Lecture 34: Background for enactment of Geneva Convention Act, 1960

Objectives:
The main objectives of this discussion are:
 to provide the historical foundation of the principles of IHL in the Indian Civilization
through ages and relating them to the contemporary era.
 to provide reference to many ancient Indian text that embodies a number of ethical
prospects that emerged in ancient India.
 to provide the basic ideas of IHL evolved at different ages ranging from ancient to
modern era.
 to provide the development of International Treaty Laws and relating the provisions
of Indian Constitution and the law and Geneva Convention Act, 1960 to the Geneva
Convention of 1949.

Introduction:
The Indian Parliament passed the Geneva Conventions Act, 1960 under Article 253 of
the Constitution of Indian read with entries 13 and 14 of the Union List in the 7 th schedule
based on Geneva Conventions of 1949. This Act provides the punishment for grave breaches
of the Geneva Conventions, 1949. It regulates legal proceedings with respect to protected
persons (prisoners of war and internees). Apart from that, the Act also prohibits misuse of the
Red Cross and other protected emblems under the Geneva Conventions. In spite of having
several domestic Laws, India has failed to punish the violator of the human rights in the
North East India and J & K.

Historical Background:
It is hardly possible to find documentary evidence of when and where the first legal
rules of a humanitarian nature emerged. It is, therefore, pertinent to search for and identify
the roots of the principles of IHL in all great civilization of the world. Hence this exercises
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
practices, the emphasis will be placed on the precepts, and not on aberrations in practice.
Ancient India (up to 711 AD):
In the early pre-Vedic period when Indian society was organized in tribal
communities, war between communities was ‘normal’, with no hold barred. 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;
5. Victory.
The seizure of cattle was as advance warning of an attack and gave civilians and non-
combatants time to seek shelter.
Many ancient texts such as the Ramayana, the Mahabharata, the Agni Purana and the
Manusmriti embody a number of ethical precepts that emerged in ancient India. These
precepts may be categorized according to four principal aspects of armed conflict as we
identify them today:
1. Methods of warfare;
2. Means and weapons of war;
3. Treatments of persons horse decombat ( i.e. those who, as wounded or as
prisoners, have been placed out of actions)
4. Treatment of civilians.
In ancient India, weapons like arrows, swords, hatchet and axes were used. While the
use of arrows with poisoned tips in war was perhaps permissible in the Vedic times, code of
Manu forbade the use of poison and poisoned tips in war: when the king fights with his foe in
battle, let him not strike with weapons concealed (in wood) , not with (such as one) barbed,
poisoned, or the points of which are blazing with fire. Baudhayana also prohibited the use of
barbed, or poisoned weapons in war. Remarkably, the prohibition of the use of poison on the
Code of Manu also entered into the codes of ancient Greeks and Romans as well as that of
medieval writers.
The prohibition of killing those soldiers, who had lost their horses, charioteers, or
arms, or who had surrendered, is undoubtedly a major contribution of Hindu jurisprudence to
the humanization of warfare. Apastamba notes, “the Aryans forbid the slaughter of those who
have laid down their arms, of those (who beg for mercy) with flying hair or joined hands, and
of fugitives”. To the same effect is Baudhayana’s injunction-Let him not fight with those who
are in fear, intoxication (insane out of their minds), (not with those) who have lost their
armour (not with), women, infants, aged men and Brahmins. Gautama also instructs that
‘excepting those who have lost their horses, charioteers or arms, those who join their hands
(in supplication) those who flee with flying hair, those who sit down with averted faces, those
who have climbed (in fight) on eminences or trees, messengers and those who declare
themselves to be Brahmins.
There were copious rules relating to the treatment of persons who were not directly
involved in the war or who were captured as prisoners or war. Enemy non-combatants, such
as charioteers, mahouts (elephant drivers), war musician or priest, should not be fought with a
panic - stricken foe or an enemy on the run should not be followed in hot pursuit. Guards at
the gates should not be killed.
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 and treated with
dignity. A wounded prisoner should either be sent home or should have his wounds medically
treated.
The ancient texts lay great emphasis on the protection of civilians and civilian’s
objects from the adverse impact of warfare. A peaceful citizen walking along a road, or
engaged in eating or who has hidden himself, and all civilian found near the scene of battle
should not be harmed. Fruits, flower gardens, temples and other places of pubic worship
should be left unmolested.

