CHAPTER - 3

HISTORICAL DEVELOPMENT OF
HUMANITARIAN LAW

It is hardly possible to find documentary evidence of when and

where the first legal rales of a humanitarian nature emerged, and it would be
even more difficult to name the ‘creator5 of international humanitarian law.
For everywhere that the confrontation between tribes, clan, and the
followers of a leader or other forerunners of the states did not result in a
fight to the finish, rales arose for the purpose of limiting the effect of the
violence. Such rales, the precursors of present day international
humanitarian law, are to be found in all cultures. More often than not they
are embodied in the major literary works of the culture (for example, the
India epic Mahabharata), in religious books (such as the bible or the Koran)
or in rales on the art of war (the rales of Manu or the Japanese code of
behavior, the Bushido). In the European Middle Ages, the knights of
chivalry adopted strict rales on fighting, not least for their own protection.
The notion of chivalry has survived to this day. Such rales also existed and
still exist in culture with no written heritage.1

Humanitarian law applicable in armed conflict must be as old as armed

conflict itself. Resort to arms is, by and large, a demonstration of that
barbaric aspect of human nature which led political philosophers like
Thomas Hobbes to assume that human life in “the state of nature” is
“solitary, selfish, nasty, brutish and short”, and argue in favour of a
Leviathan an all powerful sovereign State. The irony of it is, however, that

1 Hans- Peter Gasser, International Humanitarian Law, 1993, Pp.6

61
the State, which has over the years come to establish a civilized internal
system for the maintenance of law and order and strives for the welfare of
the community, behaves on the international plane downright “selfish, nasty,
and brutish” in its dealings with other States, often throwing to the winds the
high ideals, the moral precepts and the principles of humanity which it
swears by and seeks to uphold within its national society.

The seminal problem of all law, and hence of international

humanitarian law, is the yawning gap between precepts and practice. That
the precepts are ingrained in the accumulated wisdom of all human
civilizations is beyond dispute. All civilizations have converged in then-
acceptance of them. All that the Battle of Solferino of 1859 and Henry
Dunant’s Red Cross movement have done in prompting such a widespread
compassionate response has principally been to revive, intensify, build upon
and sustain, on a continuous basis, those traditional precepts. Recognition of
this fact is important for several reasons. First and foremost, the precepts of
international humanitarian law belong to the whole of humanity, both
politically and culturally. They are not only products of the nascent
European civilization of the post Westphalian era. While Hugo Grotius
spoke of temperamenta ac belli (humane moderation during war) in the
early seventeenth century, the wise men of India and China discoursed on it
some five thousand years ago. Secondly, the famous Martens clause lays
down the principle (which, it is submitted, must be elevated to the position
of a jus cogens, i.e. a peremptory norm of international law from which no
derogation is permitted, within the meaning of Article 53 of the 1970
Vienna Convention on the Law of Treaties) that “civilians and combatants
remain under the protection and authority of the principles of international
law derived from established custom, from the principles of humanity and

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.

It is therefore pertinent to search for and identify the roots of the

principles of international humanitarian law in all great civilizations of the
world. Hence this excursus into the historical foundations of the principles
of that law in the Indian civilization through the ages, relating them to the
contemporary era. It must be noted, however, that since the Indian
civilization is no exception with regard to the general gap between precepts
and practice, the emphasis will be placed on the precepts, not on aberrations
in practice4. Indeed, bad and ruthless rulers are no monopoly of any
particular civilization.

The present study traces the evolution of humanitarian principles

through the evolution of the Indian polity from antiquity through medieval
and colonial times to the modem era.

In short, powerful lords and religious figures, wise men warlords

from all continents have since time immemorial attempted to limit the
consequences of war by means of generally binding rales.

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.
63
3.1 Development in Western Countries

The achievements of 19th century Europe must be viewed against this,

rich historical background. Today’s universal and for the most part written
international humanitarian law can be traced directly back to two persons,
both of whom were marked by a traumatic experience of war Henry
Dunnant and Francis Lieber. Dennant and Lieber both built on an idea
forwarded by Jean- Jacques Rousseau in the social contract, which appear in
1762: “war is in no way a relationship of man but relationship between
states, in which individuals are enemies by accident, not as men, but as
soldiers...” Rousseau continued, logically, that soldiers might not be fought
as long as they themselves are fighting. Once they lay down their weapons
“they again become mere men”. Their lives must be spared.5

Rousseau thus summed up the basic principle underlying international

humanitarian law, i.e. that the purpose of a bellicose attack may never be
destroy the enemy physically. In so doing he lays the foundation for the
distinction to be made between members of fighting force, the combatants,
on the other hand, and the remaining citizen of an enemy state, the civilian
not participating in the conflict, on the other. The use of force is permitted
only against the former, since the purpose of war is to overcome enemy
armed forces, not to destroy an enemy nation. But force may be used against
individual soldiers

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

Jean-Jacques Rousseau, A Treaties Of Social Contract, Book I, Chap. IV.

