UNIT 1.

INTRODUCTION TO INTERNATIONAL HUMANITARIAN LAW

a) Definition of International Humanitarian Law
Laws relating to refugees in India a) National framework for refugee protection in India b)
Role played by the National Human Rights Commission, SAARC and other institutions.
International humanitarian law is a part of international law, which is the set of rules that
governs state-to-state relations. International law is embodied in treaties or conventions
between states, in customary laws, which consist of State practices deemed legally binding by
them, and in general principles.
For humanitarian reasons, these rules protect persons and property that are, or may be,
affected by conflict by limiting conflicting parties’ rights to choose their methods and means
of warfare. The expression “international humanitarian law applicable in armed conflict” is
often abbreviated to International Humanitarian Law or Humanitarian Law.1 Though the
military tends to prefer the expressions “Laws of Armed Conflicts” (LOAC) or “Laws of
War”, these two expressions should be understood as synonymous with “IHL”.

IHL protects those that have not, or are no longer, taking a direct part in hostilities:
 civilians
 wounded who give up fighting
 prisoners or detainees

b) Jus In Bello and Jus Ad Bellum

 Meaning Jus ad bellum are the
international rules
pertaining to which extent
the use of military force
against another state is
allowed
Aquinas’s Distinction Justice in the move to war,
the conditions under which it
is morally right to take up
arms.
Just War Theory Right to engage in war
 When
 Where
 For what reason
 To what end
Jus in bello are the
international rules pertaining
to how armed conflict must
be conducted
 Protection of civilians
and individuals hors
de combat
 Protection of
combatants
 Means and methods of
warfare
 Relationship to
neutral states
 Not a key issue in this
course
Justice in war, rules of conduct
once fighting is underway
( Conducted Justly).
Right to conduct war
 How
 Who
 With what means

c) Synergy and dissonance between International Humanitarian Law and International

Human Rights Law
Differences:
1. Scope of Application: IHL applies only during armed conflict or situations of
violence, whereas HRL applies at all times, including during times of peace. IHL is
designed to provide protection for victims of armed conflict, while HRL seeks to
safeguard the rights of individuals in all circumstances.
2. Nature of Obligations: IHL imposes obligations on states and non-state actors
engaged in armed conflict to comply with the laws of war, while HRL places
obligations on states to respect, protect, and fulfil human rights. IHL imposes certain
restrictions on the conduct of hostilities, while HRL primarily seeks to promote and
protect the enjoyment of human rights.
3. Context of Enforcement: IHL is enforced primarily through international criminal
tribunals, such as the International Criminal Court, whereas HRL is enforced through
domestic and international mechanisms, such as national courts, human rights
commissions, and international treaty bodies.
 4. Focus of Protections: IHL focuses primarily on protecting victims of armed conflict,
such as civilians, prisoners of war, and other non-combatants, while HRL seeks to
protect a broad range of human rights, including civil and political rights, economic,
social, and cultural rights, and the rights of marginalized groups.
5. Flexibility of Norms: IHL has a degree of flexibility in its application, allowing for
certain derogations in times of military necessity, whereas HRL is generally
considered to be non-derogable and subject to stricter scrutiny. In addition, IHL is
more heavily influenced by customary law, while HRL is based largely on treaty law.
Similarities:
1. Protection of Human Dignity: Both IHL and HRL are based on the principle of
protecting human dignity. IHL seeks to safeguard the rights of individuals affected by
armed conflict, while HRL aims to protect the rights of individuals in all
circumstances, including during times of peace.
2. Universal Application: Both IHL and HRL apply to everyone, regardless of their
nationality, ethnicity, religion, or other status. They are both considered to be
universal bodies of law that protect human beings from harm.
3. Compliance with International Law: Both IHL and HRL are grounded in international
law, and states are expected to comply with them in good faith. They are also subject
to monitoring and enforcement by international bodies, such as the International Court
of Justice, the International Criminal Court, and the UN Human Rights Council.
4. Protection of Fundamental Rights: Both IHL and HRL aim to protect fundamental
human rights, such as the right to life, the prohibition of torture, and the protection of
civilians. They both seek to prevent and respond to violations of these rights.
5. Overlapping Norms: Some of the norms in IHL and HRL overlap, such as the
prohibition on torture and the right to a fair trial. This means that in some cases, a
violation of IHL may also constitute a violation of HRL, and vice versa.
d) Fundamental Principles of International Humanitarian Law.
1. Limitation- The means and methods of warfare are not unlimited. The right of
Parties to a conflict to choose methods and means of warfare is not unlimited and this
rule dates back to the St Petersburg Declaration 1868.156 The rule is codified in
modern IHL treaties under Article 35 of AP I. The limitations to use of means or
method includes, • Employing weapons, projectiles and material and methods of
warfare of a nature to cause superfluous injury or unnecessary suffering157 • Use of a
method or means of combat which cannot be directed at a specific military objective
or the effects of which cannot be limited as required by IHL, in particular the
principle of distinction between civilians and combatants158 • Methods or means of
warfare which are intended, or may be expected to cause widespread, long-term and
severe damage to the natural environment or to objects indispensable to the survival
of the civilian population.
2. Distinction- Combatants must at all times distinguish between combatants and
civilians, and between military objectives and civilian objects. The rule of distinction
requires that parties to a conflict shall at all times distinguish between: • The civilian
population and combatants • Military objectives and civilian objects • Attacks shall be
directed solely against combatants and military objectives.
3. Proportionality- The principle of proportionality states that even if there is a clear
military target, it may be attacked only if the risk of civilians or civilian property
being harmed, or of civilians being killed, is not excessive in relation to the expected
military advantage. The rule of proportionality requires that collateral damage shall be
 proportionate to the concrete and direct military advantage anticipated. Launching an
attack which may be expected to cause incidental loss of civilian life, injury to
civilians, damage to civilian.
4. Unnecessary suffering-Don't inflict unnecessary suffering
5. Military necessity- Military necessity, as understood by modern civilised nations,
consists in the necessity of those measures which are needful for securing the end of
the war, which are lawful according to the modern law.
Justifies the proportional use of military force against an enemy, to force him to submit
Does not justify inhumane conduct
Not an excuse for acts forbidden by IHL

e) Sources of International Humanitarian Law

1. Treaties
The most important treaties regulating the actions of participants in armed conflicts are:
• The Hague Conventions of 1899 & 1907 and in particular the Regulations attached to
Hague Convention IV 1907 on Laws and Customs of War on Land;
• The four Geneva Conventions of 1949; Wounded and sick soldiers on land, Wounded and
sick soldiers on sea, Prisoners of war and Protection of civilians and occupation
• Additional Protocols I, II (1977) and III (2005) to the 1949 Geneva Conventions.
2. International customary law
This is a body of rules dealing with armed conflict which is derived from state practice is
otherwise known as the customs of war has its origin in the customary practices of the armies
as they developed over the ages and on all continents. As the treaties did not codify all
aspects of custom, the importance of customary international law is reaffirmed in the
“Martens Clause” and later in the Additional Protocol I to the Geneva Conventions.
Martens Clause: This was introduced in the preamble of Hague Convention of 1899 to
resolve the differences of opinion between powerful states and weak states. It stipulates that
in cases not covered under International Humanitarian Law, conduct of belligerents will be
governed by principles of international law resulting from usage of such principles by
civilized nations, from the law of humanity and dictates of public conscience. Interpretation
of the clause has always been in question. It has acquired a customary character in
international law but humanitarian lawyers also argue that it imposes separate set of
obligations on a state and should not be merely construed as a custom. 3 Interpretations of
Martens Clause:
 Narrow interpretation shall bind signatories of a treaty and martens’ clause shall
serve the purpose of an international customary law.
 Broad interpretation shall advocate for the clause to be a separate source of law
on its own which is capable of being utilized independently as a basis of an
argument.
 Moderate interpretation shall treat the clause as a means to understand and
interpret treaty provisions.
Case Law: United States vs. Alfred Krupp
United States Military tribunal at Nuremberg stated that German forces had exploited the
territory occupied by it in a ruthless manner far beyond he needs of military occupation
showing utter disregard to articles 46 to 56 of the Hague Convention on belligerent
occupation which was not only binding on them as a treaty law but also as a matter of
customary international law (hinting at martens clause), stating that preamble of Hague
Convention is a pious document which talks about principles followed by civilized nations as
a result of usage enshrined in international law, law of humanity and dictate of public
conscience
Challenges to Martens Clause : The only problem and challenge which is faced by
humanitarian advocates is that of its interpretation. Martens Clause is dynamic in nature and
aims to protect persons with respect to abnormalities of warfare. The dominant nature of
International Law is positivist. Powerful nations with strong militia can refuse to ratify a
treaty and can always object to a custom that does not favour them. This can lead to
oppression of small states at the time of war or armed conflict. This is where marten’s clause
steps in and serves as a link between natural law theory and positivist law theory of
international law.
State practice may consist of physical and verbal acts of the State. Abstention from certain
conduct is also noted when relevant. However, the practice should consist of official practice.
The practice of the executive, legislative and judicial branches of the government may
contribute to the formation of the customary international law.
Further to establish a rule of customary international law, the state practices have to be
virtually uniform, extensive and representative. However, no specific period is required to
satisfy this criterion. Opinion juris sive necessitates is the second requirement for proving the
existence of a rule of customary international law. This relates to the need for the practice to
be carried out as a legal requirement. In the words of International Court of Justice (ICJ),
opinion juris means “a belief that this practice is rendered obligatory by the existence of a
rule of law requiring it”. Here it means that the requirement is a legal requirement, rather than
one reflecting courtesy or mere comity.
3. Judicial Decisions
• Military and Paramilitary Activities in and against Nicaragua by ICJ.
• Tadic decision by ICTY appeals chamber.
• In 2006, the US Supreme Court decided on the legality, under IHL, of the Military
Commissions established to prosecute persons detained in Guantanamo Bay.
4. Case Study
Example: On December 2017, Unaporri a Country in Mediterranean region attacked and
captured Sync Valley belonging to its neighboring peaceful country Zymigy. Unaporri
claimed that historically Sync Valley belongs to them. There was no bloodshed or killings
during the capture as Zymigy’s armed forces didn’t resist the aggression. Subsequently, a
dispute arouses at international level on the legality of Unaporri’s action of capturing Sync
Valley from Zymigy.
f) History:  Ancient Indian and Oriental Philosophies on the Law of War  Eastern
and Western Philosophies on the Law of War  History of International Legal
Instruments on the Laws of War
First Geneva Convention was developed at the instance of a businessman Henry Dunant, who
witnessed the carnage in the battle of Solferino, Italy in 1859. He published the book, Un
Souvenir de Solferino (A Memory of Solferino) in 1862 on the human sufferings he had
witnessed in the battle. Subsequently, Henry Dunant and four others created a committee for
helping victims of armed conflicts, which later became the Red Cross movement.
Simultaneously, the United States of America at the height of the American Civil War
promulgated a code of conduct for the soldiers fighting on the Union side of the Civil War. It
was named after its main author, Francis Lieber, a Columbia Law School professor. The
Lieber Code consisted of just 157 provisions, subdivided into ten sections. It codified the then
existing rules and custom of war, and it addressed a wide range of topics.
1. India
 In India, the writers enunciated the validity of law on extra-legal sanctions. Rules of
conduct embodied in the Dharma had to be implicitly obeyed. There was common
subjection to the unifying force of Dharma due to the fear that violation of rules
would entail wrath of God.
 One thing became certain beyond doubt, that from the time of the Rigveda onwards,
Dharma meant both “law” and “custom”.
 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.
 The Manu smriti, Manu’s code of law, also repeats the same sentiments. A king
should first try to conquer his foes by conciliation, by gift and by causing dissension if
possible: if all these fails then and then only should he wage war.
 The policy of conciliation and making gifts should be tried first before engaging in
war. The Arthashastras, one of the greatest political works of ancient India by
Kautilya, were great advocates of the policy of state interest and yet they looked upon
the establishment and continuation of peace as the only means of achieving national
peace and national prosperity.
 Kautilya defined war as an “offensive operation”. War was defined by Sukracharya
as the affair of two parties having inimical relations with each other, undertaken by
means of arms, with the ulterior objective of satisfying their rival interests.
 The laws governing war in ancient India can be summarised in these two
principles:
I. Armed opponents must first always be warned-: There must be a declaration
of war to the other kingdom through an ambassador. A warning of attack
during the war in cases of dropping of weapons
II. Unarmed must never be harmed-: International usage in ancient India made a
distinction between combatants and non- combatants and recognized the
modern principles of various grades in enemy character.

