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CENTRAL UNIVERSITY OF SOUTH BIHAR

PANCHANPUR CAMPUS, GAYA

PROJECT TOPIC:

Concept and Development of Humanitarian Law

Submitted by: - Submitted to:-


Shruti Miss Poonam Kumari
B.Sc. LLB (Hons.) Assistant professor
10th semester School of law and governance
CUB1413115027 CUSB

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Acknowledgement

I hereby take the opportunity thank Miss Ponnam Mam, for her consent and the inspiration that
she radiates. Her jovial behaviour and ease making attitude eased my tension and the initial
doubts that I had about my potentialities. I also want to thank my friends who helped me a lot
in preparing this project. I have also taken help from several books and websites for doing this.
Ultimately, I once again thank Poonam Mam, who made indelible impact on me which shall
go beyond the pages of this project and reflect in all my endeavours of life.

Hoping Acceptance and Appreciation from you, I hereby submit this project.

- Shruti

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TABLE OF CONTENT

S.No Contents Page No.


01 Introduction 7-10
02 Meaning of international humanitarian law 11
2.1 Where did international humanitarian law originate? 11-12
2.2 When does international humanitarian law apply? 12
2.3 What does international humanitarian law cover? 12-13
2.3 Is international humanitarian law actually complied with? 13
2.4 What should be done to implement the law? 13-14
03 Concept of human rights and humanitarian laws 15-16
05 Development of International Humanitarian Laws (IHL) 17-21
06 International Humanitarian Law India’s Attitude 22
6.1 Genocide Convention, 1948 22-24
6.2 Geneva conventions, 1949 24-25
6.3 Decision of the supreme court 1970 25-26
6.4 Statute of the International Criminal court, 1998 26-28
07 Conclusion 29

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Title of the proposed study

Concept and Development of Humanitarian Law

Literature Survey/Review

The following Primary and Secondary sources have been referred to

Primary Sources

 Book referred

The following textbooks have been referred

1. Mani V.S Handbook of International Humanitarian Law in South Asia (Oxford


university press) 3rd Edition 2014
2. Naorem Sanajaoba A Manual of International Humanitarian Laws” (Oxford university
press) 3rd Edition 2004
3. Balachandran &.Rose Verghese, Introduction to International Humanitarian Law,
ICRC New Delh, Sanajaob;(2004)
4. V.N.Shukla, “Constitution of India”, Eastern Book Company, 2004.
5. Alam, Aftab, Human Rights in India: Issues and Challenges (Delhi: Raj Publication,
2000
6. Dunne T. and Wheeler, N.J. (eds.): Human rights in global politics, (Cambridge:
Cambridge University Press, 2014)

 Statutes Referred

1. The 1954 Convention for the Protection of Cultural Property in the Event of Armed
Conflict, plus its two protocols;

2. The Biological Weapons Convention 1972

3. The Conventional Weapons Convention and its five protocols 1980

4. The Chemical Weapons Convention v

5. The Ottawa Convention on anti-personnel mines 1997

6. The Optional Protocol to the Convention on the Rights of the Child on the
involvement of children in armed conflict. 2000

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7. The constitution of India (Bare Act)

8. The Geneva Convention 1949

9. The Geneva Convention Act 1960

10. Statute of International Criminal Court 1998

Secondary Sources

 Journal /Article referred


1. Dr. Rakesh Kr. Singh, International Humanitarian Law and Protection of Terrorism,
Journal of Constitutional and Parliamentary Studies, Jan-June 2008, Vol.42 p.79-
88
2. V.S. Mani, The Fifth Afghan war and International Law’, Economic and Political
Weekly, Vol. 37, no. 4, 2002, pp. 294-298
3. Yogesh Tayagi, ‘The Conflict of Law and policy on Reservation to human rights
Treaties’, British Yerarbook of International Law, Vol. LXXI, 2000, p. 205
4. Seema P.S., “Incorporation of International Human Rights Documents into Indian
Law- Response of the Supreme Court”, CULR, 2006
 Reports Referred
1. Reports of the Economic and Social Council and of the Sixth Committee', UN Doc.
A/760/Corr.2, 3rd Session, 178th Plenary Meeting, pp. 826.
2. Gazette of India, Extraordinary, 160, Part 1, Section 2, at P. 1098
3. Reponses to proposal by Venezula and Pakistan. n., at pp. 815 The Hindu (New
Delhi), 31 May 2002, at p.10.
4. Balakrishnan Rajagopal, ‘Gujrat: A plea and A Proposal’,The Hindu, 27 March
2002.
 Website referred
1. http://avalon.law.yale.edu
2. http://en.wikipedia.org
3. http://indiankanoon.org
4. www.icj-cij.org
5. http://www.icc-cpi.int