64
revenge on a simple soldier, as he cannot be held personally responsible for
the conflict.

The intellectual foundation for the rebirth of international

humanitarian law in the 19th century was therefore laid. Henry Dunant could
build on it. In his book, A Memory of Solferino6, he did not dwell so much
on the fact that wounded soldiers were mistreated or defenseless people
killed. He was deeply shocked by the absence of any form of help for the
wounded and dying. He therefore proposed two practical measures calling
for direct action; an international agreement on the neutralization of medical
personnel in the field, and the creation of a permanent organization for
practical assistance to the war wounded. The first led to the adoption in 1864
on the initial Geneva Convention, which has witnessed several major
advances in the field of humanitarian law.

1906 The Geneva Convention for the Amelioration of the

condition of the wounded and sick in armies in the field.

1907 The (tenth) Hague Convention for the adaptation of

maritime warfare of the principles of the Geneva
Convention.

1929 The two Geneva Conventions; one covering the same

ground as the Convention of 1864 and 1906; the other
relative to the treatment of prisoner of war.

1949 Four Geneva Conventions relating to the protection of

victims of war, the first and the third conventions are
revised version of the conventions of 1929, the second is
revision of the tenth Hague Conventions, 1907, the fourth

6 Henary Dunan:, “A Memory of Solferino”ICRC Geneva 1986.

65
 breaks fresh ground and deals with the protection of
civilian persons in time of war.

1977 The Two Protocols Additional to the Geneva Convention

of 1949, the first relative to the protection of the victims
of the international armed conflicts, the second of non-
intemational armed conflicts.

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.

It was realized that armed conflicts whatever their nature of

denomination, took place inspite of all efforts to outlaw them, and that,
further-more, the UN Charter admitted recourse to force in certain situations
for example, acting to maintenance or restore peace by virtue of a security
council decision, in self defense, or on the basis of the principle of self
determination of justifying recourse to force. On all such occasions, there
are always people who suffer, and it is those persons’ plight that is of
particular concern to the ICRC, indeed it is for them that international

66
humanitarian law the law which applied no matter what the causes of the
conflict is of paramount importance.

International Humanitarian Law since the Second World War

In terms of the progress made by international humanitarian law in

the last half century, three periods may be distinguished.

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.

After World War II, no expectations of permanent peace prevented

the revision of the Geneva Conventions. The United Nations nevertheless
kept aloof from this enterprise because it was thought that UN participation
in the revision of the law of war would undermine confidence in the
organization's capability to maintain peace. In conformity with earlier
practice, the International Committee of the Red Cross (ICRC) prepared the
new treaties and the Swiss government convened the international

7 Professor Dietrich Schindler, International Review of the Red Cross No. 836, p. 716.
67
conference adopting them.

Notwithstanding its abstention, the United Nations exerted a

considerable, though little noticed, influence on the Geneva Conventions,
for its efforts to bring about an international guarantee of human rights left
their imprint upon them. This is not surprising, as the Conventions were
adopted only a few months after the proclamation of the Universal
Declaration of Human Rights. The attention paid to human rights had the
effect that the traditional law of war was gradually transformed into a human
rights-oriented law. Traces of this can already be seen in the 1949
Conventions, which speak of the “rights” of protected persons instead of
only imposing obligations on the belligerents, and also stipulate that
o
protected persons cannot renounce their rights . In addition, Article 3
common to the four Conventions constitutes a kind of human rights
provision; it regulates the relationship between governments and their own
nationals in the event of an internal aimed conflict, thus a question
traditionally regulated by human rights provisions only. Furthermore, the
previously unknown term “international humanitarian law” was introduced
by the ICRC- in the early 1950s, largely replacing the terms “law of war” and
“law of armed conflicts”. It soon became generally used, somewhat blurring
the distinction between the law applicable in armed conflicts and the law of
human rights and giving rise to occasional confusion between these two
branches of international law.

In the years following their adoption, the Geneva Conventions

attracted surprisingly little interest. They were not considered as being of an
immediate relevance. Although they played a certain but rather minor role in
the wars in Korea and Indochina in the early 1950s, they subsequently

8 Article 7 of the First, Second and Third Conventions, Article 8 of the Fourth Convention.
68
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.

