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Humantarian Law PDF
Humantarian Law PDF
HISTORICAL DEVELOPMENT OF
HUMANITARIAN LAW
62
from the dictates of public conscience”2. 3 This principle, now thus
crystallized for us, has developed as part of the evolution of human
civilization down the ages. It emphasizes the universality of the essence of
international humanitarian law. Finally, for that reason alone, compliance
with “the elementary considerations of humanity” is both a moral as well as
a legal duty of the parties to an armed conflict, it is the most natural thing to
do between human beings.
2 Art. 1, para. 2, 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.
3 The International Court of Justice, in the Corfu Channel case, spoke of “certain general and well
recognized principles, namely elementary considerations of humanity, even more exacting in peace
than in war’". I.C.J. Reports 1949, p. 22. See also its reiteration in the Nicaragua case, 1CJReports
1986, p. 112.
4 Nicaragua case, ICJReports 1986, p. 98.
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3.1 Development in Western Countries
Only so long as they put up resistance. Any soldier laying down his
arms, or obliged to do So because of injury, is no longer an enemy and may
therefore, to use the terms of the contemporary law of armed conflict, no
longer be the target of a military operation. It is in any case pointless to take
Almost all the countries in the world have adopted most of the
Convention that codify the law of war. However, already during the First
World War this clause was not observed, and it came to be considered
obsolete. The lawyers of several defendants accused of major war crimes at
Nuremberg invoked it in vain. The international military tribunal stated in its
judgment that the rules contained in the convention of the Hague and the
Geneva had becomes so implanted in the public conscience that they should
be considered a part of great international law binding all countries, whether
or not formally parties to them. It may be mentioned here, that all its first
session, the UN General Assembly unanimously recognized what is known
as the law of Nuremberg as a branch of general international law. The
Nuremberg tribunal’s opinion on the application of the pre-world war II
conventions could also hold true for the conventions of the 1949, since
almost all the countries in the world are now bound by them.
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humanitarian law the law which applied no matter what the causes of the
conflict is of paramount importance.
In the first period, covering the time between the end of World War II
and the early 1960s, the most important event was obviously the adoption of
the four Geneva Conventions of 12 August 1949 for the protection of war
victims, the sixtieth anniversary of which we are now to celebrate. It is
fortunate that their adoption proved possible soon after World War II and
was not delayed, as was the revision of the preceding Geneva Conventions
in the years after World War I. At that time the belief prevailed that the
League of Nations had brought permanent peace to the world. That belief
ruled out any consideration of new conventions on warfare. It was
consequently not until 1929 that two new conventions, one on the wounded
and sick, the other on prisoners of war, were adopted. However, a third
convention and perhaps the most urgent one, dealing with the protection of
civilians, met with political opposition and had not yet been adopted when
the world was again engulfed by war.
7 Professor Dietrich Schindler, International Review of the Red Cross No. 836, p. 716.
67
conference adopting them.
8 Article 7 of the First, Second and Third Conventions, Article 8 of the Fourth Convention.
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almost lapsed into oblivion. In university courses and treatises on
international law the traditional chapters on the law of war were simply
omitted. Only a few specialists and the ICRC cared about them. In 1956, the
ICRC, recognizing that the Conventions of 1949 did not provide sufficient
protection for the civilian population against indiscriminate warfare, drafted
rules to safeguard the civilian population from the effects of hostilities.9
They were approved by the International Red Cross Conference in New
Delhi in 1957, but elicited virtually no reaction from governments. This
discouraged the ICRC from taking further steps for the improvement of
international humanitarian law until the United Nations gave fresh impetus
in 1968.
9 The Laws of Armed Conflicts, 3d ed., Martinus Nijhoff Publishers, Henry Dunant Institute,
Dordrecht/Geneva, 1958, No. 28, p. 251
10 International Conference on Human Rights (Teheran), Resolution XXIII of 12 May 1968.
1! United Nations General Assembly, Resolution 2444 (XXIII) of 19 December 1968.
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additional humanitarian conventions to ensure better protection of victims
and the prohibition and limitation of the use of certain methods and means
of warfare. These resolutions opened the door for the elaboration of the two
Additional Protocols which were adopted in 1977.