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Hypothesis

The following hypotheses would be taken account of in this study and they have been examined
in the course of discussion. A conclusion has been drawn to assess whether the hypotheses
proposed were true to their extent of statement

1. What is international humanitarian law?


2. Where did international humanitarian law originate?
3. Is international humanitarian law actually complied with?

Research methodology

In accordance with the objectives of the present study, doctrinal research design has been
adopted. The doctrinal design has been used to study the Concept and Development of
Humanitarian Law. Doctrinal Research is a research, as we all know, based on the principles
or the propositions made earlier. It is more based on the sources like books of the library, and
through resources collected through access to various websites. For the purpose of the Research
Project, the Researcher has collected relevant materials from books on international
humanitarian Law and also from various websites. The Research has been done primarily with
the help of case laws and leading judgements of various courts as well as legislative provisions.
Various articles from the internet sources have also been referred.

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INTRODUCTION

Armed conflict often represents the dark side of human nature anger, greed, vengeance, false
pride, ill-feeling, intolerance, and hatred. War and armed conflict survive in both international
and national societies. Despite the fact that most ancient civilizations of the world have had
clearly laid down humanitarian rules which were required to be observed, most nations go to
war. Indeed, human society has till this day failed to abolish the use of violence in
intracommunity relations, let alone inter-state relations.

According to General Clausewitz, the grand priest of war as the ultimate means of dispute
settlement, ‘War is an act of violence.... In a situation as dangerous as war, errors of
magnanimity are the worst. Indeed, moderation in the philosophy of war is absurd’.1 The
Clausewitz philosophy of violence then underscores the innate inter-relationship between the
factors that trigger resort to violence, and those that prompt disregard for any restraints or
inhibitions on levels or means and methods of violence employed. The root causes of resort to
violence also condition the effectiveness or otherwise of such restraints or inhibitions. From
this viewpoint, international humanitarian law (IHL) has a tenuous relationship with the
principles of non-use of force and disarmament. On the one hand, like all law it throws its
weight in favour of a total abolition of armed conflict in international relations. On the other,
it comes into operation at the outbreak of hostilities, as if to legitimize situations resulting from
use of force. But the fact that it comes into operation at the outbreak of violence does not
necessarily imply legitimation of situations resulting from use of force itself. IHL is not directly
concerned with the issues of legitimation of violence; it is primarily concerned with the
protection of victims of any violence.

Even if IHL is always ‘one war behind’, its normative development over the past hundred and
fifty years has been most impressive. However, there is a wide gulf between the promise of
formative framework and realities on the ground. In fact, each stage of development of the law
triggered by some horrid historical experiences through a catastrophe of senseless violence.

The origin of the ‘Geneva Law’ was concern for the protection of the sick and wounded
combatant at war on land, leading to a treaty in 1864. This war later, in 1906, expanded to

1
Quoted by judge Mohammed Bedjaoui, ‘Humanitarian Law at a Time of Failing National and International
consensus: A report for the independent commission on international Humanitarianism Issue’, in Modern War:
The Humanitarian challenge – A report for the Independence Commission on International Humanitarian Issue,
London / New Jersey: Zed Books (1986), P. 5

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encompass the sick and the wounded at war at sea, as warfare at sea became 'popular' among
states, and still later, in 1929, it was further revised and expanded to cover prisoners of war.
The spine-chilling experiences of Europe during the inter-war period highlighted the need to
protect the civilian population from the cruel incidence of armed conflict, and also to provide
some minimum rules to regulate 'armed conflict not of an international character' of the Spanish
Civil War type, where the 'international' character of the conflict was indeterminate. They also
eventually gave rise to three categories of 'international crimes' in the context of grave
violations of human dignity perpetrated during armed conflict — crimes against the laws and
customs of war, crimes against peace, and crimes against humanity, with the victorious powers
of the second world war setting in motion international trials of major war criminals, at the end
of the war. This provided the normative thrust to the concept of an international criminal court.
The Second World War further necessitated a revision of the law that led to the adoption of the
four Geneva Convention in 1949, with the fourth convention specifically aimed at protection
of civilians during armed conflict.2 All the four conventions put together provide for humane
treatment of the sick and the wounded at war, prisoners of war, and civilians who fall in the
hands of a belligerent power during hostilities. To guard against the possibility of a party to
the conflict seeking to escape the obligations under these conventions by arguing that the
conflict at hand is not of an international character, the conventions also embody a common
Article 3 to cover armed conflicts 'not of an international character' for which certain minimum
rules of humane treatment of victims of the conflict are prescribed.