A second period in the development of international humanitarian law

started in the 1960s when several more extensive wars broke out, notably
the war in Vietnam, the civil war in Nigeria/Biafra, the wars between the
Arab States and Israel, and the wars of national liberation in Africa. The
latter type of conflicts in particular spurred the United Nations to ever-
greater activity. As from 1968, the General Assembly adopted periodical
resolutions demanding that wars of national liberation be regarded as
international armed conflicts in which the Geneva Conventions were to be
applied as a whole and freedom fighters to be treated as prisoners of war.
Also in 1968, the International Conference on Human Rights in Teheran10
and the UN General Assembly11 adopted resolutions under the title “Respect
for human rights in armed conflicts”, requesting the Secretary-General, in
consultation with the ICRC, to take steps (a) for the better application of
existing international humanitarian conventions, and (b) for the adoption of

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.
69
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.

A third period, marked by a particularly intensive and almost

revolutionary development of international humanitarian law showing
almost revolutionary traits, began after the end of the Cold War in 1989.
Never before had humanitarian issues and humanitarian law attracted so
much international attention as in this period. And never before did the

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.
70
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.

The first is the decision of the Security Council that large-scale

violations of human rights and international humanitarian law and the
ensuing magnitude of human suffering can constitute a threat to

71
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.

As a second development, it should be noted that the distinction

between international and non-international anned conflicts has lost much of
its significance. The law of internal armed conflict has been increasingly
aligned with the law of international armed conflict. This was especially
emphasized by the International Tribunal for the fonner Yugoslavia in its
Tadic decision (Jurisdiction) of 2 October 1995.17 One of the causes of this
development has been the proliferation of internal anned conflicts and the
growing seriousness of their repercussions upon the international
community. They can no longer be considered internal affairs of the
respective States, as they used to be. Moreover, all-out recourse to anned
violence in internal conflicts has become so generalized and so extreme that

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

The gradual disappearance of the distinction between non-

international and international anned conflicts has been facilitated by a third
development, the growing importance of customary law. The International
Criminal Tribunal, in its Tadic decision , came to the conclusion that many
principles originally applicable in international armed conflicts had only in
the course of time become customary rules applicable also in non-
international conflicts; it enumerated a considerable number of such
customary rules. This finding constitutes one of the most important results
of the post-Cold War developments. It shows that non-intemational armed
conflicts are regulated to a much greater extent by legal rules than had
generally been assumed. The International Court of Justice, in its Advisory

18 United Nations General Assembly, Resolution 2444 (XXIII).

19 UN General Assembly Resolution 2675 (XXV): “Basic Principles for the Protection of Civilian
Populations in Armed Conflicts”, adopted on 9 December 1970
20 Security Council Resolution 771 (1992),
21 http://www.un.org/ictj7tadic/appeal/decision
73
Opinion of 1996 on the legality of the use of nuclear weapons22, also
affirmed that a great majority of treaty rules on international humanitarian
law had become customary. It did not, however, specifically refer to rales on
internal armed conflicts.23

The fourth important development has been the influence of human

rights law on international humanitarian law. The fact that most
contemporary armed conflicts are internal conflicts has accentuated this
development, since in these conflicts human rights law and humanitarian
law play an equally important role. Most of the serious violations of
international humanitarian law are also violations of human rights. In most
internal armed conflicts, the Security Council and other UN organs have
appealed to the warring parties to respect both humanitarian and human
rights law.

The fifth important development, finally, can be seen in the statement

of the International Court of Justice, in its Advisory Opinion of 1996 on the
legality of the threat or use of nuclear weapons, that the fundamental
principles of humanitarian law constitute “intransgressible principles of
international customary law”. In other words, these principles belong to the
most fundamental norms of international law, norms which form part of
what could be called the unwritten constitution of the international
community. They are an indispensable foundation of that community.

All these developments have been brought about by judicial

pronouncements or by decisions of political organs of the United Nations,
but not by the conclusion of new treaties. Indeed, it would hardly have been
possible to attain the same results by treaties, for many governments would

22 ILM 35 (1996), 809 at 821 para 31.

23 I.C.J. Reports 1996, pp. 256-259, paras 75-84.
74
have been reluctant to give their express consent to limitations of what had
hitherto _ been considered internal affairs of States. Nevertheless,
governments have in the past few years also shown a considerable readiness
to adopt new treaties. There are, for instance, the two new Protocols to the
1980 Weapons Convention, that of 1995 on blinding laser weapons, and the
amended 1996 text of that on mines; the Ottawa Convention of 1997 on
anti-personnel mines; the 1998 Rome Statute of the International Criminal
Court; and the 1999 Second Protocol to the Hague Convention for the
Protection of Cultural Property in the Event of Armed Conflict. Another
important enactment to be mentioned, although it does not take the fonn of a
treaty, are the recently issued and long-awaited rules on the “Observance by
United Nations forces of international humanitarian law”, promulgated by
the UN Secretary-General on 6 August 1999.