Medieval India (AD711-1600):

The Hindus and Muslims versions of the just war doctrine were interpreted in a
partisan way to permit, may even mandate, total elimination of the non-believer. Invaders
such as Mahmud of Ghazni, Mohammad of Ghaur, Nader Shahof Persia and Timur of
Samarkhand (Tamerlane) invaded India mainly to plunder her riches and therefore their
military campaigns were marked by senseless pillaging, looting, destruction and slaughter.
Yet their history also records dazzling instance of chivalry. From the State practice of
the Ranas of Chittor in Rajasthan, Nagendra Singh cites some examples of the release of
prisoners of war. In AD 1437, Maharana Kumbha of Chittor defeated Sultan Mahmud Khilji
and brought him captive to Chittor. Khilji remained a prisoner for six months, thereafter he
was set free with ransom. Again, in AD11526, When Ibrahim Lodhi, sultan of Delhi, was
defeated by Raja Ram Chand and made Prisoner; the Raj honoured him by seating him on the
throne.
Another well known classic example was mentioned by Nagendra Singh on the
conduct of the young Mughal emperor Humayun, soon after the historic Battle of Panipat in
1526. Sultan Ibrahim Lodhi and Vikramajit, the ruler of Gwalior, were killed in the battle.
The wives and children of the Raja of Gwalior had been left in 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 the Sultanate of
Bahmini and the Vijayanagar Empire in the south. From that time onwards, ‘it has been the
general customs in the Deccan to spare the lives of prisoners in war and not to shed blood of
enemies’ unarmed subjects. Although it is doubtful if such was ‘the general custom in the
Deccan’ following the treaty represents an illustration, albeit rare, of the moral authority of
humanitarian law amidst the clash of arms.
Colonial Era (1498-1945):
The European colonizers refused to apply to Asia and its princes what little
international law they had developed in Europe. Indeed they argued that the rules of
international law applied only in Europe.
All wars throughout human history have violated the humanitarian law precepts. But
colonialism was founded literally on the blood of Asians and Africans. Colonial history was
replete with instances of wanton killings, plundering, looting, destruction and devastation
displaying unparallel cruelty and impunity.
In its struggle for independence, India experienced several such inhuman acts of
repression including the Jallianawalla Bagh Massacre of 1919 another instance of the colonial
administration is the wanton use of force and inhuman attitude. The 1857 uprising and the
British response to it revealed extraordinary depths of inhumanity. The last Mughal Emperor,
Bahadur Shah Zafar, was taken prisoner and deported for life to Rangoon. His sons and
grandsons were killed instantly by their British captors after were taken prisoner, on an
unproved charge of murdering Englishmen.
The standard of compliance by the Indian rulers of the colonial era with humanitarian
laws was, by and large, better than that of British, although there were also some rulers who
recognized no limits to the use of force, the maltreatment of subjugated people or the
besieging and plundering of cities. A few powerful rulers were known for exemplary conduct
in their treatment of their enemies and the civilian population.
Krishnadeva Raya of Vijaynagar, in a war with king Gajpati Prataparudra of Orissa in
1514, captured the latter’s fortress of Udayagiri and took his uncle and aunt as prisoners of
war, but treated them with due honour. Chhatrapati Shivaji, the most powerful of the
Marathas in the early 17th Century, who respected women, mosques and non combatants, did
not permit the slaughter of human beings after battle and released with honour the captured
enemy officers and men.
Modern Era (since 1947):
Article 51 of the Constitution of India, 1955 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 another.” Article 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 legislatures.
India became party to the 1949 Geneva Convention for protection of war victims in
1950 but it has not yet became a party to the 1977 Additional Protocols and not yet
incorporated them into its statute book through the Geneva Convention 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
Conventionand equivalent articles of the succeeding Conventions;
 conferment of jurisdiction on our courts to try offences under these Conventions, even
when committed by foreigners outside India;
 extension of the protection given under the existing law to the emblem of the red
crossand to the other two emblems, namely, the red crescent on a white ground and
the redlion and sun on a white ground;
 procedural matters relating to legal representation, appeal, etc.

Conclusion:
The basic principles of IHL are an intrinsic apart of Indian heritage. They have at time
been dimmed but never diminished as central code of conduct to it, and are found
intermingled with the ethos of each passing historical era.
India as the largest democracy in the world is rightly expected to live up to these
principles. The Indian legal and institutional framework which primarily is based on respect
for fundamental rights is extremely conducive, sensitive and responsive to the
implementation of the principles of IHL. Indeed, the Indian Laws, such as the 1960 Geneva
Convention Act, needs to be brought at par with these general cultural and constitutional
contours of the Indian polity.