In this period between the 1960s and the 1980s. the United Nations
became fully involved in questions of international humanitarian law and,
by combining that law with human rights, brought about the adoption of
new international humanitarian law instruments. As Frits Kalshoven aptly
stated, with UN Resolution 2444 of 1968 “the starting shot had been given
for an accelerated movement which brought the three currents: Geneva, The
Hague and New York, together in one main stream”. In spite of the
important role played by the United Nations in this regard, the preparation
of the Additional Protocols was left to the ICRC and the convocation of the
conference adopting them to the Swiss government. The UN itself also
adopted some treaties on questions of warfare during this period, notably the
Convention on the Prohibition of Military or any Other Hostile Use of
Environmental Modification Techniques of 197613 and the 1980 Convention
on Prohibitions or Restrictions on the Use of Certain Conventional Weapons
Which May be Deemed to be Excessively Injurious or to Have
Indiscriminate Effects.
12
Frits Kalshoven, Constraints on the Waging of War, ICRC, Geneva, 1987, pp. 22/23.
13
Adopted by UN General Assembly Resolution 31/72 of 10 December 1976.
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necessity of humanitarian action and humanitarian law become so evident as
it has today.
Since 1989, most armed conflicts have been internal conflicts. During
the Cold War, the animosity between the superpowers overshadowed all
other conflicts. Internal divergences, stemming from ethnic, religious or
political differences, were kept under control by external threats or
totalitarian regimes. When it ended, however, many regimes collapsed and
internal conflicts were no longer held in check. In several States rival
groups, often impelled by ethnic or religious fanaticism, became engaged in
embittered struggles. The expectation that the end of the Cold War would
lead to a period of peace and democratic regimes all over the world soon
vanished. Internal conflicts began to cause even greater humanitarian
problems than had occurred during the Cold War period. It was soon
realized that only the international community could resolve this situation.
For some time, the United Nations obtained satisfactory results by sending
observer missions or peace-keeping forces into States affected by internal
conflicts. This was the case in El Salvador, Cambodia and Mozambique.
However, such operations, which were based on the consent of the warring
parties, proved to be impossible or inadequate in later and more complex
conflicts, such as those in the fonner Yugoslavia, in Somalia, Rwanda,
Liberia and Sierra Leone. I shall not go into these conflicts and the
measures taken, but shall confine myself to pointing out five major
developments which international humanitarian law has undergone in this
period.
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international peace and give rise to measures under Chapter VII of the UN
Charter.14 The Security Council, by this decision, affirmed that respect for
human rights and humanitarian law constitutes an integral element of the
security system set up for the world organization.15 On the basis of this
finding, the Security Council has not only authorized the use of force in
several humanitarian disasters since then, but has also set up two
international criminal tribunals to prosecute persons responsible for serious
violations of international humanitarian law.16 By so doing the Security
Council has implicitly assumed the role of a supreme guardian of
international humanitarian law.
14 UN Security Council Resolution 794 (1992) on Somalia, Resolution 929 (1994) on Rwanda,
Resolution 770 (1992) on Bosnia Herzegovina and Resolution 1244 (1999) on Kosovo.
15 L. Condorelli, A-M La Rosa, S. Scherrer (eds.), The United Nations and International
Humanitarian law, Geneva, 1995, p. 226; similarly Luigi Condorelli, ibid., p. 462.
15 Security Council Resolution 827 (1993) establishing the International Tribunal for the Prosecution
of Persons Responsible for Serious Violations of International Humanitarian Law in the Territory
of the Former Yugoslavia since 1991, and Resolution 955 (1994) establishing the International
Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of
International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens
Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring
States, between 1 January 1994 and 31 December 1994.
17 Theodor Meron, "International criminalization of internal atrocities”, American Journal of
International Law, Vol. 89, 1995, pp. 554-577
72
the difference between them and international wars has steadily diminished.
As early as 1968, and again in 1970, the UN General Assembly
characterized some basic humanitarian principles as applicable “in all armed
conflicts”18 or in “armed conflicts of all types”.19 In many resolutions on
non-international conflicts in the past decade, the Security Council has
furthermore called upon the warring parties to observe international
humanitarian law and to desist from all breaches, without limiting itself to
rules on non-international anned conflicts.20 It is also revealing that
practically all humanitarian law treaties concluded in the past few years
have been made applicable to both international and internal anned
conflicts. It cannot be overlooked, however, that it would not be possible to
apply all provisions of the law of international armed conflicts to internal
armed conflicts.