These rules are now recognised as the minimum threshold of IHL obligation.3

Very soon, the national liberation movements in Asia and Africa, and the Vietnam War
necessitated a further review of the 1949 conventions in 1974—1977 and in response the two
additional protocols took shape. Thus, from a set of just ten Articles in 1864, the Geneva law
has now expanded to some 600 Articles.

Nearly parallel to the development of the Geneva law was the so-called 'Hague law'. The Hague
law began its travails also contemporaneously with the germination of the Geneva law since
the second half of the nineteenth century. It began with the intent of avoiding unnecessary

2
The four Geneva Conventions Of 1949 are: l) the Geneva Convention for the Amelioration Of the condition Of
the Wounded and Sick in Armed Forces in the Field; II) The Geneva Convention for the Amelioration of the
Condition Of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea; III) The Geneva Convention
relative to the Treatment of Prisoners of War; and IV) The Geneva Convention relative to the Protection of
Civilian Persons in Time of War—all Of 12 August 1949.
3
Nicaragaua case, ICJ Report 1986, P. 14.

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suffering and superfluous injury by circumscribing the use of certain means and methods of
war, with a general indication of the rights and duties of belligerent powers. The 1899—1907
Hague regulations, and the various other conventions adopted by The Hague Peace
Conferences aimed, in a modest way, at these objectives. The greatest normative contribution
of The Hague law, however, is the principle embodied in the de Martens clause. The latest
restatement of this principle states:

In cases not covered by this Protocol or by other international agreements, civilians and
combatants remain under the protection and authority of the principles of international law
derived from established custom, from the principles of humanity and from the dictates of
public conscience.4

The de Martens clause remains a masterpiece of norm setting in international law. In its broad
sweep it takes into account the evil potentials of technologies of warfare-—past, present, and
future. It now provides a direct linkage between both the Geneva law and the Hague Law of
IHL Indeed, the 1977 protocols appear to have achieved a general integration of both the
Geneva law and The Hague law in several respects. On the basis of the development of Il-IL
culminating in the 1949 Geneva Protocols, the following fundamental principles of IHL can
be said to exist in modern international law:

1. The principle of 'elementary considerations of humanity'.


2. The principle of discrimination (i) between belligerents and neutrals; (ii) between
combatants and non-combatants-civilians, and (iii) between military objects and
civilian objects.
3. The principle of prohibition of weapons, means, and methods of warfare that cause
unnecessary suffering or superfluous injury
4. The principle of prohibition of methods or means of warfare that are likely to cause
widespread, long-term, and severe damage to the natural environment.
5. The principle of prohibition of study, development, acquisition, or adoption of any new
weapon, means, or method of warfare whose employment in war is prohibited by IHL
or some other rule of international law.

Since the Second World War, there has been another, more broad-based, development in
international norm-setting. This relates to the evolution of the international law of human

4
Article 1 (2) of 1977 Protocol I Additional to the Geneva Convention of 1949.

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rights. The War, and colonialism have taught us the importance of international concern for
human rights. As Jawaharlal Nehru proclaimed on the eve of India's independence,

We believe that peace and freedom are indivisible and the denial of freedom anywhere must
endanger freedom elsewhere and lead to conflict and War.5

5
Nehru’s Forigen Policy, New Delhi: Mosaic Book and India International Center (1998), P. 19-24.

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Meaning of international humanitarian law

International humanitarian law is a set of rules which seek, for humanitarian reasons, to limit
the effects of armed conflict. It protects persons who are not or are no longer participating in
the hostilities and restricts the means and methods of warfare. International humanitarian law
is also known as the law of war or the law of armed conflict.

International humanitarian law is part of international law, which is the body of rules governing
relations between States. International law is contained in agreements between States – treaties
or conventions, in customary rules, which consist of State practise considered by them as
legally binding, and in general principles.6

International humanitarian law applies to armed conflicts. It does not regulate whether a State
may actually use force; this is governed by an important, but distinct, part of international law
set out in the United Nations Charter.7

Where did international humanitarian law originate?

International humanitarian law is rooted in the rules of ancient civilizations and religions –
warfare has always been subject to certain principles and customs.