2. Western Philosophies: Just War Theory

 Thomas Aquinas (1225-1274) to Hugo Grotius (1583-1645) developed a
substantial doctrine of ‘Just War Theory’ – a theory of when waging war was just,
and when it was unjust (‘jus ad bellum’), as well as what sort of behavior was just
within war (‘jus in bello’) and . ‘Jus post bellum talks’ about the proper way to
go about ending a war, for example, in drawing up peace treaties.
 Just Cause : This is clearly the most important rule; it sets the tone for everything
which follows. A state may launch a war only for the right reason. The just causes
 most frequently mentioned include: self-defense from external attack; the Defence
of others from such; the protection of innocents from brutal, aggressive regimes;
and punishment for a grievous wrongdoing which remains uncorrected.
 Leviathan: In 1651, the English philosopher Thomas Hobbes published Leviathan.
For a time, this cemented how war, and morality as a whole, was conceived. The
basic premise of Leviathan is that, as a matter of survival and for the sake of
cohesion, the members of a society give up certain liberties to a sovereign, who
becomes responsible for applying laws and protecting private property.
 During the time of the Thirty Years’ War, for instance, there was much political
self-interest in the waging of wars, despite the superficial religious justification.
Nevertheless, Hobbes made the ‘self-interest’ aspect more explicit, and presented
an alternative view to Grotius’s vision of a naturally formed ‘international
society’. It’s hardly surprising then that while Grotius is considered the father of
international law, Hobbes is considered the father of the ‘realist’ school of thought
in international relations.
3. Eastern Philosophies : Just War Theory
 The Indian Hindu epic, the Mahabharata, offers the first written discussions of a
"just war" (dharma-yuddha or "righteous war"). In it, one of five ruling brothers
(Pandavas) asks if the suffering caused by war can ever be justified.
 A long discussion then ensues between the siblings, establishing criteria
like proportionality (chariots cannot attack cavalry, only other chariots; no
attacking people in distress), just means (no poisoned or barbed arrows), just
cause (no attacking out of rage), and fair treatment of captives and the wounded.
The philosophy of just war theorizes what aspects of war are justifiable according
to morally acceptable principles
 The Art of War is one of the most studied and cited strategy books in both the
east and the west. While historically less well-known, The Book of Five Rings
has become an increasingly influential text in both the military and strategy
spheres.
 While Sun Tzu focuses on the army as the unit of analysis, The Book of Five
Rings focuses on the individual and the development of his or her skills in battle.
The Art of War emphasizes information, knowledge, and deception as key
ingredients for a winning strategy. It also instructs the strategist to avoid direct
conflict—in perhaps Sun Tzu’s most well-known contribution to the strategic
canon, The Art of War famously argues that the best way to win a battle is by
avoiding physical engagement entirely.
 Like The Art of War, Musashi’s The Book of Five Rings is a tactical manual for
victory in combat. Written in mid-seventeenth-century Japan, The Book of Five
Rings is, however, distinct from its better-known predecessor not only in
historical context and geographical origin but also in the lessons modern
strategists can draw from its pages. A famed Samurai, Musashi wrote The Book
of Five Rings after a victorious career winning some 60 duels and founding an
influential school of Samurai swordsmanship. Completed shortly before his
death, The Book of Five Rings serves as an anthology of the methods and
philosophies Musashi used in teaching his students how to master individual
combat.
 UNIT 2. SCOPE AND APPLICATION OF INTERNATIONAL HUMANITARIAN
LAW
a) What is an armed conflict?

The Geneva Conventions (GC) and Additional Protocols (AP) I and II do not define
armed conflicts. However, the Common Article 2 and Common Article 3 to the
Geneva Conventions of 1949 mention international armed conflicts and non-
international armed conflicts respectively.
The widely accepted definition of armed conflict was given in Prosecutor v. Tadic by
International Criminal Tribunal for Yugoslavia (ICTY) Appeals Chamber. It provides
that an armed conflict exists whenever there is a resort to armed force between states
or protracted armed violence between governmental authorities and organized armed
groups or between such groups within a state.
The classification of conflicts is a reality in IHL application and is important because
the application of IHL provisions varies in different conflict situations. For example,
during an international armed conflict, Geneva Conventions I-IV and Additional
Protocol I apply to all parties to the conflict. Customary rules applicable in
international armed conflicts are also applicable. However, during a non-international,
or internal, armed conflict, only the fundamental guarantees of Article 3 common to
the Four Geneva Conventions of 1949 and customary IHL are applicable. The
provisions of Additional Protocol II also apply in such situations if the party
concerned is a party to the Convention.

b) International Armed Conflict and Non-International Armed Conflict.

International Armed Conflict Non-International Armed Conflict
According to Common Article 2 to the A non-international (or "internal") armed
Geneva Conventions of 1949, an IAC occurs conflict refers to a situation of violence
when there is a declared war or any other involving protracted armed confrontations
armed conflict between two states even when between government forces and one or more
the state of war is not recognized by any one organized armed groups, or between such
of them. This is regardless of the reasons or groups themselves, arising on the territory of a
the intensity of the confrontation. Relevant State.
rules of IHL may apply even in the absence of
open hostilities. Moreover, no formal In contrast to an international armed conflict,
declaration of war or recognition of the which opposes the armed forces of States, in
situation is required. Also, the existence of a non-international armed conflict at least one
international armed conflict is assumed in of the two opposing sides is a non-State armed
situations of partial or total occupation of the group.
territory of a state party, even if the Two main legal sources have to be examined to
occupation meets no armed resistance. determine existence of NIAC under the
Common Article 2 to the Geneva Conventions international humanitarian law. They are: (a)
of 1949 states that: "In addition to the Common Article 3 to the Geneva Conventions
provisions which shall be implemented in of 1949; (b) Article 1 of Additional Protocol II.
 peacetime, the present Convention shall apply
to all cases of declared war or of any other
armed conflict which may arise between two
or more of the High Contracting Parties, even
if the state of war is not recognized by one of
them. The Convention shall also apply to all
cases of partial or total occupation of the
territory of a High Contracting Party, even if
the said occupation meets with no armed
resistance". According to this provision, IACs
are those which oppose "High Contracting
Parties", meaning States. An IAC occurs
when one or more States have recourse to
armed force against another State, regardless
of the reasons or the intensity of this
confrontation. Relevant rules of IHL may be
applicable even in the absence of open
hostilities. Moreover, no formal declaration of
war or recognition of the situation is required.
The existence of an IAC, and as a
consequence, the possibility to apply
International Humanitarian Law to this
situation, depends on what actually happens
on the ground.
A NIAC situation requires the following
essential elements to qualify under IHL:
• Armed confrontation is taking place within
the territory of the state
• Armed violence between government v.
armed insurgent groups and/or between
themselves
• It is clear that in all NIAC, at least one party
must be considered a non-state group
• Reasons for the conflict must be for taking
over the reigns of power, or to obtain greater
autonomy within the state, or to secede and
create a separate state
• Caused or ignited by various reasons, like
oppression and other human rights violations,
crumbling of the governmental system or
revolting against dictatorial rule

c) Common Article 3 Geneva Convention.