In cases where the adoption of conventions could hardly have been

successful, private drafts have been elaborated which restate and develop the
existing lav/. The main examples are the 1990 San Remo rules on non-
international armed conflicts,24 the Turku Declaration of Minimum
Humanitarian Standards, also of 1990,25 and the 1994 San Remo Manual on
the law of armed conflicts at sea. These private drafts reinforce existing law
and contribute to the formation of customary rules. If intergovernmental
conferences had dealt with the respective subjects, this might have led to
some retrogressive developments.

24 JRRC, No. 278, September-October 1990, p. 404.

25 IRRC, No. 282, May-June 1991, p. 330.
75
Development of the Geneva Conventions from 1864 to 1949

76
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.

3.2.1 Humanitarian Law in Ancient India

Humanitarian raised the laws of warfare in ancient India to such a high

level that the distance of centuries vanished in the mist of time. While
humanitarianism contributed to the high order of interstate relations and
international customs, chivalry ennobled the ideal of warfare and its practice in
general conformed to that lofty ideal. Humanitarianism of the law regulating
wars in ancient India has been succinctly explained by Prof. Basham:

“For ( the more orthodox texts), the major motive of war is

glory, not gain. War is not merely a mean to an end, but part of
the warrior’s dharma & good for its own sake... Rules offair
fighting are laid down. For the later sources, such as manu, a
battle was ideally a gigantic tournament with many rules...
Homage and not annexation was the right fruit of victory... ”

... the chivalrous rules of war, probably based on very old

tradition, and codified in their present form among the martial
people of western India in post-Mawyan times, must have had

77
 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. ”

Ancient scriptures like Ramayana and Mahabharta tells us that all

possible efforts were made first to avert the war until it became apparent that
the waging of war until it became apparent that the waging of war was the only
solution for the protection and preservation of Dharma. These scriptures lay
down the code of conduct for fighting wars, which were scrupulously followed
by the warriors. Some of the rules in the said wars were as follows

a) The principle of avoiding unnecessary suffering and damage than what

was absolutely essential for the purpose of over powering the enemy
was rejected.

b) Wars were fought only between sunrise and sunset and that too, after
giving proper ultimatum to the other party.

c) The civilian population, women and children were neither attacked

nor taken into custody.

d) Unarmed soldiers, even kings and commanders, when disarmed were

not physically attacked.

e) The prisoner of war and injured persons were treated humanely.

f) The dead bodies of the enemy’s forces were respected and cremated
according to appropriate rules.

The ancient Indians made a distinction between military objects that

could be the target of attack and non-military objects that could not be attacked.

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.

Dharmayudha, the Hindu conceptualization of “just war”, was,

according to the Agni Purana, to leave the fruit and flower gardens, temples,
and other places of worship unmolested.

Magasthenes, the Greek ambassador of Seleucus Nicator at the court of

Chandragupta Maurya at Patliputra, chronicled:

“ Whereas among other nations it is usual, in the contests of

war, to ravage the soil, and thus reduce it to an uncultivated
waste, among Indians on the contrary, by whom husbandmen
are regarded as a class that is scared and inviolable, the tillers
of the soil, even the battle for the combatants of either side in
waging the conflict make carnage of each other but allow those
engaged in husbandry to remain qidte unmolested. Besides,
they neither ravage an enemy’s land with fire, nor cut down in
tree. 26”

Later, Hiuen Tsang recorded: “petty rivalries and war was not
infrequent, but they did little harm to the country at large”.27

26 J.W. McCrindle, Ancient India as described by Magasthenes (1926), p.33.

27 Quoted in V.S. Viswanatha, Internationa! Law in Ancient India (1925), p.18

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 ”

According to Gautama it is sinful to kill:

“...those who have lost their horses, charioteers, or arms, those

who join there hands in (supplication), those who flee with
flying hair, those who sit down with averted faces, those who

28 Sacred Book OfThe East, Vol. II (1876), 10.17

80
 have climbed (in flight) on eminences or trees, messengers, and
29 tf
those who declare themselves to be cows or Brahmanas,

Vridha-Harita exempted spectator from killing.