TRANSCRIPT

The Indian Parliament passed the Geneva Conventions Act, 1960 under Article 253 of
theConstitution of Indian read with entries 13 and 14 of the Union List in the 7 th schedule
based on Geneva Conventions of 1949. This Act provides the punishment for grave breaches
of the Geneva Conventions, 1949. It regulates legal proceedings with respect to protected
persons (prisoners of war and internees). Apart from that, the Act also prohibits misuse of the
Red Cross and other protected emblems under the Geneva Conventions. In spite of having
several domestic Laws, India has failed to punish the violator of the human rights in the
North East India and J & K.

Historical Background:
It is hardly possible to find documentary evidence of when and where the first legal
rules of a humanitarian nature emerged.It is, therefore, pertinent to search for and indentify
the roots of the principles of International Humanitarian Law (hereafter IHL) in all great
civilization of the world. 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, if not on aberrations in practice.

Ancient India (upto 711 AD):

In the early pre-Vedic period when Indian society was organized in tribal
communities, war between communities was ‘normal’, with no hold barred. Yet in many
parts of India, the process of war was divided into five stages:
6. Seizure of the enemy’s cattle;
7. Mobilization for invasion;
8. Bombardment of the enemy fortress
9. Actual fighting
10. Victory

The seizure of cattle was advance warning of an attack and gave civilians and non-
combatants time to seek shelter.

Many ancient texts such as the Ramayana, the Mahabharata, the Agni Purana and the
Manusmriti embody a number of ethical precepts that emerged in ancient India. These
precepts may be categorized according to four principal aspects of armed conflict as we
identify them today.
5. Methods of warfare;
6. Means and weapons of war;
7. Treatments of persons horsedecombat(ie. those who, as wounded or as
prisoners, have been placed out of action);
8. Treatment of civilians.
In ancient India, weapons like arrows, swords, hatchet and axes were used. While the
use of arrows with poisoned tips in war was perhaps permissible in the Vedic times. Code of
Manu forbade the use of poison and poisoned tips in war : when the king fights with his foe
in battle, let him not strike with weapons concealed (in wood), not with (such as one) barbed,
poisoned, or the points of which are blazing with fire. Baudhayana also prohibited the use of
barbed, or poisoned weapons in war. Remarkably, the prohibition of the use of poison on the
Code of Manu also entered into the codes of ancient Greeks and Romans as well as that of
medieval writers.

The prohibition of killing those soldiers, who had lost their horses, charioteers, or
arms, or who had surrendered, is undoubtedly a major contribution of Hindu jurisprudence to
the humanization of warfare. Apastamba notes, “the Aryans forbid the slaughter of those who
have laid down their arms, of those (who beg for mercy) with flying hair or joined hands, and
of fugitives”. To the same effect is Baudhayana’s injunction :Let him not fight with those
who are in fear, intoxication (insane out of their minds), (not with those) who have lost their
armour (not with), women, infants, aged men and Brahmins. Gautama also instructs that
‘excepting those who have lost their horses, charioteers or arms, those who join their hands
(in supplication) those who flee with flying hair, those who sit down with averted faces, those
who have climbed (in fight) on eminences or trees, messengers and those who declare
themselves to be Brahmins.

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 musician or priest, should not be fought with.
A panic –stricken foe or an enemy on the run should not be followed in hot pursuit. Guards at
the gates should not be killed.

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 and treated with
dignity. A wounded prisoner should either be sent home or should have his wounds medically
treated.
The ancient texts lay great emphasis on the protection of civilians and civilians
objects from the adverse impact of warfare. A peaceful citizen walking along a road, or
engaged in eating or who has hidden himself, and all civilian found near the scene of battle
should not be harmed. Fruits, flower gardens, temples and other places of pubic worship
should be left unmolested.

Medieval India(AD711-1600):
The Hindus and Muslims versions of the just war doctrine were interpreted in a
partisan way to permit, may even mandate, total elimination of the non-believer. Invaders
such as Mahmud of Ghazni, Mohammad of Ghaur, Nader Shahof Persia and Timur of
Samarkhand (Tamerlane) invaded India mainly to plunder her riches and therefore their
military campaigns were marked by senseless pillaging, looting,destruction and slaughter.