Common Article 3 applies to "armed conflicts not of an international character occurring in
the territory of one of the High Contracting Parties". Unfortunately, Article 3 Common to all
four 1949 Geneva Conventions does not specify precisely when it will apply, referring only
to an ‘armed conflict, not of an international character occurring in the territory of one of the
High Contracting Parties’. Whether or not such a conflict is taking place is determined by
criteria which have been fleshed out by customary international law.
 It is the duty of the State that the wounded, sick and shipwrecked be collected and
cared for.
 It also grants International Committee of the Red Cross (ICRC) the right to offer its
free services to the parties in the conflict region.
 It also calls parties to the conflict to bring all or parts of the Geneva Conventions into
force through special agreements.
 Norms of this Article becomes applicable both to the armed forces of a states and non-
State actors, namely organized armed groups that did not belong or belongs to a State
were involved in an armed conflict with the State’s armed forces.
  A role for the International Committee of the Red Cross (ICRC) plays a very
important role in non-international armed conflicts.
 Given that most armed conflicts today are non-international, application of this Article
is of the utmost importance. Its full respect is required.
Common Article 3 provides that persons not actively taking part in hostilities including
civilians and Hors de combat shall be treated humanely and without any adverse distinction
of race, creed, religion, faith, colour, sex, birth or wealth. Following acts are prohibited in all
circumstances
• violence to life and person
• murder of all kinds
• mutilations
• cruel treatment and torture
• outrages on personal dignity, in particular, humiliating and degrading treatments Additional
Protocol II develops and supplements the Common Article 3 and shall apply to all conflicts
which are not covered by AP I.
To qualify for the application of Additional Protocol II, the non-state parties to the conflict
shall have the following:
• A responsible command
• Exercises control over parts of its territory which enables them to carry out sustained and
concerted military operations and to implement this protocol
• It shall not apply to situations of internal disturbances and tensions, such as riots, isolated
and sporadic acts of violence and other acts of a similar nature, as not being armed conflict
• It shall be applied without any distinction what so ever
The definition in AP is narrower than the notion of NIAC under common Article 3 in two
aspects. First, it introduces a requirement of territorial control, by providing that non-
governmental parties must exercise such territorial control "as to enable them to carry out
sustained and concerted military operations and to implement this Protocol". Secondly, AP II
expressly applies only to armed conflicts between State armed forces and dissident armed
forces or other organized armed groups.
 UNIT 3. TREATMENT OF VICTIMS AND PRISONERS OF WAR

a) Introduction
The Red Cross and the Geneva Conventions were born when Henry Dunant witnessed the
devastating consequences of war at a battlefield in Italy. In the aftermath of that battle,
Dunant argued successfully for the creation of a civilian relief corps to respond to human
suffering during conflict, and for rules to set limits on how war is waged. Inspired in part by
her work in the Civil War, Clara Barton would later found the American Red Cross and also
advocate for the U.S. ratification of the first Geneva Convention.
Hors de combat: Hors de combat is a French term used in international law, literally meaning
"outside the fight," to refer to military personnel who are incapable of performing their
military function. Examples include fighter pilots and aircrew members parachuting from an
aircraft in distress, as well as the sick, wounded, detained, shipwrecked or otherwise disabled.
Military personnel who is a hors de combat is normally granted special protections according
to the laws of war, including prisoner of war status.
b) The general obligation of humane treatment : Geneva Convention
1) Protection of wounded and sick in armed forces on the field (GC -I)
2) Protection of wounded, sick and shipwrecked members of armed forces at sea (GC-
II)
For the purpose of common Article 3, a “shipwrecked” person is someone who, as a result of
hostilities or their direct effects, is in peril at sea or in other waters and requires rescue. A
person would also qualify as shipwrecked where, for example, hostilities adversely affected
the ability of those who would normally rescue them to do so in fact.
3) Protection of prisoners of war (GC-III)
Article 4 of the Third Geneva Convention does describe categories under which a person may
be entitled to prisoner of war status. Prisoners of War are usually members of the armed
forces of one of the parties to a conflict, who are hors de combat and fall into the hands of the
adverse party. The Geneva Convention (GC) III and Additional Protocol (AP) I also classify
other categories of persons who have the right to Prisoner of War status or may be treated as
Prisoners of war.
Hors de combat is a French term used in international law, literally meaning "outside the
fight," to refer to military personnel who are incapable of performing their military function.
Examples include fighter pilots and aircrew members parachuting.
As per the Article 4 (A) of GC III PW is a person belonging to one of the following
categories, who have fallen into the power of the enemy: • Members of the armed forces of a
Party to the conflict, as well as members of militias or volunteer corps forming part of such
armed forces • Members of other militias and members of other volunteer corps, include
 those of organized resistance movements, belonging to a Party to the conflict and operating in
or outside their own territory, even if this territory is occupied, provided that such militias or
volunteer corps • Members of regular armed forces who profess allegiance to a government
or an authority not recognized by the Detaining Power • Persons who accompany the armed
forces without actually being members thereof, such as civilian members of military aircraft
crews, war correspondents, supply contractors, etc., if hold an identity card issued by the state
party to which they belong • Members of crews, including masters, pilots and apprentices, of
the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not
benefit by more favourable treatment under any other provisions of international law • And
Levee en masse i.e. inhabitants of a non-occupied territory, who on the approach of the
enemy spontaneously take up arms to resist the invading forces, without having had time to
form themselves into regular armed units, provided they carry arms openly and respect the
laws and customs of war.

4) Protection of civilian persons in times of war (GC-IV)

Generally, civilians are defined as persons who are not members of the armed forces under
IHL. Under Article 4 of the Geneva Convention (GC) IV, protected persons are those who at
a given moment find themselves, in case of a conflict or occupation, in the hands of persons
or a Party to the conflict or Occupying Power of which they are not nationals.
Specially protected civilians: • Journalists.However, journalists are to be distinguished from
war correspondents who are also civilians, but because they accompany the armed forces of a
State without being members thereof are considered as combatants entitled to the prisoner of
war status upon capture;78 • Humanitarian relief personnel;79 • Internally displaced
persons;80 • Aliens and refugees;81 • Personnel involved in a peace-keeping mission; 82 and
• Most vulnerable persons, such as children, expectant women, mothers of young children,
and elders are granted particular protection and care.8

The First Geneva The Second Geneva The Third Geneva Convention, The Fourth Geneva
Convention, 1949 Convention, 1949 1949 Convention
The Geneva The Geneva The Geneva Convention The Geneva Convention
Convention for Convention for the Relative to the Treatment of Relative to the Protection
the Amelioration Amelioration of the Prisoners of War of August 12, of Civilian Persons in
of the Condition Condition of 1949 Time of War of August
of the Wounded Wounded, Sick and 12, 1949 Civilians in areas
and Sick in Shipwrecked The Convention’s 143 articles of armed conflict and
Armed Forces. Members of Armed require that POWs be treated occupied territories are
Forces at Sea of humanely, adequately housed protected by the 159
It protects: August 12, 1949 and receive sufficient food, articles of the Fourth
clothing and medical care. Its Geneva Convention
• Wounded and It Protects: provisions also establish
sick soldiers • guidelines on labor, discipline, Specific Provisions:
Medical •Armed forces recreation and criminal trial.
personnel, members who are Note that prisoners of war may Arts. 13, 32 Civilians are
facilities and wounded, sick or include the following: • to be protected from
equipment • shipwrecked •Hospital Members of the armed forces • murder, torture or
Wounded and sick ships and medical Volunteer militia, including brutality, and from
civilian support personnel • Civilians
personnel who accompany the resistance movements • Civilians discrimination
accompanying the armed forces. accompanying the armed forces.
armed forces • Art. 14 Hospital and safety
Military chaplains Specific Provisions: Specific Provisions zones may be established
• Civilians who for the wounded, sick, and
Arts. 12, 18 Search Arts. 13-14, 16 POW must not aged, children under 15,
spontaneously for, collect and care be subjected to torture or
take up arms to expectant mothers and
for the wounded, sick medical experimentation and mothers of children under
repel an invasion and shipwrecked. must be protected against acts of seven.
Specific “Shipwrecked” refers violence, insults and public
Provisions to anyone who is curiosity. Art. 18 Civilian hospitals
adrift for any reason, and their staff are to be
Art. 9: Authorized including those forced Art. 17 POWs are required to protected.
impartial relief by to land at sea or to provide to their captors only
Red Cross and parachute from their name, rank, date of birth Arts. 24, 25 This
Red Crescent damaged aircraft. and military service number. Convention provides for
national societies. the care of children who
Art. 21 Appeals can be Art. 23 Female POWs must be are orphaned or separated
Art 12: Wounded made to neutral treated with the regard due their from their families.
shall be respected vessels, including sex.
and protected merchant ships and Art. 27 The safety, honor,
Arts. 25-27, 30 Captors must not family rights, religious
without yachts engage in any reprisals or
discrimination. practices, manners and
Art. 22 Hospital ships discriminate on the basis of race, customs of civilians are to
Art. 15 The cannot be used for any nationality, religious beliefs, be respected. Arts. 33-34
wounded and sick military purpose. They political opinions or other Pillage, reprisals,
shall receive cannot be attacked or criteria indiscriminate destruction
adequate care. captured. Arts. 50, 54 POWs must be of property and the taking
of hostages are prohibited.
Arts. 36-37 Religious, housed in clean, adequate
medical and hospital shelter, and receive the food, Arts. 33, 49 They are not
personnel serving on clothing and medical care to be subjected to
combat ships must be necessary to maintain good collective punishment or
respected and health. deportation.
protected. Arts. 70-72, 123 Names of Art. 40 Civilians cannot
prisoners of war must be sent be forced to do military-
immediately to the Central related work for an
Tracing Agency of the ICRC. occupying force.
Arts. 82, 84 Prisoners are subject Art. 54 They are to be paid
to the laws of their captors and fairly for any assigned
can be tried by their captors’ work.
courts. The captor shall ensure
fairness, impartiality and a Art. 55 Occupying powers
competent advocate for the are to provide food and
prisoner. medical supplies as
necessary to the population
Arts. 109, 110 Seriously ill and maintain medical and
POWs must be repatriated public health facilities.
(returned home).
Arts. 55, 58 Medical
Art. 118 When the conflict ends, supplies and objects used
all POWs shall be released and, for religious worship are to
 if they request, be sent home
without delay.
Art. 125 The ICRC is granted
special rights to carry out
humanitarian activities on behalf
of prisoners of war. The ICRC or
other impartial humanitarian
relief organizations authorized
by parties to the conflict must be
permitted to visit with prisoners
privately, examine conditions of
confinement to ensure the
Conventions’ standards are
being met and distribute relief
supplies.
be allowed passage.
Arts. 89-91 Internees are
to receive adequate food,
clothing and medical care,
and protected from the
dangers of war. Art. 106
Information about
internees is to be sent to
the Central Tracing
Agency. Arts. 108, 107
Internees have the right to
send and receive mail and
receive relief shipments.
Art. 132 Children,
pregnant women, mothers
with infants and young
children, the wounded and
sick and those who have
been interned for a long
time are to be released as
soon as possible.