O
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3.2 Historical Development of Humanitarian Law in India
The laws of war are as old as war itself and war is as old as life an earth.
In the west, there is a saying “love thy neighbor as thyself’. If you follow this
teaching, you will not fight with your neighbor. In India there is a saying
vasudev kutumbakam. It is profound statement. It forms part of philosophy of
our people. Our people lived by this idea. How can you fight if the whole world
is your family! It is for this reason that we do not like to wage war until the
same is thrust upon us.
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some effect of mitigating the harshness of war for combatants
and non-combatants alike. It is doubtful if any other civilization
set such humane ideals ofwarfare. ”
b) Wars were fought only between sunrise and sunset and that too, after
giving proper ultimatum to the other party.
f) The dead bodies of the enemy’s forces were respected and cremated
according to appropriate rules.
78
Places of religious worship, houses belonging to persons who were not
participating in the war or property that was not in the possession of armed
forces could not be attacked or destroyed, in accordance with recognized
customs and spiritual texts. Warfare was, as a rule, confined to combatants.
Consequently, the objects of attacks were the armed forces wherever they
existed, and neither city while the armed forces were marching through.
Later, Hiuen Tsang recorded: “petty rivalries and war was not
infrequent, but they did little harm to the country at large”.27
79
The distinction made between civilian and belligerents bears a surprising
similarity to article 48, 51(1), and 52(1 and 3) of Additional Protocol I. The
ancient Hindus recognized the distinction made between combatants and non-
combatants in modem humanitarian law. Those who were incapable of
protecting themselves or who were incapacitated were to be spared. In
prohibiting killing in the following cases, Manu recognized the contemporary
concept of hors de combat:
“Let him not strike one who (in fight) has climbed on an
eminence, nor a eunuch, nor one who joins the palms of his
hands (in supplication), nor one who (flees) with flying hair,
nor one who sit down, nor one who says ‘ I am thine ”
“ Nor one who sleeps, nor one who has lost his coat of mail,
nor one who is naked, nor one who is disarmed, nor one who
looks on without taking part in the fight, nor one who is fighting
with another (foe); ”
“Nor one whose weapons are broken, nor one afflicted with
(sorrow), nor one who has been grievously wounded, nor one
who is in fear, nor one who has turned to flight. 28 ”
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have climbed (in flight) on eminences or trees, messengers, and
29 tf
those who declare themselves to be cows or Brahmanas,
Budhayana added:
were eager to display their prowess. The Dharma of the Kshatriya was to fight
and maintain law and order. War was to be waged according to the rules, fairly
and not deceitfully. Bhishma lays down the principle of the fair fight:
29 Ibid. 10.18
30 Idib.p. 210
81
should be used. These are instruments of the wicked. One
should fight righteously without yielding to wrath or being
found of unnecessary slaughter. The righteous should always
act righteously towards those who are righteous. Even he that is
wicked should be subdued with fair means. It is better is to lay
down life itself in observance of rightousness than win victory
by sinful means”.31
Fair war was Samukha Yudha, which is to fight openly face-to-face and
not strike from behind.
As society began to stabilize and became more and more politically and
socially organized during the Vedic period, the Vedas, the Sastras and the epics
of Ramayana and Mahabharata started prescribing or assuming the existence of
laws and customs of war. There were two kinds of war: dharma
yuddha (righteous war) and adharma yuddha (unrighteous war). A righteous
war was fought for a righteous cause. Except for Kautilya’s prescriptions, most
other early publicists recorded a general theoretical agreement on banning
illegitimate methods of warfare: “A war for righteous cause must be
82
righteously conducted.”33 While the idea of non-violence (ahimsa) is found in
the Scriptures, it was largely ignored, except for the defiant, normative
contribution of Buddhism. Yet the impact of Buddhism was so great that it
converted Emperor Ashoka (273-232 BC), the greatest king of his time, to the
faith of non-violence. In Nehru’s words: “Unique among the victorious
monarchs and captains in history, he Ashoka decided to abandon warfare in the
foil tide of victory.” 34 But Ashoka remains an exception to this day, although
his conduct offered the most powerful challenge to the moral legitimacy of the
many opportunistic rules of warfare propounded by Kautilya, his grandfather’s
stem mentor. In terms of humanitarian law, Ashoka represents the earliest
incarnation of the principle of non-use of force in international relations that is
now enshrined in Article 2, paragraph 4, of the United Nations Charter.