Yet their history also records dazzling instance of chivalry. From the Statepractice of
the Ranas of Chittor, in Rajasthan, Nagendra Singh cites some examples of the release of
prisoners of war. In AD 1437, Maharana Kumbha of Chittor defeated Sultan Mahmud Khilji
and brought him captive to Chittor. Khilji remained a prisoner for six months, thereafter he
was set free with ransom. Again, In AD 1526, When Ibrahim Lodhi, sultan of Delhi, was
defeated by Raja Ram Chand and made Prisoner; the Raja honoured him by seating him on
the throne.

Another well known classic example was mentioned by Nagendra Singh of the
conduct of the young Mughal emperor, Humayun, soon after the historic Battle of Panipat in
1526. Sultan Ibrahim Lodhi and Vikramaji, the ruler of Gwalior, were killed in the battle. The
wives and children of the Raja of Gwalior had been left in Agra Fort and the Mughal army
captured them. Hearing of this, prince Humayun intervened and 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 the Sultanate of
Bahmini and the Vijayanagar Empire in the south. From that time onwards, “it has been the
general customs in the Deccan to spare the lives of prisoners in war and not to shed blood of
enemies’ unarmed subjects. Although it is doubtful if such was “the general custom in the
Deccan” following the treaty represents an illustration, albeit rare, of the moral authority of
humanitarian law amidst the clash of arms.

Colonial Era (1498-1945):

The European colonizers refused to apply to Asia and its princes what little
international law they had developed in Europe. Indeed they argued that the rules of
international law applied only in Europe.
All wars throughout human history have violated the humanitarian law precepts. But
colonialism was founded literally on the blood of Asians and Africans. Colonial history was
replete with instances of warton killings, plundering, looting, destruction and devastation
displaying unparallel cruelty and impunity.

In its struggle for independence India experienced several such inhuman acts of
repression, including the Jallianawalla Bagh Massacre of 1919. Another instance of the
colonial administration’s wanton use of force and inhuman attitude was the 1857 uprising and
the British response to it, revealed extraordinary depths of inhumanity. The last Mughal
Emperor, Bahadur Shah Zafar, was taken prisoner and deported for life to Rangoon. His sons
and grandsons were killed instantly by their British captors after they were taken prisoners,
on an unproved charge of murdering Englishmen.

The standard of compliance by the Indian rulers of the colonial era with humanitarian
laws was, by and large, better than that of British, although there were also some rulers who
recognized no limits to the use of force, the maltreatment of subjugated people or the
besieging and plundering of cities. A few powerful rulers were known for exemplary conduct
in their treatment of their enemies and the civilian population.

Krishnadeva Raya of Vijaynagar, in a war with king Gajpati Prataparudra of Orissa in

1514, captured the latter’s fortress of Udayagiri and took his uncle and aunt as prisoners of
war, but treated them with due honour. Chhatrapati Shivaji, the most powerful of the
Marathas in the early 17th Century, who respected women, mosques and non combatants, did
not permit the slaughter of human beings after battle and released with honour the captured
enemy officers and men.
Modern Era(since 1947):
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 another”. Article 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 legislatures.
India became party to the 1949 Geneva Conventions for protection of war victims in
1950 but it has not become party to the 1977 Additional Protocols and not yet 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
Conventions
and equivalent articles of the succeeding Conventions;
 conferment of jurisdiction on our courts to try offences under these Conventions, even
when committed by foreigners outside India;
 extension of the protection given under the existing law to the emblem of the Red
Crossand to the other two emblems, namely, the Red Crescent on a white ground and
the RedLion and Sun on a white ground;
 procedural matters relating to legal representation, appeal, etc.

Conclusion:
 The basic principles of IHL are an intrinsic apart of Indian heritage. They have at time
been dimmed but never diminished as central code of conduct to it, and are found
intermingled with the ethos of each passing historical era.
India as the largest democracy in the world is rightly expected to live up to these
principles. The Indian legal and institutional framework which primarily is based on respect
for fundamental rights, is extremely conducive, sensitive and responsive to the
implementation of the principles of IHL. Indeed, the Indian Laws, such as the 1960 Geneva
Conventions Act, needs to be brought at par with these general cultural and constitutional
contours of the Indian polity.