“Sankha, Yajnavalkya’s commentator, states that one soldier

should not kill another while the latter is drinking water, eating
his meals, or taking off his shoes; nor should one kill a woman,
a female elephant, a charioteer, a bard, or a Bharman; nor
should one is not a king kill one who is a king. 30 ”

Budhayana added:

“ Those who are in fear are intoxicated, insane or not of their

minds, (nor with those) who have lost their armour, (not with),
women, infants, aged men, and Brahmanas. ”

War according to the Mahabharta. was a manly sport in which a people

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:

“A Kshatriya must not put on armour for fighting a Kshatriya

unclad in mail. One should fight one and abandon the opponent
when the latter becomes disabled and to fight an army clad in
armour by putting an armour... one should not on horseback
proceed against a car warrior. A car warrior is to proceed
against a car warrior. Neither poisoned nor barbed arrows

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.

In the early, pre-Vedic, period, when Indian society was organized in

tribal communities, war between communities was “normal”, with no holds
barred.32 Yet in many parts of India, the process of war was divided into five
stages: 1. seizure of the enemy’s cattle; 2. mobilization for invasion; 3.
bombardment of the enemy fortress; 4. actual fighting; and 5. victory. The
seizure of cattle was an advance warning of an attack, and gave civilians and
non-combatants time to seek shelter.

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

jl Shanti Parva, 100.27-29

K. R. R. Sastry, “Hinduism and international law", Recueil des Cows, Academie de droit
international, The Hague, Vol. 117 (1966-1), pp. 503-614, pp. 567

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;

2. Means or weapons of war;

3. Treatment of persons hors de combat (i.e. those who, as wounded

or as prisoners, have been placed out of action); and

” 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.

A principle of proportionality seems to have existed with regard to the

use of weapons. Nagendra Singh quotes a stanza from the
Mahabharata highlighting the restraint shown by Arjuna who refrained from
using the Pasupastra(a “hyperdestructive” weapon granted to him by Lord
Siva, the god of destruction), because warfare then was restricted to
conventional weapons. Such use of unconventional weapons “was not even
moral, let alone in conformity with religion or the recognized laws of
warfare”.36

There should be no deception in methods of warfare. However, a famous

deviation, justified by the “righteousness” of war, was the trick played by
Yudhishthira on Drona by naming an elephant after the latter’s son,
Aswathhama, killing it and then shouting aloud that Aswathhama had been
killed in war and this led to the defeat of a heartbroken Drona. Fighting with
concealed weapons amounted to treachery and was condemned. Only Kautilya

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.

Treatment of non-combatants and prisoners of war

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.

yl Kantilya’s Arthascistra, R. Samasastry (transl.), 5th ed., Mysore, 1956.

85
 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.

3.2.2 Humanitarian Law in Medieval India

The annies of kings and commanders constantly followed the code of

conduct followed by the forces of ancient kings in India. Regarding the
treatment meted out to POWs, we have the classic example of king Poros,
addressing Alexander “you should treat me in the same way as a king treats
another king”.

An example from Maratha history depicts how women were protected

during armed conflicts. In the year 1660, receiving an intelligence report that
the Mugal subedar of kalian was carrying the government treasure to Delhi,
king Shivaji’s lieutenant attacked the subedar and captured treasure. The
subedar and his son and daughter-in-law were also taken in the custody. All the
captured persons were produced before shivaji. The lieutenant presented to
shivaji the daughter in law of the subedar as the ‘most valuable treasure’.
Shivaji appreciated the beauty of the young woman, but said ‘a lady is like
mother to us\ In according to Maratha custom, Shivaji presented a saree to the

86
woman and she. along with her husband and the mugal subedar, was sent to
Delhi under escort.

Another interesting event occurred in 1759 when a war being fought

between the armies of Aurangzeb and Guru Gobind Singh at Anandpur Sahib
in Punjab. Bhai kanhaiya was deputed to serve water to the soldiers of Sikh
army. While doing so, bhai kanhaiya also offered water to the wounded soldiers
of the mugal army. Seeing this, some Sikh soldiers got agitated and complained
to Guru Gobind Singh. They ever dubbed him as a traitor as he was offer in
water to the wounded soldiers of enemy which enabled them to regain strength
and fight against the sikh army. When complaint was made to Guru Gobind
Singh, he asked that kanhaiyya be produce before him. On being questioned by
Guru Gobind Singh, bhai kanhaiyya replied that “master, what can I do! I see
only yon in every wounded soldiers”. Guru Gobind Singh was pleased with this
replay and not only allowed kanhaiyya to continue serving water but also gave
him an ointment to ally on the wounds of injured soldiers without any
discrimination. A question arises in my mind; can there be a better example of
practical application of the humanitarian law in war! Indian history is replete
with such an example.