Many ancient texts such as the Ramayana, the Mahabharata, the Agni
Purana, and the Manu-smrti embody a number of ethical precepts that emerged
in ancient India.35 These precepts may be categorized according to four
principal aspects of armed conflict as we identify them today:
1. Methods of warfare;
” Jawaharlal Nehru, The Discovery ofIndia, 5th reprint, Signet Press, Calcutta, 1948, p. 108.
M Ibid
^ J. C. Chacko, “India’s contribution to the field of international law concepts", Recueil des Cours,
Aeademie de droit international, The Hague, Vol. 93 (1958-1), pp. 121-218
83
4. Treatment of civilians. The main requirements of some of these
precepts are given below.
Methods of warfare
The credo of the ancient sages appears to have been that “a war for a
righteous cause must be righteously conducted”. Combat must be between two
warriors similarly placed. A warrior in armour should not fight with another
without similar protection. Warriors should fight only with equals. A king
should fight only with a king. A cavalry soldier should fight only with a cavalry
soldier, not with a chariot-borne warrior. He whose weapon has been broken,
whose bowstring has been cut or who has lost his chariot should not be struck.
Nagendra Singh, India and International Law, New Delhi, 1969, p.6
84
has openly disagreed with this precept.37 According to the Mahabharata, it was
customary to fight only during the day, and cease fighting at sunset until
daybreak.
Weapons of war
The principle that the use of weapons causing unnecessary suffering was
prohibited was recognized in ancient India. Poisoned or barbed arrows were
forbidden. The main aim of the use of weapons was to weaken the enemy and
place its warriors hors de combat, but not to massacre them with gay abandon.
A classic demonstration of this was given during Rama’s war with the demon
king, Ravana, when Rama forbade his brother, Lakshmana, to use a weapon of
war which would have destroyed the entire enemy race, including those who
did not bear arms, “because such destruction en masse was forbidden by the
ancient laws of war even though Ravana was fighting an unjust war with an
unrighteous objective and was classed as a devil-demon himself and hence
could be considered outside the then world of civilization”. This example is
entirely relevant in the context of contemporary debates on nuclear weapons.
There were copious rules relating to the treatment of persons who were
not directly involved in the war or who were captured as prisoners of war.
Enemy non-combatants, such as charioteers, mahouts (elephant drivers), war
musicians or priests, should not be fought with. A panic-stricken foe or an
enemy on the ran should not be followed in hot pursuit. Guards at the gates
should not be killed.
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A weak or wounded man, or one who has no son, should not be killed.
He who surrendered or was defeated should not be killed, but captured as a
prisoner of war and treated with dignity. A wounded prisoner should either be
sent home or should have his wounds medically treated. There is an oft-cited
instance apparently related to the Macedonian King Alexander’s invasion of
India in the summer of 326 BC. Alexander, after a hard-fought war, defeated
the Indian King Paurava (Poros) and took him prisoner. When he asked the
latter how he expected to be treated, Paurava advised him: “Act like a king”. So
impressed was Alexander by the valour and courage of the Indian king that he
not only returned his kingdom to him but also added some more territories to it,
and gained a faithful friend.
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woman and she. along with her husband and the mugal subedar, was sent to
Delhi under escort.
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and slaughter. Ala-ud-Din Khalji’s incursions into southern India were
associated with “the sack of cities, the slaughter of the people and the plunder
of temples”.38
Such was the mood of those times. Yet their history also records
dazzling instances of chivalry. From the State practice of the Ranas of Chittoor,
in Rajasthan, Nagendra Singh cites some examples of the release of prisoners
of war. In AD 1437, Maharana Kumbha of Chittoor defeated Sultan Mahmud
Khilji and brought him captive to Chittoor. Khilji remained a prisoner for six
months; thereafter he was set free without ransom. Again, Maharana Sanga
defeated Mahmud Khilji II, the King of Malwa and took him prisoner.