Common Article 3
All four Geneva Conventions contain an identical Article 3, extending general coverage to
“conflicts not of an international character.” In the case of armed conflict not of an
international character occurring in the territory of one of the High Contracting Parties, each
Party to the conflict shall be bound to apply, as a minimum, the following provisions:
1. Persons taking no active part in the hostilities, including members of the armed forces
who have laid down their arms and those placed hors de combat (out of the fight) by
sickness, wounds, detention, or any other cause, shall in all circumstances be treated
humanely, without any adverse distinction founded on race, colour, religion or faith,
sex, birth or wealth, or any other similar criteria.
2. . The wounded, sick and shipwrecked shall be collected and cared for. An impartial
humanitarian body, such as the International Committee of the Red Cross, may offer
its services to the Parties to the conflict. The Parties to the conflict should further
endeavor to bring into force, by means of special agreements, all or part of the other
provisions of the present Convention. The application of the preceding provisions
shall not affect the legal status of the Parties to the conflict.
This Common Article 3 establishes fundamental principles from which no immunity is
permitted to the armed forces to breach international norms. Article 3 of the Geneva
Conventions gives us detailed norms, which are obliged to be followed by the states in
internal conflicts under International Humanitarian Law. They are as follows:
• Humane treatment for all persons. It explicitly prohibits torture, cruel treatment,
murder, mutilation, humiliating and degrading treatment, the taking of hostages and
unfair trial.
• It is the duty of the State that the wounded, sick and shipwrecked be collected and
cared for.
• It also grants International Committee of the Red Cross (ICRC) the right to offer its
free services to the parties in the conflict region.
• It also calls parties to the conflict to bring all or parts of the Geneva Conventions into
force through special agreements.
• Norms of this Article becomes applicable both to the armed forces of a states and non-
State actors, namely organized armed groups that did not belong or belongs to a State
were involved in an armed conflict with the State’s armed forces.
• A role for the International Committee of the Red Cross (ICRC) plays a very
important role in non-international armed conflicts.
• Given that most armed conflicts today are non-international, application of this Article
is of the utmost importance. Its full respect is required.
c) Participants in the Conflict
So as to ensure the broadest possible application of international humanitarian law, the 1949
Geneva Conventions and their 1977 Additional Protocols use the neutral term parties to the
conflict to refer to both State and non-state actors taking part in hostilities. This term replaces
in modern legal vocabulary that of belligerent , which remains in common use to designate
individuals, groups, or States engaged in an armed conflict. However, armed conflicts are not
confined to confrontation between official armed forces of States that have recognized their
mutual existence. In the case of non-international armed conflicts, one of the parties is a non-
state armed group whose authority and existence may not be officially recognized, such as
rebels or insurgents. The non-state nature of those actors prevents them from signing
international conventions on humanitarian law, yet it is crucial that the implementation of
humanitarian law not be delayed by debates over the legal status of belligerents.
“Combatants” are those persons with a right to directly participate in hostilities between
States.
This is why humanitarian law distinguishes between the status of “parties to the conflict” and
that of “High Contracting Parties.” The latter refers to States that have ratified the
Conventions and therefore are bound to respect them, even if they are not directly involved in
an armed conflict.
GC III includes the following as armed forces:
 • Members of the armed forces of a Party, as well as members of militias or volunteer corps
forming part of such armed forces;
• Organized resistance movements under the conditions that they, (a) are commanded by a
person responsible for its subordinates, (b) have a fixed distinctive sign recognizable at a
distance, (c) carry arms openly, and (d) comply with IHL
• Persons who accompany the armed forces without actually being members thereof, such as
authorized civilian members of military aircraft crews, authorized war correspondents,
authorized supply contractors, authorized members of labour units or of services responsible
for the welfare of armed forces; and
• Levee en masse; Inhabitants of a non-occupied territory, who on the approach of the enemy
spontaneously take up arms to resist the invading forces without having had time to form
themselves into regular armed units, provided that they carry arms openly and comply with
IHL

g) Status of Spies, Mercenaries and unprivileged belligerent

Mercenary: A “mercenary” is a person who takes a direct part in hostilities motivated
essentially by the desire for private gain. A captured mercenary is not a prisoner of war.
As defined by Article 47 of Additional Protocol I to the Geneva Conventions, a mercenary is
any person who:
1. is specially recruited locally or abroad,
2. does, in fact, participate directly in the hostilities,
3. is motivated to take part in the hostilities essentially by the desire for private gain
and, in fact, is promised, by or on behalf of a party to the conflict, material
compensation substantially in excess of that promised or paid to combatants of similar
ranks and functions in the armed forces of that party
4. is neither a national of a party to the conflict nor a resident of a territory controlled by
a party to the conflict;
5. is not a member of the armed forces of a party to the conflict; and
 6. has not been sent by a State that is not a party to the conflict on official duty as a
member of its armed forces.
Under international humanitarian law, being a mercenary does not constitute a specific crime.
The same holds true for the Statute of the International Criminal Court. If arrested,
mercenaries are not entitled to the status of prisoners of war, but the detaining power can
decide to treat them according to this status. They must always be treated humanely
according to the fundamental guarantees of humanitarian law, as defined by Article 75 of
API. They can be prosecuted for being a mercenary only under the national law of the
detaining power if it contains such provisions designating mercenarism as a distinct crime.
International Convention against the Recruitment, Use, Financing and Training of
Mercenaries 2001:
Article 4: An offence is committed by any person who:
a. Attempts to commit one of the offences set forth in the present Convention;
b. Is the accomplice of a person who commits or attempts to commit any of the offences
set forth in the present Convention.
Article 5: States Parties shall not recruit, use, finance or train mercenaries and shall prohibit
such activities in accordance with the provisions of the present Convention.
Article 16: The present Convention shall be applied without prejudice to:
a. The rules relating to the international responsibility of States;
b. The law of armed conflict and international humanitarian law, including the
provisions relating to the status of combatant or of prisoner of war.
EXAMPLE: Rights groups file landmark legal case against Russian Wagner
mercenaries (European Court for Human Rights)
Advocacy groups from Russia, France and Syria have filed a legal case against Russian
mercenary group Wagner, accusing its fighters of torturing and beheading a Syrian man in
2017. The legal action, filed on behalf of a Syrian citizen, seeks to bring to light the murky
activities of the guns-for-hire group with Kremlin links. Wagner is widely reported to have
been deployed in Syria alongside Russian forces, which intervened in the conflict to assist
President Bashar al-Assad’s army in 2015.The suit represents the first time that anyone has
tried to hold any member of the Wagner group accountable for its activities anywhere in the
world.
Media has reported on Wagner activities in Ukraine, Syria, Sudan, Central African
Republic, Libya and Mozambique. Advocacy groups behind the lawsuit said the unit “is
known for committing grave human rights violations against civilians, at times with extreme
cruelty.”
“There is a chain of conflicts where often the same [Russia-linked] actors are involved but
they are never prosecuted,”
SPY: The difference between mercenary and spy is that mercenary is a person employed
to fight in an armed conflict who is not a member of the state or military group for which
they are fighting and whose prime or sole motivation is private gain while spy is a person
who secretly watches and examines the actions of other individuals or organizations and
gathers information on them (usually to gain an advantage).
Unprivileged Combatants: An “unprivileged” or “unlawful” combatant refers to a person
who does not have the combatant's privilege, but nevertheless directly participates in
hostilities. Such unlawful belligerents would include, civilians, noncombatant personnel in
the armed forces, as well as noncombatant members of the armed forces who, in violation of
their protected status, actively engage in hostilities. These persons temporarily forfeit their
immunity from direct individualized attack during such time as they assume the role of a
combatant. Unlike privileged combatants, unlawful combatants upon capture can be tried and
punished under municipal law for their unprivileged belligerency, even if their hostile acts
complied with the laws of war.
Such persons, who are not combatants, include civilian members of military aircraft crews,
supply contractor personnel, technical representatives of government contractors, war
correspondents, and members of labor units or civilian services responsible for the welfare of
armed forces.
It also includes part-time combatants, such as guerrillas, partisans, and members of resistance
movements, who either fail to distinguish themselves from the civilian population at all times
while on active duty or otherwise do not fulfil the requirements for privileged combatant
status.