While the ancient traditions of Hinduism and Islam forbade the

committing of excesses during war, seldom were limits placed in actual
practice on methods and means of warfare. The Hindu and Muslim versions of
the just war doctrine were interpreted in a partisan way to permit, nay even
mandate, total elimination of the non-believer. Invaders such as Mahmud of
Ghazni, Mohammad of Ghaur, Nader Shah of Persia, and Timur of Samarkand
(Tamerlane) invaded India mainly to plunder her riches, and therefore their
military campaigns were marked by senseless pillaging, looting, destruction

87
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”.

There were other instances as well. In AD 1526, when Ibrahim Lodi,

Sultan of Delhi, was defeated by Raja Ram Chand and made prisoner, the Raja
honoured him by seating him on the throne. Nagendra Singh also notes another
“well-known classic example” (one of the “romantic anecdotes of Indian
history”) of the conduct of the young Mughal emperor, Humayun, soon after
the historic Battle of Panipat in 1526. Sultan Ibrahim Lodi and Vikramajit, the
ruler of Gwalior, were killed in the battle. The wives and children of the Raja
of Gwalior had been left in the Agra Fort and the Mughal army captured them.
Hearing of this, Prince Humayun intervened, treated them with courtesy, and
protected them from their captors.

Some treaties concluded at the end of a war contained provisions relating

to the repatriation of prisoners of war. Nagendra Singh cites a treaty between

jS R. C. Majumdar, A. C. Raychaudhuri and Kalikinov Datta, An Advanced History of India,

Macmillans, Madras, 1988 (reprint), p. 298.

88
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.

3.2.3 Humanitarian Law in Modern India

Since its accession to independence, India has charted for itself an

independent foreign policy. Jawaharlal Nehru, the architect of that policy,
proclaimed a year before independence:

“We propose, as far as possible, to keep away from the power

politics of groups, aligned against one another, which have led
in the past to world wars and which may again lead to disaster
of an even vaster scale. We believe that peace and freedom are
indivisible and the denial offreedom anywhere must endanger
freedom elsewhere and lead to conflict and war”

Article 51 of the Constitution of India, 1950, enjoins the State to

“endeavour to (a) promote international peace and security; (b) maintain just
and honourable relations between nations; (c) foster respect for international
law and treaty obligations in the dealings of organized peoples with one

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:

• punishment of “grave breaches” referred to in Article 50 of the First

Geneva Convention and equivalent articles of the succeeding
Conventions;

• conferment of jurisdiction on our courts to try offences under these

Conventions, even v/hen committed by foreigners outside India;

• 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;

• procedural matters relating to legal representation, appeal, etc.40

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:

“To begin with, the Geneva Conventions Act gives no specific

right to any one to approach the court. The Act was passed
under Art. 253 of the Indian Constitution read with entries 13
and 14 of the Union List in the Seventh Schedule to implement
the agreement signed and merely provides for certain matters
based on Geneva Conventions. What method an aggrieved
party must adopt to move the Municipal Court is not very clear.

“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

41 Balachandran, op. cit. (note 27)

42 In Alt India Reports 1970 Supreme Court 329.
4j AH India Reports 1970 Supreme Court 329.

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.

In the light of the human rights jurisprudence of the Indian judiciary,

however, the Geneva Conventions Act along with the rest of the armed forces
legislation referred to above awaits revision.45

While humanitarian law, in some shape or the other, formed part of

every civilization throughout the world, the two devastating world wars of the
20th century gave a new dimension to it by making it truly international so as to
ensure its acceptance and observation by all the countries. India was one of the

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 Indo-Pak conflict in Kashmir- Immediately after the partition, the

explosive situation in Kashmir developed into an Indo-Pak conflict where India
had shown adherence to the principles of international humanitarian law while
dealing with wounded and sick soldiers and POWs of Pakistan.

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.

The Indo-Pak conflict of 1971- In this conflict, India took custody of

approximately 75,000 Pakistani soldiers who surrendered to the Indian armed
forces. Approximately 16,000 civilians, including women and children also
sought the protection of our armed forces in Bangladesh.

Kargil conflict- Kargil conflict was in fonn of proxy war declared by

the Pakistan in kargil area of jammu and Kashmir. Dead Pakistani soldiers were

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 can be rightly proud of our traditional adherence to international

humanitarian law and of our total commitment to them. Ours is a country where
the mle of law is paramount and the dignity of a human being is supreme.
There is, however, no doubt it is of utmost importance that all of us in general
and the Indian soldier in particular should be fally aware of the humanitarian
law so that the international humanitarian law can be fally applied in the time
of any international incident in future.