Subsequently, he set him free, “loaded him with gifts and reinstated him on the
throne”.
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the Sultanate of Bahmini and the Vijayanagara Empire in the south. After
several decades of war, the two kingdoms concluded a treaty in AD 1367
whereby, “being reproached by the ambassadors of Vijayanagara for
indiscriminate massacre of Hindu women and children, Muhammad Shah ‘took
oath, that he would not, hereafter, put to death a single enemy after a victory
and would bind his successors to observe the same line of conduct’ From that
time onwards, “it has been the general custom in the Deccan to spare the lives
of prisoners in war and not to shed blood of an enemy’s unarmed subjects”.
Although it is doubtful if such was “the general custom in the Deccan”
following the treaty, the treaty represents an illustration, albeit rare, of the
moral authority of humanitarian law amidst the clash of arms.
89
another”39Article 253 of the Constitution empowers the Indian Parliament to
enact any law in order to implement any treaty or agreement to which India is a
party, or even any decision of an international conference, notwithstanding
anything contained in the Constitution in respect of distribution of legislative
competence between Parliament and State (provincial) legislatures.
India became party to the 1949 Geneva Conventions for the Protection
of War Victims in 1950 (it has not yet become party to the 1977 Additional
Protocols), and incorporated them into its statute book through the Geneva
Conventions Act, 1960. The Statement of Objects and Reasons made by the
government while introducing the bill for this enactment explained that the
enactment was required because it was expected of India as a party to the
Conventions to provide for:
• extension of the protection given under the existing law to the emblem of
the red cross and to the two other emblems, namely, the red crescent on a
white ground and the red lion and sun on a white ground;
39 V. S. Mani, “Effectuation of international law through the municipal legal order: the law and practice
of India”, Asian Year Book ofInternational Law, Vol. 5, 1995, pp. 145-74.
40 In M. K. Balachandran, “Principles of international humanitarian law in the Indian Constitution and
domestic legislation”, Bulletin on International Humanitarian Law and Refugee Law, Vol. 1, New
Delhi, 1996, pp. 67-100, esp. p. 74.
90
The Act is in'five chapters. The first chapter deals with preliminaries
such as the title, extent and commencement of the Act, and definitions. It
clarifies that the Act provides for punishment of grave breaches of the
Conventions, committed by “any person” “within or without India”. The
second chapter incorporates punishment of offenders committing grave
breaches of the Conventions and the jurisdiction of courts to deal with the
breaches. The punishment encompasses death or life imprisonment for wilful
killing of a protected person, and imprisonment for fourteen years for other
offences. The Act specifies the level of civil court (Chief Metropolitan
Magistrate in Bombay, Madras or Calcutta, or a Court of Sessions in other
places) to exercise jurisdiction under the Act. However, court-martial
proceedings under the Army Act of 1950, Air Force Act of 1950 and the Navy
Act of 1957 are explicitly excluded from the application of the Act.
The third chapter provides for the procedure of trial of protected persons
and certain other persons, including the requirements of notice and legal
representation. The fourth chapter seeks to protect the Red Cross and other
emblems from abuse and provides for penalties there of.
The final chapter deals with matters like the cognizance of offences
under the Act and the power of the Government of India to make rules under
the Act. A crucial provision, however, is section 17, which specifically forbids
courts to take cognizance of any offence under the Act except on a complaint
by the Government or of an officer duly authorized, thereby preventing the
application of the Act against the government or its agencies.
The Geneva Conventions Act does not seem to have been an adequate
piece of legislation incorporating India’s international humanitarian law
91
obligations into domestic law41. The Supreme Court of India clearly noted
some of the limitations of the Act in Rev. Mons. Sebastiao Francisco Xavier
dos Remedios Monteiro v. The State of Goa42 as follows:
“It will thus be seen that the Act by itself does not give any
special remedy. It does give indirect protection by providing for
penalties for breaches of Conventions. The Conventions are not
made enforceable by government against itself nor does the Act
give a cause of action to any party for the enforcement of
Conventions. Thus there is only an obligation undertaken by the
Government of India to respect the conventions regarding the
treatment of civilian population but there is no right created in
favour ofprotected persons which the court has been asked to
enforce. If there is no provision of law which the courts can
enforce the court may be powerless and the court may have to
leave the matter to what Westlake aptly described as
indignation ofmankind. ” 43
92
The Supreme Court’s jurisprudence has, since 1977, undergone a sea-
change, inter alia in matters of human rights or fundamental rights in the
language of the Indian Constitution: in situations which reveal serious
inadequacies in the Indian law, the human rights provisions in the Constitution
have since then been interpreted and applied by the Court in harmony with
developments in international law, without waiting for the legislature to
formally amend domestic law. The Constitution of India makes some of the
fundamental rights available to “all persons”, not merely to Indian nationals.