UNIT 8. LIMITATIONS ON THE METHODS OF WARFARE

a) General limitations on the methods of warfare
"Means and Methods of Warfare" in brief means weapons, tactics and strategy applied in
armed conflicts. International humanitarian law (IHL) limits both these in order to achieve
the following objectives: • Distinguish at all times between civilians and combatants / civilian
objects and military objectives; and • Prohibit superfluous injury or unnecessary suffering to
combatants.
The following principles are paramount with respect to means and methods of warfare:
• The only legitimate object of war is to weaken the enemy’s military forces, for which it is
sufficient to disable the greatest possible number of enemy combatants;
• The right to choose methods and means of warfare is not unlimited;
• It is prohibited to employ methods (and means) of warfare of a nature to cause superfluous
injury or unnecessary suffering; and
• In development, acquisition or adoption of new means or methods of warfare it must be
determined whether their employment is not prohibited in some or all circumstances.
Following are some of the prominent prohibited/limited use weapons categories under IHL: •
Explosive bullets: • Dum-dum bullets; • Certain conventional weapons like; o Mines, o
Incendiary weapons, o Weapons involving non-detectable fragments, o Blinding weapons, o
Explosive remnants of war, and o Cluster munitions. • Chemical weapons; • Poison; •
Bacteriological and biological weapons; and • Nuclear weapons
The limitations or prohibitions to resort to specific methods of warfare stipulated in IHL are
predicated on three premises: • The choice of the methods of warfare is not unlimited;142 •
The use of methods of a nature to cause unnecessary suffering or superfluous injury is
forbidden;143 and • The only legitimate object of war is to weaken the military forces of the
enemy
The balance between military necessity and humanity is achieved through the application of
the rules of limitation, distinction, and proportionality
Prohibition to cause superfluous injury or unnecessary suffering: While there is no
universal agreement on what it means, States generally agree that suffering that has no
military purpose violates the rule. In its Advisory Opinion on the Legality of the Threat or
Use of Nuclear Weapons (8 July 1996), the International Court of Justice (ICJ) found that
superfluous injury or unnecessary suffering consisted harm that uselessly aggravated the
suffering of combatants, that is to say “a harm greater than that unavoidable to achieve
legitimate military objectives.”
For example, it may be argued that to threaten that there will be no survivors (denial of a
quarter) causes unnecessary suffering, i.e. suffering that serves no military purpose, and is
prohibited
Tutia, another country in Eurasia, has developed an improvised landmine which will emit
deadly poisonous gas on stepping on it and thereby killing any living being in 5 KM
diameter. The Prime Ministers of each country has asked their Military Commanders and
Legal
Lumnia, a country in Eurasia has developed a stun gun which emits a special electromagnetic
wave that will paralyse the combatants for hours if it is used. However, at the same time it
may also incapacitate the person mentally for the rest of his life. It is also impossible to use
the weapon with precision to a specific target.
b) Protection of cultural property during times of armed conflict
 The relevant modern international humanitarian law concerning protection of cultural
property can be traced back to Leiber Code published in 1863 (Instructions for the
Governance of the Army of the United States in the Field). This Code stressed that
inter-alia works of arts must be protected from injury even in fortified places while
these were being bombarded.
 The 1954 Hague Convention on the Protection of Cultural Property in the Event of
Armed Conflict encourages States to adopt peacetime protective measures for the
safeguarding of cultural property. The Convention also requires States Parties to
implement criminal sanctions for violations of the Convention and encourages States
Parties to promote the Convention. Finally, it creates a form of protection (called
“special protection”) for cultural property.
 The 1954 First Protocol, which prohibits the export of movable cultural property
from an occupied territory and requires its return to the territory of the State from
which the property was exported. The Protocol also prohibits the retention of cultural
property as war reparations
 The 1999 Second Protocol, which strengthens provisions of the Convention,
especially the provisions regarding the safeguarding of cultural property and conduct
during hostilities. It also creates a greater form of protection (called “enhanced
protection”) for cultural property of the greatest importance for humanity. The 1999
Second Protocol also defines sanctions triggered by serious violations against cultural
property. Finally, this Protocol creates an institutional element: the Committee for the
Protection of Cultural Property in the Event of Armed Conflict.
 The four Geneva Conventions adopted in 1949 on Protection of War Victims
contained no specific provision for the protection of cultural property, but they
reinforced already existing provisions of customary international law and the Hague
 Conventions of 1899 and 1907 on civilian population and civilian property by
prohibiting any destruction by the Occupying Power of real and personal property
belonging to private persons, or to the state, except where such destruction is rendered
absolutely necessary by military operations
 The following criteria were agreed for placing a cultural property under enhanced
protection–
- cultural heritage of greatest importance for humanity;
- protected by adequate domestic, legal and administrative measures recognizing its
exceptional cultural and historical value ensuring the highest level of protection;
and
- not used for military purposes or to shield military sites. The Party which has
control over such cultural property has also to make a declaration that it will not
be so used.

 Under the International Humanitarian Law instruments, for example, Additional

Protocol-I, Statute of the International Tribunal for former Yugoslavia and Rome
Statute of the International Criminal Court, willful destruction of cultural property is
treated as a war crime and commands universal jurisdiction. The obligation in such
case is to ‘either try or extradite’. The 1954 Hague Convention however only puts an
obligation on High Contracting Parties to take all necessary steps under their criminal
jurisdiction to prosecute and impose penal or disciplinary sanctions upon those
persons who commit or order to be committed a breach of the Convention

UNIT 9. ENFORCEMENT OF INTERNATIONAL HUMANITARIAN LAW

 a) Enforcement of International conventions
i. Provisions under the Geneva Conventions and Additional Protocols

• Protecting Powers: The Geneva Conventions introduced the system of appointing

Protecting Powers in order to ensure that protected persons are treated in accordance
with the Conventions (common Art 8). This system has not been effective, however,
and has rarely been implemented. The Geneva Conventions also provide for the ICRC
to take the place of the Protecting Powers, if none are appointed, and make provision
for the ICRC to visit prisoners of war and detained civilians (common Art 10)
(Pfanner, 2009). The ICRC today declines to act as protecting power instead of acting
on its own behalf.
• Fact-Finding Commission: Additional Protocol I introduced the International
Humanitarian Fact-Finding Commission, with the role of inquiring into any
allegations of serious violations of the Geneva Conventions or API (Art 90). The
Commission has rarely been relied upon, however, probably in large part due to the
requirement that inquiries can only be initiated by state parties into other state parties,
rather than allowing for initiation by individuals claiming breaches of IHL (Pfanner,
2009). (UN Fact-finding missions will be discussed later in this section).
• Penal Measures: Another method of enforcement envisaged by the Geneva
Conventions and AP I is the obligation by state parties to investigate persons accused
of carrying out or ordering the most serious war crimes, known as grave breaches
(wilful killing, torture or inhuman treatment, biological experiments, wilfully causing
great suffering, causing serious injury to body or heath, unlawful and wanton
extensive destruction and appropriation of property not justified by military
necessity). Grave breaches are liable to punishment and prosecution (GCI, Art 49,
GCII, Art 50, GC III, Art 129, GCIV, Art 146). While many states have incorporated
clauses in their national penal systems, providing for sanctions for grave violations of
IHL, it is up to them to decide how and by whom such measures should be taken
(Philippe, 2008).
• Reparations: Should parties to a conflict be held responsible for breaches in IHL in
international armed conflict, there is an obligation to pay compensation (AP1, Art 91).
It remains disputed, however, whether an individual right to reparations is recognised
under IHL (Pfanner, 2009).
ii. Military counsel and sanctions: Uniformed military lawyers comprise the compliance
unit within the military. They work to ensure that commanders and troops obey the rules
of engagement, which operationalise IHL. A study of military lawyers in the US Army
Judge Advocates General’s Corps (JAG) found that they help to devise the rules of
engagement and train troops in these rules, prior to deployment and on the battlefield. In
order to promote salience and compliance, these rules are framed in a way that
demonstrates their contribution to military effectiveness (Dickinson, 2010).

Soldiers who use excessive force are also subject to disciplinary action, often resulting in
criminal or administrative penalties. Disciplinary sanctions can be used to repress not
only grave breaches but also other violations of IHL. Depending on the scope of military
disciplinary law provided for in a state, the impact on compliance with IHL can be
significant. Sanctions have a dual aim: education, which involves encouraging soldiers to
discharge their responsibilities better and to respect the rules; and dissuasion, which
serves as a warning to all personnel under the authority imposing the sanction. In order
 for national military disciplinary sanctions to promote compliance with IHL, they must be
based on rules that are themselves inspired by IHL (Renault, 2008).

iii. Fact-finding: Fact-finding can be defined as a method of determining facts through the
‘evaluation and compilation of various information sources’ (Boutruche, 2011, p. 2).
While fact-finding missions, such as those conducted or supported by the UN Office of
the High Commissioner for Human Rights and the UN Human Rights Council (UNHRC)
have focused on human rights violations in peacetime and during armed conflict, they
have more recently expanded to include coverage of IHL – for example, the UNHRC
sponsored fact-finding on the Gaza conflict (2008-9) and on the ‘Israeli attacks on the
flotilla of ships carrying humanitarian assistance’ (2010). Other examples of fact-finding
by the UN on IHL issues including the Kalshoven Commission in Yugoslavia (1992) and
the International Inquiry on Darfur (1995), both of which were authorised by the UN
Security Council.

Fact-finding has also extended to cover non-state actors, such as the Darfur rebels and the
Palestinian authorities (Yihdego, 2012). There have also been fact-finding visits of the
UN special rapporteur on violence against women to various conflict areas, such as
Darfur, the DRC and Palestine. By ascertaining facts and interpreting and applying
general IHL rules, fact-finding can play an integral role in the implementation of IHL.
Fact-finding can also facilitate determinations of individual criminal liability. Some UN
fact-finding reports (e.g. Yugoslavia and Darfur) have led to criminal indictments
(Boutruche, 2011). There are various challenges to fact-finding on international human
rights and humanitarian law violations. These include:

iv. Separating fact-finding and legal evaluation: Lack of information, making it

difficult to reach definite conclusions and to satisfy robust standards of proof.
Establishing facts dependent on complex aspects of armed conflict, such as command
structures, legitimate military targets, and principles of proportionality.