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

India is signatory to the Geneva conventions and has incorporated the

same into the domestic law by enacting the Geneva Convention Act of 1960.

3.3 Hinduism and International Humanitarian Law.

In Hindu tradition the spirit of unity and universality extends to the

whole world. The Rig Veda declares that “there is one race of human beings,”
so the validity of different traditions, religions, indeed of paths to truth, has
always been respected. Our guiding principle has been “Sarva Dharma

4/ V.R. Krishna Iyer, Introduction to International Humanitarian Law, 1999, p.viii

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.

Already in ancient India, the importance and necessity of a standing

military force was understood. This recognition subsequently led to the
maintenance of a permanent militia to fight off any kind of opposition and
aggression. The armed forces were thus also retained in times of peace.
Interestingly, it was widely acknowledged that peaceful remedies should be
exhausted before having recourse to armed force. Ancient India developed a
method in four successive stages for the settlement of disputes between States:
the first stage is called peaceful negotiation (sama); the second stage consists of
offering gifts (dana) to appease the enemy; the third is a veiled threat (bheda);
18
and the last stage allows the use of force (danda). The clash of arms in battle
is therefore clearly undesirable as long as it can be avoided. The policy of
conciliation and making gifts should be tried first before engaging in war.

Types of war in ancient India

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

48 Pandurang Varman Kane, History ofDharmasastra, Poona, 1973, Vol. 3, p. 56

49 A. L. Basham, "Wonder that was India", Grove Press, New York, 1954; Percival Spear, A History of
India, Penguin, London, 1956; Romilla apar, A History of India, Penguin, London, 1966.

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.

The Great War described in the Mahabharata was the culmination of

deep enmity between two royal clans, the Pandavas and the Kauravas. The
Kauravas had unlawfully seized property belongin. The war began after all
negotiations by Krishna and others failed to avert it and it thus became
inevitable. The Pandavas were left with two choices: either to fight for their
right as a matter of duty, or to evade battle and accept defeat for the sake of
peace. Just before the hostilities began the warrior Prince Aijuna, one of the
Pandava brothers, asked Krishna to place his chariot between the two sides so
that he could take a good look at his enemy. In the enemy ranks Arjuna saw his
cousins, other relatives and his teachers. At that crucial moment, Aijuna’s
attachment to his family, kinsmen and teachers came to the fore, and doubt
entered his mind as to the '‘righteousness” of the battle. In his confusion, he no
longer knew which course of action he should take. He therefore turned to
Krishna for guidance, which showed him how to rise above the limitations of
his own personality so as to do what was best for him and good for society.
Krishna taught him spiritual wisdom and the means of attaining union with
God. The entire seven hundred verses of the Bhagavad Gita are a dialogue
between Krishna and Aijuna on the battlefield of Kurukshetra.

In Dharma Yuddha (righteous war) the warrior is morally obliged to do

his duty without thought of a possible reward (kannanyevadhikaraste, ma

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.

30 V.Nagarajan,'‘Manusmriti as Socio-political Constitution”, available at <http://www.geocities.com/

vnagarajana402/manusmrti 1 .htm
51 Ibid
” Ibid
23 C. H. Alexandrowich, “Kautilyan principles and the law ofnations’, British Yearbook of International
Law, 1965-66, Vol. 41, pp. 301-320.

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 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:

“Beloved-of-the-Gods, King Piyadasi, conquered the Kalingas

eight years after his coronation. One hundred and fifty
thousand were deported, one hundred thousand were killed and
many more died. After the Kalingas had been conquered,
Beloved-of-the-Gods came to feel a strong inclination towards
the Dhamma, a love for the Dhamma and for instruction in
Dhamma. Now Beloved-of-the-Gods feels deep remorse for
having conquered the Kalingas. Indeed, Beloved-of-the-Gods is

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

“I have had this Dhamma edict written so that my sons and

great-grand- sons may not consider making new conquests, or
that if military conquests are made, that they be done with
forbearance and light punishment, or better still, that they
consider making conquest by Dhamma only, for that bears fruit
in this world and the next. May all their intense devotion be
given to this which has a result in this world and the next. ”

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

“to seek to further the welfare of the State by enriching it

through fraud and falsehood is like storing water in an unburnt
mud pot and hoping to preserve it. ”

Thiruvalluvar emphasized the role of people whose political and

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.