Thus in the Chakma Refugees cases44 the Supreme Court of India specifically
held that the Article 21 guarantee of the right to life and personal liberty is
applicable to foreigners as well, and that the Indian State has an obligation to
protect the life and personal liberty of even refugees if they have been admitted
into the Indian territory. As applied by the Indian Supreme Court, Article 21
encompasses the whole gamut of protection of the person and dignity of an
individual and the reference to “personal liberty” covers most essentials of
criminal jurispmdence.
44 National Hitman Rights Commission v. State of Arunachal Pradesh, reported in (1996) 1 Supreme
Court Cases 742; State of Arunachal Pradesh v. Khttdiram Chakma, reported in (1994) Supp.
1 Supreme Court Cases 615; Louis De Raedt v. Union of India, reported in (1991) 3 Supreme Court
Cases 554.
45 S. N. Mukherjee v. Union ofIndia, (1990) 4 Supreme Court Cases 594, para. 42.
93
first six countries in the world to ratify the Geneva Convention in the year
1950.46
The Goa operation- During the Goa operations in Dec. 1961, the
Portuguese ship Albukark was captured and the officers and sailors of the ship
surrendered to the Indian navy and were taken POWs and were treated in
accordance with Geneva Convention till they were repatriated to Portugal.
The Indo- Chinese conflict in 1962- In this conflict, the Indian red cross
society in active cooperation with Chinese red cross brought back 3211 POWs
from china and also a few dead bodies.
The Indo-Pak conflict of 1965- In this conflict, there were many POWs
on both sides and organized relief camps as well various other facilities in
cooperation with the Red Cross and ICRC for providing succour to the
wounded and sick jawans.
46 P.K.. Goei, BuUentin on IHL & Refugee law, voi.l, no.2,July- dec, 1996. p.198.
94
buried with fall honour by Indian army and returned captured Pakistani soldiers
to Pakistan. Pakistan reciprocates and returned one Indian air force officer.
India has absorbed this spirit of farewell to arms and that is why from the
Buddha to Mahatma Gandhi, we find a humanitarian ethos in Indian culture.
The Bandung spirit also highlights in the 20th century what early Indian dharma
had taught. Jawaharlal Nehru stood for anti- imperialism and human solidarity.
He was one of architects of the Bandung conference. The declaration on the
promotion of world peace and co-operation at Bandung is proof of the Indian
humanitarian culture.47
95
Sambhava (respect for all religions).” In ancient times the first and foremost
duty of the king was to protect his people. Protection consisted in countering
internal threats as well as external aggression to man’s liberty.48 Hinduism, like
most religions, believes that war is undesirable because it involves the killing
of fellow human beings and hence should be avoided as a means of settling
disputes.49 However, it does acknowledge that there might be situations when it
is better to wage war than to tolerate evil.
The Dharma Sastras and epics recognized two kinds of war: Dharma
Yuddha (righteous war), and Adharma Yuddha (unrighteous war).
Adharma Yuddha was also known as Kutta Yuddha. Ancient Indian writers
enunciated several causes for war, which can be classified in four broad
96
categories: the desire to secure imperial power, either through aggression or
through the permitted modes of the Ahwameda or Vajapeya (special kinds of
sacri ces); self-preservation; the maintenance of the balance of power; and the
prevention by a monarch of the oppression of his people. The theft of a wife
was also a cause of war. For example, in the epic Ramayana, Ravana’s
abduction of Rama’s wife was the reason for waging war.