GLOSSARY:
Convention:it means the Conventions set out in the I st, IInd,IIIrdand IVth schedules of
the Convention.
Court: it does not include a court martial or military court.
Protected internee: a person protected by the IVth Convention &interned in India.

Protecting power: in relation to a protected internee or a protected prisoners of

war, it means the power organisation which is carrying out, in the interests of the
power of which he is a national or of whose forces he is or was at any material time a
member, the duties assigned to protecting powers under the III rdConvention or as the
case may be, the IVth Convention.
Protected prisoners of war:a person protected by the IIIrd Convention.
Grave Breaches:where the offence involves the wilful killing of person protected by
any of the Conventions.
ICRC:International Committee of Red Cross.
Protected Emblem: There are four such emblems, three of which are in use: the
Red Cross, the Red Crescent, and the Red Crystal. The Red Lion and Sun is also a
recognized emblem, but is no longer in use.
Seizure of the enemy’s cattle: was an advance warning of an attack, and gave
civilians and combatants time to seek shelter.
High contracting parties:The representatives of states who have signed or ratified a
treaty.
FAQs:
1. What was the purpose of enacting Geneva Convention Act, 1960?
Ans: - To implement certain provisions of the Geneva Convention Act, 1949.

2. How many emblems are there?

Ans: - There are four such emblems - The Red Cross, The Red Crescent, The Red
Crystal, and The Red Lion and Sun.

3. Whether Red Lion and Sun is a recognised emblem and still in use?
Ans: - The Red Lion and Sun is a recognized emblem, but is no longer in use.

4. Who are High contracting parties?

Ans: - The representatives of states who have signed or ratified a treaty are High
contracting parties.
 5. The seizure of cattle was used as advanced warning of attack in ancient India. Why?
Ans:- It gave civilians and non-combatants time to seek shelter.

6. What are the major sources from where a number of ethical percept is found in
ancient India?
Ans:- Ancient text such the Ramayana, the Mahabharata, the Agni Purana, and the
Manu smirti embody a number of ethical percept that emerged in ancient India.

7. What is the major contribution of Hindu jurisprudence to the humanization of

warfare?
Ans:- The prohibition of killing those soldiers, who had lost their horses, charioteers,
or arms, or who had surrendered is major contribution of Hindu jurisprudence.

8. What are the four principal aspects of armed conflict as we identify today?
Ans:- Methods of warfare, means and weapons of war, treatments of persons horse
de-combat, treatment of civilians.

9. In how many stages the process of war was divided in early Pre-Vedic period?
Ans:- It was divided in five stages.

10. Who was the Maratha ruler in the early 17th century who did not permit the slaughter
of human beings after battle and release with honour the captured enemy officers and
man?
Ans:- Chhatrapati Shivaji, the most powerful of the Marathas ruler.

References:
1. Balachandran, M.K and Varghese, Rose: “Introduction to International
Humanitarian Law”, International Committee of the Red Cross Regional Delegation,
New Delhi.
2. Basic rules of The Geneva Conventions and their additional protocols, International
Committee of the Red Cross, Geneva, September 1983.
3. Brownlie, Ian & S.Goodwin-Gill, Guy, (6 th edition): Brownlie’s Documentation on
Human Rights, Oxford University Press.
4. Das, P.K., 2003: Universal’s International Law Documents, Universal Law
Publishing Co. Pvt. Ltd.
5. Humanitarian Debate: Law, policy, action Torture, Volume 89 Number 867
September 2007, International Review of the Red Cross, The International Committee
of the Red Cross (ICRC).
6. Mani, V.S., 2009 : Handbook of International Humanitarian Law. Oxford University
Press.
7. M. M. Wallace, Rebecca, 1992: International Law, Universal Book Traders.
8. Nicod, Vincent; Maybee, Larry & Chakka, Benarji, 2007:International Humanitarian
Law- A reader for South Asia,the International Commitee of the Red Cross, Regional
Delegation, New Delhi.
9. N. Shaw, Malcolm, (5th edition): International Law, the Press Syndicate of the
University of Cambridge.
 10. Pilarski, Kim, 1990:Student’s Library International Law,Progress Publishers,
Moscow.
11. South Asia Human Rights Documentation Centre, 2008:Human Rights and
Humanitarian Law,Developments in India and International Law, Oxford University
Press.
Links:
www.icrc.org
www.ifrc.org
www.theirc.org