Securing cooperation from the parties to the conflict in order to access relevant areas to
obtain and verify information. There are currently no legal consequences to non-compliance
with UNHCR and UN General Assembly fact-finding. In contrast, the UN Security Council
can refer fact-finding to the ICC or to a special criminal tribunal (such as in the case of
Yugoslavia) (Boutruche, 2011). Lack of witness protection mechanisms to protect those who
come forward to give information. Addressing the dilemma faced by humanitarian actors,
whose participation in fact-finding and other accountability mechanisms may undermine their
access to populations in need (see also International criminal law below). The interplay of
human rights and IHL in inquiries; facts in question can vary depending on whether they are
assessed under IHL or under human rights. Legal conclusions will also vary according to the
body of law applied. Boutruche (2011) notes that Commissions of inquiry tend to affirm the
complementary nature of human rights and IHL, highlighting in addition the principle of lex
specialis. Communicating the importance of fact-finding to local communities that have been
affected by violent conflict and the links to accountability and protection.

v. Human rights bodies

 International humanitarian law focuses on ‘the parties to the conflict’. In contrast,
international human rights law is formulated as individual entitlements and provides for a
right to remedy, through lodging individual complaints against alleged violations. Such a
right does not exist in IHL. As such, human rights bodies – human rights treaty
monitoring bodies and the Human Rights Council – have increasingly been called upon to
scrutinise the application of human rights law in situations of armed conflict. While their
competence is generally confined to determination of violations under human rights law,
this does not preclude them from taking into consideration provisions of IHL in order to
interpret such norms. The involvement of human rights bodies in situations of armed
conflict can be beneficial in terms of using human rights law to supplement and assist in
interpreting state obligations under IHL (Byron, 2006-7).

Some scholars have argued, however, that the consideration of IHL by human rights
bodies can be problematic. Human rights bodies often lack expertise in IHL and may
reach conclusions contrary to humanitarian law experts (Meron, cited in Byron, 2006-7).
Should human rights bodies continue to deal with cases involving armed conflict, it is
important that an effort is made to employ more members with IHL expertise. Another
criticism is that human rights law is not enforceable against non-state groups. As such, the
findings of a human rights body addressing a case involving a non-international armed
conflict may appear one-sided since it cannot hear applications against or demand reports
from non-state entities (Byron, 2006-7).

vi. Courts, tribunals and international criminal law

The International Court of Justice

The International Court of Justice, the main judicial organ of the United Nations, applies
all bodies of international law. It contributes to the implementation of humanitarian law
through its jurisprudence and its advisory opinions. It can be called upon to settle a
dispute between states on the application of IHL so long as both states have consented to
the Court’s jurisdiction. The ICJ’s interpretations of IHL, judgments and opinions are
influential and widely respected. (See, for example: the case of Nicaragua vs. the US,
concerning the provision of aid to the Contras in Nicaragua in this guide’s section on
Humanitarian Principles and Humanitarian Assistance; and the Legality of Nuclear
Weapons and Construction of a Wall in the Occupied Palestinian Territories opinions in
the section on Overlapping Areas of Law.) However, judgments may not necessarily be
implemented. The US has yet to pay war reparations to Nicaragua, as ordered by the
Court; and the opinions are inherently non-binding (Pfanner, 2009).

International Criminal Law

International criminal law prohibits certain categories of conduct viewed as serious

atrocities (primarily war crimes, crimes against humanity and genocide) and seeks to hold
accountable individual perpetrators of such conduct (individual criminal responsibility).
Grave breaches of IHL rules, as specified in the Geneva Conventions (see Provisions
under the Geneva Conventions and Additional Protocols above), constitute war crimes for
which individuals can be held directly accountable. It is the primary responsibility of
states to prosecute these crimes. If a state is unable or unwilling, then the crimes can be
 tried by international criminal tribunals established by treaty or by a binding decision of
the UN Security Council (Posse, 2006).

International ad hoc tribunals (e.g. ICTY and ICTR), mixed tribunals (e.g. the Special
Court for Sierra Leone), and the permanent International Criminal Court have been set up
to enforce individual criminal responsibility for violations of IHL, crimes against
humanity and genocide. Responsibility is incurred not only by acting, but also by failing
to act where there is an obligation to act. This includes military leaders and their superiors
who fail to take necessary and reasonable measures to prevent or suppress the
commission of unlawful acts by subordinates, over whom they have effective control.
This form of liability, termed ‘command responsibility’ has been established by the ICTY
and ICTR.

Court decisions are not simply declaratory of the law, but courts themselves are important
actors in their development. The ICTY and ICTR interpreted their mandate as extending
to non-international armed conflict, whereas the Geneva Conventions and Additional
Protocols only specified the application of individual criminal responsibility in
international armed conflict situations. This extended jurisdiction was subsequently
incorporated into the Rome Statute of the International Criminal Court. The ICC also
specifies two categories of crimes over which they have jurisdiction. The first concerns
grave breaches of the Geneva Conventions in international armed conflict and serious
violations of Article 3 in the case of non-international armed conflict. The second
concerns other serious violations of the laws and customs applicable in international and
non-international armed conflicts. This includes ‘intentionally directing attacks against
personnel, installations, material, units or vehicles involved in a humanitarian assistance
[mission]’ as long as they are entitled to civilian protection under IHL (Rome Statute,
Articles 2(b)(iii) and 2(e)(iii)). In addition to war crimes, the ICC and the other
international (and mixed) tribunals have jurisdiction over crimes against humanity,
genocide and the crime of aggression.

Humanitarian organisations operating in conflict areas are often witness to violations that
can be used as evidence in international criminal proceedings. However, their
participation in such proceedings could undermine their access to populations in need. If
parties to the conflict that are facilitating the delivery of assistance are at risk of criminal
investigation and prosecution, they may deny humanitarian actors access to affected areas
and withdraw from humanitarian dialogue. Humanitarian organisations need to develop a
strategy to address this dilemma; and international criminal tribunals need to be aware of
these risks. Both sides should work together to minimise potential adverse impacts on the
provision of humanitarian assistance (La Rosa, 2006).

b) State practice : India

• In India, Articles 51 and 253 of the Indian Constitution play a pivotal role in the
enforcement of international laws. The State must respect these laws and adopt such
laws in order to maintain peaceful and friendly relations with foreign countries,
international organizations, associations and bodies.
• India is a party to more than one hundred and sixty treaties and
conventions dealing with various fields of law like air law, space law and maritime
law.
• India ratified the Geneva Convention in 1950, becoming the 5th country in the World
and the first country in the region to adopt and implement legislation for the 1949
Conventions. India also ratified Protocol III but is not a signatory to the Additional
Protocols I and II. The Regional Delegation of ICRC in India was opened in 1982;
• However, their history on the subcontinent dates back to 1917 and the First World
War, when the first ICRC representatives arrived for an assessment of prisoner-of-war
camps. At that time, there was no organisation in India that provided relief services to
affected soldiers, except for a branch of the St. John Ambulance Association and a
Joint Committee of the British Red Cross. A bill to constitute the Indian Red Cross
Society was adopted in March 1920.
• In the years that followed, the ICRC not only continued to provide assistance to the
victims of the Second World War, but also came to the aid of victims of new conflicts
breaking out around the world – including those between India and Pakistan in 1947,
1962, 1965 and 1971.
• During the India-Pakistan conflict of 1965, the ICRC was recognized as a neutral
intermediary, which allowed its delegates to visit prisoners of war and civilian
detainees, assist in repatriation, and provide necessary relief to the affected
population, in coordination with the Indian Red Cross Society.
• Whys India has not ratified AP I and AP II: India was in principle not against
expanding the scope of the Geneva Conventions when the diplomatic conference for
the adoption of Additional Protocols was convened in 1974-1977. The reasons could
be mainly because these protocols have expanded the scope of international
humanitarian law as provided in the four Geneva Conventions, which may have
certain implications at the domestic level. In 2012 J S Verma Committee was also
constituted to consider this issue, which recommended India should ratify AP I and
AP II. One major concern could be the API’s categorization of self-determination
movements as international armed conflicts. 
• Another concern could be that India was not in favour of accepting the category of
non-international armed conflict itself. This position no longer remains valid as India
has become a party to other international treaties which govern non-international
armed conflict situations. An example of this is the Convention on Certain
Conventional Weapons of 1980.
• The other apprehension could be that if India accedes to these treaties, it would be
under obligation to extend their protections to those who are involved in violent
armed conflict with the Indian state and that would in turn give these
insurgents political legitimacy.
• Indeed, application of these treaties would also impose the moral obligation of
compliance on non-state armed groups, whether the Maoists in central India or the
insurgents in Jammu and Kashmir and the north-east of India.
UNIT 10. INTRODUCTION TO INTERNATIONAL REFUGEE LAW
a) Definition of Refugee
A refugee is someone who has been forced to flee his or her country because of persecution,
war, or violence. A refugee has a well-founded fear of persecution for reasons of race,
religion, nationality, political opinion or membership in a particular social group. Most likely,
they cannot return home or are afraid to do so. War and ethnic, tribal and religious violence
are leading causes of refugees fleeing their countries.