97
phaleshu kadachan). This single exhortation encapsulates for eternity the entire
foundation of military ethics, and its universal relevance remains unchanged in
India to this day. The philosophy of Dharma Yuddha has inspired many great
people throughout Indian history. In early days the practice was to declare a
war, and the Ramayana and Mahabhararta epic poems both stressed the need to
do so in the case of a righteous war. The practice of stopping hostilities at
sunset and returning to their respective camps to tend more easily to the day’s
casualties also dates from very ancient times. Manusmriti explains that the
three duties of a king were “not shrinking from battle, protecting the people and
attending on Brahmans.”50 If a king (raja) is challenged by his enemies, be
they equal, superior or inferior to him, he must engage in battle; he cannot
avoid it, bearing in mind the provisions of Kshaatra Dharma (religion of the
warrior class),51 which obliges him to defend himself when attacked. Kshaatra
Dharma requires him to take the lead in attacking those who threaten the lives
and ways of life of his subjects. Moreover, it demands that he sacrifice his own
life if that is necessary to protect the lives of others.52 Kautilya’s Arthasastra
was one of the greatest political books of ancient India.53 Kautilya, also
popularly known as Chanakya, was the key adviser to King Chandragupta
Maurya (317-293 BC). Chandragupta defeated the Nanda kings and stopped the
advance in particular of Alexander the Great’s successor Seleucus, preventing
him from invading western India. For the first time in Indian history most of
the Indian subcontinent was then united in a single empire. In 256 BC,
Chandragupta’s grandson Ashoka invaded Kalinga.
98
However, after wihiessing the suffering that ensued during the conquest
of it, he renounced war and turned to Buddhism and non-violence.54 Ashoka is
now widely regarded as one of the finest kings in world histoiy. Kautilya
counselled that it is best to wage war against an unjust king who has no public
support, yet it is wise to avoid war with a righteous king whose subjects will
fight vigorously on his behalf. He pointed out that when facing the choice as to
whom to attack, it is always best to attack an unjust kingdom. Therefore, a king
should march only against an enemy with disaffected subjects. If a king has the
option of attacking a strong king who is unjust or a weak king who is just, he
should actually attack the stronger king because that king’s subjects, weary of
injustice, will not help their ruler and might even join in the war against him.
Ashoka declared that in the future he would conquer only by morality or by
Dhamma, which a Prakrit word is meaning right conduct, duty, religion, law,
social justice and responsibility. Dhamma was his all-encompassing principle.
Ashoka promulgated rock edicts which established the law of piety and non
violence, the most famous of which was the 13th Edict because it high lights
his concern to institute the principle of non-violence:
54 Gerald Draper, “ e contribution of the Emperor Asoka Maurya to the development of the humanitarian
ideal in warfare” International Review of the Red Cross, No. 305, 1995, pp. 192-206
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deeply pained by the killing, dying and deportation that take
place when an unconquered country is conquered. ”55
In the 10th Rock Edict Ashoka stated plainly that he supported the
doctrine of Dhamma for happiness in the next world. He not only forsook
violence, but also spread his ideas beyond India. Thiruvalluvar, the Tamil
author of the Thirukkural (“Sacred Couplets”), was bom about 30 BC. In the
Tamil region this book, which contains numerous poems, is considered
equivalent to the Vedas of the Hindu scriptures. The Thirukkural is a renowned
work, eulogized as an ethical code of conduct for humanity. The revered poet
not only dealt with general administration, but also codified a clear set of rales
to govern people’s behaviour in social, political, religious and family circles.
The king was advised to avoid taking action which was not moral. A specific
warning of relevance today in the Thirukkural is that
35 Manoj Kumar Sinha, IRRC, Volume 87 Number 858 June 2005, p.290
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economic support was the prized possession of the king, and the army and its
exploits. All the 1,330 hemistichs (two lines of verse) convey simple images of
human life. The sacred verses deal very closely with the political and social
affairs of life. However, some of the ancient texts do provide for recourse to
unrighteous war for the self-preservation of a State. This position is held, for
example, by Sukra in Nitisara. He points out that a weak king has always had
problems in maintaining the State. To cope with this situation, Sukra suggests
three possible courses of action: a weak king should enter into a peace treaty
(sandhi) with his enemy, or resort to Mantra Yuddha (a war of intrigues) or
Kutta Yuddha (unrighteous war). Mantra Yuddha and Kutta Yuddha were
adopted to harass the enemy from the rear and all sides so as to devastate his
armed forces. Kautilya, in his Arthasastra, mentions three types of war for the
bene t of the State: open war; concealed war; and silent war.56 Although
Kautilya acknowledged that open warfare is the most righteous war, he did not
speak against waging any of these types of war for the consolidation and
expansion of the kingdom; in Adharma Yudda (unrighteous war) a declaration
of war was not possible, because it was a secret war.
