hopes-negotiations-for-humanitarian-access-to-kashmir-goes-forward
[24] Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3, Article 54
[25] Commentary of 1987 to Additional Protocol I, page 652, [2089]
[26] Chatham House Briefing, International Law Programme, Emanuela-Chiara Gillard, Sieges, the Law and Protecting Civilians, June 2019, available at: https://www.chathamhouse.org/sites/default/files/publications/research/2019-06-27-Sieges-Protecting-Civilians_0.pdf
[27] UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998
[28] Just Security, Siege Warfare and the Starvation of Civilians as a Weapon of War and War Crime, Beth Van Schaack, February 4, 2016, https://www.justsecurity.org/29157/siege-warfare-starvation-civilians-war-crime/
[29] See Sean Watts, Under Siege: International Humanitarian Law and Security Council Practice concerning Urban Siege Operations, Research and Policy Paper, Counterterrorism and Humanitarian Engagement Project, May 2014
[30] Physicians for Human Rights et al. v. IDF Commander in Gaza [2004] para. 20
[31] See Susan Power, Siege Warfare In Syria: Prosecuting The Starvation Of Civilians, Amsterdam Law Forum, Vol 8:2 (2016)
[32] Croatia, District Court of Zadar, Perišić and Others case, Judgment (1997)
[33] The Telegraph, Kashmir residents say they are starving as first accounts of India’s lock-down of region emerge, Joe Wallen, 7 August 2019, https://www.telegraph.co.uk/news/2019/08/07/kashmir-residents-say-starving-first-accounts-surface-lock-down/
[34] The Telegraph, Kashmiri doctor arrested after warning blackout could cause deaths, Joe Wallen, 27 August 2019, https://www.telegraph.co.uk/news/2019/08/27/kashmiri-doctor-arrested-warning-blackout-could-cause-deaths/
[35] Kashmir Dispatch 11, Valley Running Out of Medicines With No Fresh Supply Coming, Say Doctors, Aakash Hassan, August 25, 2019, https://www.news18.com/news/india/kashmir-dispatch-11-valley-running-out-of-medicines-with-no-fresh-supply-coming-say-doctors-2282033.html