3.4 Islam and International Humanitarian Law

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.

Islamic players were confined to this passive role of ‘other’, against

which the international humanitarian law movement contrasted and defined
itself, for some time. No Islamic States were present at the Conference held in
Geneva in 1863 which gave birth to the Red Cross Committee. Turkey did,
however, ratify the 1864 Geneva Convention in 1865. Persia followed in 1874,
the same year that Turkey was present at the Brussels Conference which was
extremely significant in the codification of the laws and customs of war. In
1868, Turkey took part in both the Conference revising the Geneva Convention
and the St Petersburg Conference, which famously defined the parameters of
the humanitarian law of war by declaring “that the only legitimate object which
States should endeavor to accomplish during war is to weaken the military
forces of the enemy”. In all these fora, though, Islamic participants played only
minor roles. Moreover, what contribution they made was framed not in any

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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.

Jagerschmidt’s comments indicate a belief not only that active

participation in IHL mechanisms was beyond the capacities of the Turkish
State, the sick man of Europe, but also that the new IHL approach was beyond
Turkish comprehension. In effect, the belief was that Christian charity was not
to be expected of Muslims. International humanitarian law was and, so believed
those like Jagerschmidt, should remain a Christian law. This gulf between
Christian players and Islamic others was bridged largely as a result of the
leadership of Gustave Moynier, who effectively led the Red Cross movement
after Dunant was bankrupted. Moynier acknowledged that international
humanitarian law was a Christian artifact, insisted that its universal application
was justified on the basis both of “lascience positive”and a natural law (‘7a
philosophic naturelle”) transcending the particularities of any one religion. The
importance of Moynier5 s contribution to the definition of the Red Cross
movement was twofold. First, his leadership effected a change in the normative
basis of the movement away from Christianity to a universal secularism
predicated on a combination of natural law and international positivism.
Second, Moynier worked to ensure the application of this law to and by
followers of all religions, including Islam: he was a prime mover in the
establishment of an Ottoman Red Cross Society in 1868. It was also during
Moynier5 s tenure that civil war broke out in the Balkan region of the Ottoman
Empire in 1875 between Christian insurgents and the Islamic government, the
Sublime Porte. This civil war confronted the Red Cross movement with two
key but interrelated issues: the relationship between the humanitarian principles

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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.

Moynier’s approach to the question of Red Cross involvement in internal

conflict was crucial in taking the movement beyond Dunant’s Christian
internationalism. Moynier portrayed international humanitarian law as a
universal moral code, transcending religious divisions. By acceding to the 1864
Geneva Convention, the Ottoman State had spontaneously undertaken to
observe this code, not only in its dealings with Christian States, but also in its
internal affairs. Moynier’s strategy inherently presented the Red Cross as not
simply a universal, but also a secular, organization. It was, however, the very
emblem of the Red Cross which became a semiotic cipher for this controversy.
In many ways the controversy over the emblem, still with us today, cuts to the
central question in this study: whether international humanitarian law, as an
artifact of Christian civilization, can accommodate other civilizations. The
emblem became an issue after Montenegro and Serbia, which was parties to the
1864 Geneva Convention, intervened in the civil war on the side of the
Christian minorities. Turkish troops failed at first, in violation of Turkey’s
obligations as a party to the Geneva Convention, to recognize the protection
conferred by the Red Cross emblem. Despite new Turkish laws clarifying this
protection and the penalties for its violation adopted under pressure from the
International Committee of the Red Cross (ICRC), the violations continued.
These violations were not due to the ignorance of the troops, but to their
deliberate targeting of the cross, which “gave offence to Muslim soldiers”,58

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.

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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.

After some correspondence, the utilization of the Red Crescent in place

of the Red Cross was allowed for the duration of the conflict. When Russia
entered the war to lend further support to the Slav Christian minorities, it
carefully negotiated guarantees with the Turks for the mutual recognition of the
two emblems (red cross and red crescent), though to little avail, since the
massacres of red cross wearers continued.

There are similarities between the roles Islamic representatives

played in the emergence of international humanitarian law until 1899 and in its
subsequent development. In both cases, that role appears minor at first sight; in
both cases, Islamic participation was concerned with issues central to IHL and
the form it was to take. From 1899 to 1945, the key issue was the compatibility
of IHL, predicated on humanism and sovereignty, with Islam, predicated on the
word of Allah and a universal community of faith. Two Islamic delegations
from the Ottoman Empire and Persia were present at the 1899 and 1907 Hague
Peace Conferences.59

From 1945 to 1977, Islamic representatives played important roles in

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.

s-: ;J: sfc

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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