There has, however, been little analysis of the role of Islam in shaping
the modem European law of war and its progeny international humanitarian
law. This thesis attempts to examine the influence of Islam on IHL since the
acceptance of the Ottoman Empire as a sovereign State within the European
State system, usually identified with its accession to the Treaty of Paris in
1856.57
56 Manoj Kumar Sinha, IRRC, Volume 87 Number 858 June 2005, p.291
:>1 Declaration Respecting Maritime Law, Paris, 16 April 1856.
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Islam and Islamic players are widely but incorrectly'assumed to have
had an insignificant role in the early development of international humanitarian
law. From the entry of the Ottoman Empire into the European States’ legal
system in 1856 until the first Hague Peace Conference in 1899, Islamic players
assumed only a minor role in the burgeoning development of the public
international law of warfare. On close inspection, that role is revealed as highly
significant in both the internationalization and humanization of the European
law of war. As this section of die study demonstrates, Islam at first represented
a critical oriental ‘other’ against which the emerging modernist law of war
delineated itself. Because of its own Universalist and humanist tendencies this
law was, however, forced to accommodate subjects from different cultural-
legal systems and consequently to abandon its Christian roots. Islam thus
prompted the definition of international humanitarian law in secular,
Universalist terms.
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Islamic discourse, but in the discourse of the European State system. Islamic
players and Islamic rhetoric wielded little power or influence within this
system, and correspondingly little power in the development of international
humanitarian law.
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of the movement and a) sovereignty, and b) Christianity. By forcing the Red
Cross movement to address these issues, the Balkan crisis provided the
occasion for a fundamental definitional process of international humanitarian
law.
58 Message from the Sublime Porte to the Federal Council, 16 November 1876, quoted in the Bulletin
inter-national des Societes de Secours aux Militaires blesses, No. 29, January 1877, pp. 35-37, p. 36.
104
largely because they associated it with the Crusades. Although all parties
agreed that the Red Cross had not been adopted in 1863 as a consciously
religious symbol, they could not fail to see that such protestations were having
little effect on the offence felt at the sight of the cross by Turkish troops in the
field or the resultant bloodshed. So dire was the situation that when the Red
Cross of Romania offered to send badly needed medical supplies to the
Ottoman Society, the latter had to refuse because it could not guarantee the
safety of the Romanian personnel.
59 Arthur Eyffinger, The 1899 Hague Peace Conference: ‘The Parliament of Man, the Federation of the
World, Kluwer Law International, The Hague, 1999;
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reshaping international humanitarian law to deal with the realities of post
colonial conflict. Their participation was marked, however, not by transnational
Islamism but by nationalism. The controversies60 which led to the 1973 call for
a diplomatic conference to amend the 1949 Geneva Conventions61 included
significant conflicts involving Islamic nationalist movements: the Arab-Israeli
conflict that broke out in 1948, which squarely raised the question of the
threshold of application of humanitarian law and the place of national liberation
movements within it;62 the Suez crisis of 1956; the Indo-Pakistani conflict of
September 1965; and especially the Algerian war of liberation in the late 1950s
and early 1960s, in which France’s failure to recognize Algerian belligerency
prevented Islamic insurgents from availing themselves of numerous protections
under IHL.
60 Elihu Lauterpacht, “The legal irrelevance of the ‘state of war’”, ASIL Proceedings 1968, pp. 58-68;
Julius Stone, Of Law and Nations, 1974, p. 427
61 Official Commentary to the 1949 Geneva Conventions, Jean Pictet (ed.), ICRC, Geneva, 1965.
62 Dietrich Schindler, “State of war, belligerency, armed conflict” in Antonio Cassese (ed.),The New
Humanitarian Law ofArmed Conflict, Editoriale Scientifica, Naples, 1979, pp. 3 and 8.
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