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Article Reviewed:

L R Penna, ‘Traditional Asian Approaches: An Indian View’


(1980) 9 Australian Year Book of International Law 168

The article ‘Traditional Asian Approaches: An Indian View’ by L.R. Penna seeks to address
that the well-known jurists and publicists apparently passionate with the Austinian formation
of law refuse to believe that the structures of ancient societies were favorable for the growth of
a body of systematic rules regulating interstate activities and relationships. The idea of an
international law in ancient India may seem to them to be a surprising phenomenon.

It is clear from the Introduction of the article that the ancient political order was in a state of
conflict but also were concentrated efforts to develop of the laws of war and humanitarianism
in such conflicts. The author rightly points out that the warfare in India has been verbalized to
an incomparable degree by the social factors of geography and population movement. In course
of development of warfare in India, there have lots of influence from its long history of war
and revolution.

While modern International Humanitarian law has roots run deep in history. In early religious
and secular writings of ancient India, for example, Hindu Code of Manu, Deshi Dharma, Srutis,
customary law, Smritis, The epics, Dharmasutras, and Puranas etc. An important part of the
law was concerned with the rightful manner of war, displays an astounding degree of
humaneness, if not softness, in matters of warfare. Professor Arthur Nussbaum points out:
According to Manu, an honorable warrior is supposed, for instance, not to strike an enemy who
is sleeping, or has lost his coat of arms, or is naked, or is overcome with grief, or has turned to
flight. These, and many similar prescriptions seem to relate to inter-Indian feuds; even so, it is
difficult to believe that they had any major significance in actual combat, especially as they
were not fortified by legal sanctions.1

As Chacko points out: states in ancient India observed rules of deshi Dharma which were
largely the product of a common religion, culture, and civilization which they possessed as
their common heritage.2 L.R. Penna rightly points out-

Dharma pervades throughout the Hindu philosophical thought and social structure.
Dharma is created for the well-being of all creation. All that is free from doing any
harm to any created being is dharma. Dharma is the principle that is capable of

1
A Concise Histoe of the Law of Nations, 3-4.
2
C.J. Chacko, “ International law in India,” IJIL, vol 1, 1961
preserving the universe. In the purushartha, an individual's striving to attain the
ultimate (moksha or salvation), dharma is the foremost. Dharma is an expression of
wide import and refers to the aggregate of duties and obligations: religious, moral,
social and legal.

This is the important part of that law was concerned with the rightful manner of war, what
international lawyers call the jus in bello.

The author also examines some ancient laws relating to the treatment of victims of armed
conflict and clearly points out that in ancient India, the war was defined in the sense of an
offensive operation and a deliberate armed conflict. A king would not, in general, go to war for
mere issues and missions would be straddling after negotiation on serious issues. The author
also takes some line from the Mahabharata for presenting the ancient laws relating to war. The
warfare which has been mentioned in the Mahabharata was quite scientific and effective for
avoiding war. For example- In the Mahabharata Bhishma advised Yudhishitira:

"If thy endeavours after peace fail, then mayest thou engage in battle . . . 'The victory
that one acquires by battle is very inferior'. Therefore the collision of battle is not at all
desirable as long as it can be avoided. The policy of conciliation, of producing disunion
and making gifts should first be tried; battle, it is said, should come after these." For
Yudhisthir "Peace is better than war."

In ancient India, It was King’s responsibility to try to overcome his enemy by the alliance,
gifts, and by causing dissensions if possible: if all these fail then and then only should he wage.
Therefore, not unusual that war was seen as a chief characteristic of the state in ancient India.

Another outstanding feature of antique India's rules of conflict is the comprehensive protection
of the noncombatant people during armed conflicts which has nowadays emanated to be
recognized as a basic principle of modern international humanitarian law. Although killing an
enemy in war was permitted, some people were safe from killing on grounds of humanity and
justice. The author refers some lines from The Manusmriti, which prohibited killing in the
following cases-

"Nor should one mounted slay an enemy down on the ground, a eunuch (meaning one
wanting in manliness or a coward according to Medhahiti), a suppliant, one with
loosened hair, one seated, one who says 'I am thy prisoner' ; Nor one asleep, one
without armour, one naked, one without weapons, one not fighting, a looker-on, one
engaged with another; Nor one who has his arms broken, a distressed man, one badly
hit, one afraid, one who has fled; remembering virtue one should not slay them".
That the rules recitation to the protection of the civilian population in times of war were not a
mere theory in India is supported by the following accounts of Megasthenes, Yuan Chwang,
Selukos, and others. In ancient India, there also had a practice of taking prisoners of war but
the treatment that was accorded was humane and generous. The Mahabharata records the
practice:

"Enemies captured in war are not to be killed but are to be treated as one's own
children".

According to Dharma slavery, the sale of children was totally prohibited in ancient India. In
the case of female prisoners of war, they were persuaded to marry persons of the conqueror's
choice. If they declined they were sent back to their homes under escort. The Laws of war were
very elaborate in ancient India. Their execution was always underlined. But there were
religious sanctions. To comply with the laws of war was like comply with the ordainments of
God.

The author also seeks to address the situation of Humanitarian Law in Modern India. India is a
Party to the four Geneva Conventions and signed the Final Act, accepting the two Additional
Protocols. The constitution of India also provides safeguards enjoined in Protocol II. India is a
dualist country that’s why international laws will not be a part of national laws without national
implementation but India implement Geneva Conventions by enacting The Geneva
Conventions Act of 1966. The supreme court of India also gives some important judgments on
the basis of the Geneva Conventions.

I think the rules of warfare seem to have implemented a great effect on the conduct of
belligerents in ancient India and larger the degree of conventionality, the more laudable it was.
The fear of ignominy, reprisals, interference by third states, adversative judgments by the
moral and virtuous combatants and coercion of hellish tortures and afterlife punishments
deterred the belligerents from departing from the norms and implementing dishonorable and
questionable means and approaches of warfare. As part of dharma, the rules of warfare
obsessed religious sanction which a belligerent could disregard only at its own peril. To say
so is not to recommend that those rules were always proceeded upon in their fullness.

In conclusion, although their shortcomings and limitations the rules of warfare that the states
of ancient India had established and observed in actual practice gave an articulate expression
to the view that war should be avoided as far as possible, and if it becomes unavoidable it
should be carried on only within the boundaries of law and good faith. These understandings
are no less significant today than they were in ancient India.

Md. Lutfur Rahman


ID: SAU/LLM/2018/01
LLM (First Semester)