b) General principles for determining refugee status

c) Migrants, immigrants, internally displaced and stateless persons
Migrant: Migrants move from one country to another usually to find work, although there may be
other reasons for migrating such as to join family members. Some move voluntarily, while others are
forced to leave because of economic hardship or other problems. Regardless of their status in a
country, both regular and irregular migrants have human rights, including the right to freedom from
slavery and servitude, freedom from arbitrary detention, freedom from exploitation and forced
labour, the right to freedom of assembly, the right to education for their children, equal access to
courts and rights at work. These rights are laid out in the Migrant Workers’ Convention (1990) as well
as other human rights treaties.
Internally displaced person (IDP) : An internally displaced person (IDP) is a person who
has been forced to flee his or her home for the same reason as a refugee, but remains in his or
her own country and has not crossed an international border. Unlike refugees, IDPs are not
protected by international law or eligible to receive many types of aid.
Immigrant / Returnee: A returnee is a refugee who has returned to his or her home country.
The majority of refugees prefer to return home as soon as it is safe to do so, after a conflict
and the country is being rebuilt. The UN High Commissioner for Refugees (UNHCR)
encourages voluntary repatriation, or return, as the best solution for displaced people.
Stateless Person: A stateless person is someone who is not a citizen of any country.
Citizenship is the legal bond between a government and an individual, and allows for certain
political, economic, social and other rights of the individual, as well as the responsibilities of
both government and citizen. A person can become stateless due to a variety of reasons,
including sovereign, legal, technical or administrative decisions or oversights. The Universal
Declaration of Human Rights underlines that “Everyone has the right to a nationality.”
UNIT 11. THE LEGAL AND INSTITUTIONAL FRAMEWORK FOR REFUGEE
PROTECTION
a) Origin and development of international refugee principles
b) 1951 Refugee Convention and the 1961 Protocol
The 1951 Convention relating to the Status of Refugees and its 1967 Protocol are the core of
the international protection system, complemented by regional treaties and declarations that
also address the rights of refugees. But international refugee law does not operate in isolation.
It is best understood in conjunction with international human rights law, starting with the
1948 Universal Declaration of Human Rights, and with international humanitarian law (the
law of war).
Regional instruments represent a further set of protections, particularly the 1969
Organization of African Unity Convention (for Africa) and, although it is not formally legally
binding, the 1984 Cartagena Declaration (for Latin America).
The 1951 Refugee Convention
UN and making of the convention: In 1951, the United Nations Conference of
Plenipotentiaries on the Status of Refugees and Stateless Persons was held in Geneva. This
conference led to the treaty called the "Convention Relating to the Status of Refugees of 28
July 1951.“ The international treaty establishes the definition of a refugee and their rights. A
key element of the legal status of refugees is the principle of "non-refoulement" - a
prohibition of the forcible return of people to a country where they have reason to fear
prosecution. This protects refugees from being deported to a dangerous home country.
Rights under the Convention : The first tier of rights applies merely on the basis of
presence within a state party’s territory, even if this presence is illegal. The second tier of
rights are to be granted when refugees are ‘lawfully present’ in the host state. Other rights are
accrued when refugees are ‘lawfully staying’ in a state party (usually after recognition of their
refugee status by the state concerned).
• Freedom of religious practice and religious education (no reservations permitted)
• Public elementary education
• Public relief, social security and labor laws
• Access to courts and legal assistance (no reservations permitted)
• Gainful Employment and Welfare.
• On The Issue of Identity Papers and Travel Documents.
• On The Applicability of Fiscal Charges and
• On Their Right to Transfer Their Assets to Another Country Where They Have Been
Admitted for The Purposes of Resettlement.

Other Matters dealt:

• Acquisition of movable and immovable property (Article 13)
• Gainful employment (Articles 17, 18 and 19)
• Housing (Article 21)
• Public relief (Article 23)
• Labor legislation and social security (Article 24)
1967 Protocol : The 1967 Protocol is independent of, though integrally related to, the 1951
Convention. The Protocol removes the temporal and geographic limits found in the
Convention. By acceding to the Protocol, States agree to apply the core content of the 1951
Convention (Articles 2–34) to all persons covered by the Protocol’s refugee definition,
without limitations of time or place.
Most States have preferred to accede to both the Convention and the Protocol. In doing so,
they reaffirm that both treaties are central to the international refugee protection system. The
1951 Convention and 1967 Protocol are the modern embodiment of the age-old institution of
asylum, Their strength remains their universal and non-discriminatory character and the
fundamental values they reflect.
• 1967 Protocol removed geographical and time limitations.
• Prior, only Europeans involved in events before 1 January 1951, could apply for
refugee status.
• As a result, it turned the Convention into a truly universal instrument that could
benefit refugees everywhere

UNIT 12. THE ROLE OF THE UNHCR IN THE VARIOUS REFUGEE CRISES
a) Intervention under the League of Nations
27 Jun 1921, League of Nations under the direction of Fridtjof Nansen. Comprised the first
international agency dealing with refugees, covering legal and political protection.
The In February 1921, Gustav Adore, the president of the International Committee of the Red
Cross (ICRC), drew the League of Nations’ attention to the plight of over one million Russian
refugees scattered all over Europe, in order to suggest the appointment of a High
Commissioner for Russian Refugees.
The interwar years witnessed the beginning of international refugee law, initially in response
to a series of humanitarian crises in the aftermath of the Great War. Subsequently, the League
of Nations found itself at the centre of an ongoing debate concerning the role of the
international community with regard to the obligations of states and the protection of
individuals – particularly refugees who had been deprived of their citizenship.

b) Intervention under the United Nations

In the late 1940s a UN body was required to oversee global refugee issues. After WWII there
was a refugee crisis, with millions of people displaced in Europe. In the late 1950s, uprisings
and conflict led to UNHCR involvement outside of Europe. As colonies in Africa gained
independence in the 1960s, large numbers of refugees fled unstable and cruel governments.
Unlike in Europe, these countries usually fled into equally unstable countries.
Purpose of UNHRC:
• To protect the rights and well-being of refugees.
• Ensure that everyone can exercise the right to seek asylum.
• Be non-political and humanitarian.
• Strive to find permanent solutions for refugees such as to return home voluntarily,
integrate locally or to resettle in a third country.
Role of UNHRC:
• Ensures the basic human rights of people in their countries of asylum
• Ensures refugees will not be returned involuntarily to a country where they could face
persecution
• Promotes or provide legal and physical protection, and minimize the threat of
violence
• Aims to provide at least a minimum of shelter, food, water and medical care
• Helps with refugee registration, assistance and advice on asylum applications,
education and counselling.
• Support returnees with transport home and assistance packages
• Works with governments to find practical and humanitarian responses
• In countries that haven’t signed the Refugee Convention, UNHCR is generally
responsible for protecting refugees.

UNIT 13. INTERNATIONAL REFUGEE PRINCIPLES

a) Asylum and principle of non-refoulement
Asylum-seeker: When people flee their own country and seek sanctuary in another country,
they apply for asylum – the right to be recognized as a refugee and receive legal protection
and material assistance. An asylum seeker must demonstrate that his or her fear of
persecution in his or her home country is well-founded.
Difference b/w Refugee and Asylum seeker: A refugee is someone who has been forced to
flee their home country due to persecution, war, or violence. They have already left their
home country and have been recognized as a refugee by the country in which they have
sought protection. An asylum seeker, on the other hand, is someone who has left their home
country due to persecution, war, or violence, but has not yet been granted refugee status.
They have applied for protection in another country and are waiting for a decision on their
application.
Non refoulment : A refugee’s right to be protected from forced return, or refoulement, is the
cornerstone of international refugee protection. It is contained in Article 33(1) of the 1951
Convention, which states:
“No Contracting State shall expel or return (‘refouled’) a refugee in any manner whatsoever
to the frontiers of territories where his life or freedom would be threatened on account of his
race, religion, nationality, membership of a particular social group or political opinion.”
All refugees are entitled to protection from refoulement – including those who have not been
formally recognized as such. This means that asylum seekers whose status has not yet been
determined by the authorities are protected from forced return.
Article 33 (2) of the 1951 Convention outlines two exceptions to the principle of non-
refoulement. It permits the refoulement of a refugee if there are reasonable grounds for
regarding him or her as a danger to the security of the country where he or she is present or if,
having been convicted of a particularly serious crime, the refugee constitutes a danger to the
community. However, Article 33(2) does not release States from their obligations under
international human rights law.
Article 3 of the Convention against Torture prohibits the expulsion or return of anyone to a
place where there is a substantial danger of torture. Articles 6 and 7 of the International
Covenant on Civil and Political Rights have also been interpreted as prohibiting expulsion or
return to torture, or to cruel, inhuman or degrading treatment or punishment or the death
penalty. Several regional human rights instruments have similar provisions.
What are the State’s responsibilities? : The prohibition of refoulement
• Applies to all refugees, and to asylum-seekers whose status has not yet been
determined, as this group may include refugees;
• Applies wherever a state exercises jurisdiction, including at the border and
extraterritorially, for instance in the context of interception on the high seas;
• Engages the State’s responsibility as soon as someone claims to be at risk or to fear
return to his or her country of origin or any other country. There is no single correct
formula or phrase for how this fear needs to be expressed;
• Requires States to respect the principle of non-discrimination, and to refrain from
restricting entry on the basis of a person’s nationality, religion, ethnicity, health status,
or other criteria

b) Durable Solutions- It is important to put in place measures that make it possible for
refugees to be self-reliant pending a durable solution; to establish a legal framework and
systems to ensure that refugees are able to enjoy more rights as time passes; and that all
solutions, including voluntary repatriation and integration in the country of asylum, can be
carried out in safety and dignity. . The task of seeking “permanent solutions” for the problem
of refugees was assigned to UNHCR when the organization was created. The term most often
used today is “durable solutions”. This can be accomplished through voluntary repatriation to
the refugee’s country of origin, through settlement and integration in a country of asylum that
the refugee reached spontaneously (“local integration”) or by means of organized
resettlement. UNHCR’s Statute refers broadly to these pathways to solutions when it speaks
of the voluntary repatriation of refugees and of their “assimilation” into new national
communities.
Laying the groundwork for solutions:
• Voluntary repatriation
• Local integration: Settling in the host community
• Resettlement (Resettlement involves the transfer of refugees from an initial country in
which they have sought safety to another State that agrees to admit them as refugees, and
grant them permanent residence and the opportunity for eventual citizenship. Resettlement is
not a right and States are not obliged to accept refugees for resettlement. However, it is a
powerful protection tool and an important signal of international solidarity. Resettled refugees
are on the pathway to integration from the moment they arrive in their adopted country)
• Innovative approaches to resettlement and other migration channels
• Naturalization (In the spirit of Article 34 of the 1951 Convention, support the enactment of
other measures to facilitate the integration and eventual naturalization of refugees in the host
State).
• Comprehensive approaches to resolve protracted refugee situations.
c) Safe Haven
d) Principle of Family Unity - The integrity of the refugee family is a legal principle and a
humanitarian goal; it is also an essential framework of protection and a key to the success of
durable solutions that can restore a refugee to something approximating a normal life.
Although the right to seek and enjoy asylum in another country is an individual human right,
the individual refugee should not be seen in isolation from his or her family. The drafters of
the 1951 Convention relating to the Status of Refugees. linked a protection regime premised
on the individual’s fear of persecution to the family unity principle in a strongly worded
recommendation in the Final Act of the diplomatic Conference that adopted the Convention.
The States that are members of the Executive Committee of UNHCR have repeatedly
emphasized the importance of family reunion.
UNIT 14. INTERNATIONAL REFUGEE LAW : SUCCESS OR FAILURE? a)
Challenges in the implementation and enforcement of International Refugee Law
1. Limited resources: Many countries that are signatories to international refugee law
lack the necessary resources to provide adequate protection and support to refugees
and asylum seekers. This can lead to a lack of basic services, such as healthcare and
education, and can leave refugees vulnerable to exploitation and abuse.
2. Political and legal barriers: Some countries may be reluctant to provide protection to
refugees and asylum seekers due to political or legal barriers. For example, some
countries may have restrictive immigration policies or may be reluctant to recognize
refugees from certain regions or countries.
3. Lack of coordination: The protection of refugees and asylum seekers requires
cooperation and coordination between different actors, including states, international
organizations, and NGOs. However, there is often a lack of coordination between
these actors, which can result in inefficiencies and gaps in protection.
4. Enforcement mechanisms: Although international refugee law is binding, there are
often limited mechanisms for enforcement. This can make it difficult to hold states
accountable for violations of refugee rights and can lead to a lack of consequences for
non-compliance.
5. Divergent interpretations: International refugee law can be subject to differing
interpretations by different actors, which can result in inconsistencies in
implementation and enforcement.
6. Refugee crisis and mass influx: In the case of a refugee crisis or mass influx, it can be
difficult for states and other actors to provide adequate protection and support to all
refugees and asylum seekers. This can result in overcrowding in refugee camps,
inadequate access to basic services, and a lack of legal protection
7. Gender based violence: Women fleeing gender-based violence continue to struggle to
be recognised as refugees, despite UNHCR and others maintaining that ‘properly
interpreted’ the Convention on the Status of Refugees 1951 (CSR) covers gender-
related claims. One reason for this is the difficultly in establishing a connection
between gender-based violence and the ‘Convention grounds.
8. Women vulnerability: It is the female refugees across the world are highly vulnerable
to all forms of sexual and physical violence. In addition to the dangers women face
from contesting armed groups, once on the move from the conflict zone, they are also
at risk of being brutalised by human traffickers or even border security forces. Even
after exiting the conflict zone, safety can be elusive. Staying in a refugee camp within
the country of origin or seeking protection elsewhere brings serious threats to
women’s security, freedom and health.
 UNIT 15. LAWS RELATING TO REFUGEES IN INDIA
a) National framework for refugee protection in India
While India has been human and generous towards refugees, India has signed neither the
1951 United Nations Refugee Convention nor its 1967 Protocol. India is also yet to frame a
coherent and uniform law in addressing the issue of asylum. The term “refugee” is nowhere
mentioned in any domestic laws of India.
There is no legislation on the issue, this policy has traditionally been based on a combination
of ad hoc executive policies and judicial pronouncements, and thus lacks any formal
structure. Although, Asylum Bill, 2015 was introduced by a private member. The bill
proposes that this law “will reflect the leading role India has played in sheltering those
fleeing persecution”.
Foreigners Act, 1946, fails to address the peculiar problems faced by refugees as a class. It
also gives unbridled power to the Central government to deport any foreign citizen. Further,
the constitution of India also respects the life, liberty, and dignity of human beings under
Article 21.
Other Legislations in India:
• Foreigners Act of 1946: Under Section 3, the Central government is empowered to
detect, detain and deport illegal foreign nationals.
• Passport (Entry into India) Act, 1920 : Under Section 5, authorities can remove an
illegal foreigner by force under Article 258(1) of the Constitution of India.
• Registration of Foreigners Act of 1939: Under this, there is a mandatory
requirement under which all foreign nationals (excluding overseas citizens of India)
visiting India on a long-term visa (more than 180 days) is required to register
themselves with a Registration Officer within 14 days of arriving in India.
• Citizenship Act, 1955: It provided provisions for renunciation, termination, and
deprivation of citizenship.
• Further, Citizenship Amendment Act, 2019 (CAA) seeks to provide citizenship only
to Hindu, Christian, Jain, Parsi, Sikh, and Buddhist immigrants persecuted in
Bangladesh, Pakistan, and Afghanistan.
Status of Refugees: For those refugees registered directly by the Government such as those
from Sri Lanka, they are entitled to Aadhaar cards and PAN cards to enable their economic
and financial inclusion. They can have access to national welfare schemes and contribute
effectively to the Indian economy. However, for those registered with UNHCR, such as
refugees from Afghanistan, Myanmar and other countries, while they have access to
protection and limited assistance services, they do not possess government-issued
documentation. Thus, they are unable to open bank accounts and don’t get benefit from all
government welfare schemes, and are thus inadvertently left behind.
India’s Non-refoulment policy: Non-refoulement is the principle under international law
which states that a person fleeing persecution from his own country should not be forced to
return to his own country. As part of customary international law, the policy of non-
refoulement prevents a country from expelling refugees to countries where their lives or
liberties would be threatened. India gave Tibetan refugees arriving in the 1960s and 1970s
preferential treatment compared to the other refugee communities living in India for a variety
of reasons. India bases its treatment of various refugee groups on political grounds, resulting
in an unstable and ever-changing domestic policy. 
CAA Issue: There are apprehensions that the CAA, followed by a country-wide compilation
of the National Register of Citizens (NRC), will benefit non-Muslims excluded from the
proposed citizens’ register, while excluded Muslims will have to prove their citizenship. It
contradicts the Assam Accord of 1985, which states that illegal migrants, irrespective of
religion, heading in from Bangladesh after 25th March, 1971, would be deported.
• There are an estimated 20 million illegal Bangladeshi migrants in Assam and they
have inalienably altered the demography of the state, besides putting a severe strain
on the state’s resources and economy.
• Against Fundamental Rights: Critics argue that it is violative of Article 14 of the
Constitution (which guarantees the right to equality and is applicable to both the
citizens and foreigners) and the principle of secularism enshrined in the preamble
of the constitution.
• Discriminatory in Nature: India has several other refugees that include Tamils from
Sri Lanka and Hindu Rohingya from Myanmar. They are not covered under the Act.
• Difficulty in Administration: It will be difficult for the government to differentiate
between illegal migrants and those persecuted.
Rohingya Issue: The International Court of Justice (ICJ) passed an order in the case of
Gambia against Myanmar about the treatment of the Rohingya in Myanmar. The UN and
other international bodies have said that Myanmar conducted genocide against Rohingyas.
India has been in denial. The Rohingya to be pushed back to their country of origin.
Rohingya refugees fleeing what the world now recognizes as genocidal conditions in
Myanmar have not been permitted to enter the country and have been denied appropriate
human and humane conditions of work. 
CASE LAW : National Human Rights Commission v. State of Arunachal Pradesh (1996)
Restricted the forcible expulsion of the Chakma refugees from the state and asked the state to
protect the refugee groups right to life and personal liberty. Addressing the open forum,
NHRC chairperson Justice Arun Kumar said, "Article 14, 20 and 21 of the Constitution
extend rights to all persons, including refugees and asylum seekers. But their permit to stay in
the country cannot be extended forever without them acquiring citizenship, as also observed
by the Supreme Court." Justice Kumar said that the legislature needs to be impressed upon
and told to enact a national law for refugees and asylum-seekers so that ad hoc-ism,
confusion and unnecessary litigation can be avoided.

b) Role played by the National Human Rights Commission, SAARC and other
institutions
Role of NHRC : The National Human Rights Commission (NHRC) called for a national law to end
ad hoc-ism and ambiguity in dealing with refugees and asylum seekers in India. During an online
open discussion (2022), it was unanimously decided that a national law that includes all the best
practices implemented so far is needed to ensure uniformity and legal sanctity in protection of
human rights of refugees and asylum seekers across the country.

Role of SAARC: None of the seven countries in this region is a party to the 1951 Convention or the
1967 Protocol relating to the Status of refugees. However, these countries have ratified some of the
human rights instruments in the recent past. All these seven countries have ratified the International
Convention on the Elimination of All Forms of Racial Discrimination, 1969, the Convention on the
Rights of the Child, 1989 and the Convention on the Elimination of All Forms of Discrimination
Against Women, 1981. All of them have ratified the four Geneva Conventions as well.

The countries in the South Asian region have placed reliance on a 'bilateral approach' rather than
'multilateral approach' in their policies to resolve their conflicts, including the policies on 'population
displacement' and 'refugees‘.

The states in this region allege that even the states that have ratified the Convention or the Protocol
are not following the provisions effectively and as such would not be beneficial to the countries in
the South Asian region to ratify them now.

While hosting one of the largest refugee populations in the world, South Asian countries continue to
ignore compliance with international legal instruments. Except for Afghanistan, no SAARC members
are parties to the 1951 United Nations Convention Relating to the Status of Refugees or the 1967
Protocol. Yet even Afghanistan – one of the world’s largest senders of refugees since the 1980s –
acceded to the Convention and its 1967 Protocol only in 2005. With nearly four million displaced
Afghans, Afghanistan is second, after Syria, as a major refugee source country.

Refugee Movements :

• The Chakma refugees, the tribal groups of Chittagong Hill Tracts (CHT) consisting of Chakma,
Murangs and Tripura’s migrated to the territories of Assam, Tripura, Arunachal Pradesh,
Mizoram and Meghalaya after the partition in 1947. During 1963, about 45,000 Chakma fled
to India from East Pakistan as victims of the Kaptai Hydroelectric project that inundated their
homelands. They multiplied and their numbers swelled to 85,000.
• In 1959, the Dalai Lama, a religious and political leader and his followers fled Tibet and came
to India seeking asylum. Asylum was granted to them by the then Prime Minister of India,
Mr.Jawaharla1 Nehru, and these Tibetan refugees continue to stay in India even today.
• The existence of the cold war period coupled with the Soviet Union's invasion of Afghanistan
in 1979 resulted in a large-scale migration of the Afghans into Pakistan. Prior to this, there
were movements of the Afghans into Pakistan after the coup in 1973. However, the
continued infighting kept the problem alive and Pakistan has about 1,200,000 Afghan
refugees even today. India also hosted about 40,000 Afghan refugees; their status being
determined by the UNHCR.