Universal codification of international humanitarian law began in the nineteenth century. Since
then, States have agreed to a series of practical rules, based on the bitter experience of modern
warfare. These rules strike a careful balance between humanitarian concerns and the military
requirements of States. As the international community has grown, an increasing number of
States have contributed to the development of those rules. International humanitarian law forms
today a universal body of law.8

A major part of international humanitarian law is contained in the four Geneva Conventions
of 1949. Nearly every State in the world has agreed to be bound by them. The Conventions
have been developed and supplemented by two further agreements: the Additional Protocols
of 1977 relating to the protection of victims of armed conflicts.9

6
https://www.icrc.org/en/doc/assets/files/other/what_is_ihl.pdf last Accessed on 22nd March 2019
7
Ibid.
8
https://blogs.icrc.org/ilot/2017/08/07/origins-international-humanitarian-law/ Last Accessed on 23rd March
2019
9
https://ijrcenter.org/international-humanitarian-law/ Last Accessed on 23rd March 2019

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Other agreements prohibit the use of certain weapons and military tactics and protect certain
categories of people and goods. These agreements include:

 The 1954 Convention for the Protection of Cultural Property in the Event of Armed
Conflict, plus its two protocols;
 The 1972 Biological Weapons Convention;
 The 1980 Conventional Weapons Convention and its five protocols;
 The 1993 Chemical Weapons Convention;
 The 1997 Ottawa Convention on anti-personnel mines;
 The 2000 Optional Protocol to the Convention on the Rights of the Child on the
involvement of children in armed conflict.

Many provisions of international humanitarian law are now accepted as customary law – that
is, as general rules by which all States are bound.

When does international humanitarian law apply?

International humanitarian law applies only to armed conflict; it does not cover internal
tensions or disturbances such as isolated acts of violence. The law applies only once a conflict
has begun, and then equally to all sides regardless of who started the fighting.

International humanitarian law distinguishes between international and non-international


armed conflict. International armed conflicts are those in which at least two States are involved.
They are subject to a wide range of rules, including those set out in the four Geneva
Conventions and Additional Protocol I.

Non-international armed conflicts are those restricted to the territory of a single State,
involving either regular armed forces fighting groups of armed dissidents, or armed groups
fighting each other. A more limited range of rules apply to internal armed conflicts and are laid
down in Article 3 common to the four Geneva Conventions as well as in Additional Protocol
II. It is important to differentiate between international humanitarian law and human rights law.
While some of their rules are similar, these two bodies of law have developed separately and
are contained in different treaties. In particular, human rights law – unlike international

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humanitarian law – applies in peacetime, and many of its provisions may be suspended during
an armed conflict.10

What does international humanitarian law cover?

International humanitarian law covers two areas:

 the protection of those who are not, or no longer, taking part in fighting;
 Restrictions on the means of warfare – in particular weapons – and the methods of
warfare, such as military tactics.

Is international humanitarian law actually complied with?

Sadly, there are countless examples of violation of international humanitarian law.


Increasingly, the victims of war are civilians. However, there are important cases where
international humanitarian law has made a difference in protecting civilians, prisoners, the sick
and the wounded, and in restricting the use of barbaric weapons.11

Given that this body of law applies during times of extreme violence, implementing the law
will always be a matter of great difficulty. That said, striving for effective compliance remains
as urgent as ever.

What should be done to implement the law?

Measures must be taken to ensure respect for international humanitarian law. States have an
obligation to teach its rules to their armed forces and the general public. They must prevent
violations or punish them if these nevertheless occur.

In particular, they must enact laws to punish the most serious violations of the Geneva
Conventions and Additional Protocols, which are regarded as war crimes. The States must also
pass laws protecting the Red Cross and Red Crescent Emblems.

Measures have also been taken at an international level: tribunals have been created to punish
acts committed in two recent conflicts (the former Yugoslavia and Rwanda). An international
criminal court, with the responsibility of repressing inter alia war crimes, was created by the
1998 Rome Statute.

10
https://www.icrc.org/en/doc/assets/files/other/icrc_002_0703.pdf Last Accessed on 24th March 2019
11
http://archive.ipu.org/PDF/publications/ihl-en.pdf Last Accessed on 24th March 2019

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Whether as individuals or through governments and various organizations, we can all make an
important contribution to compliance with international humanitarian law.12

12
https://humanrightsinitiative.org/old/index.php?option=com_content&view=article&id=57&Itemid=79 Last
Accessed on 25th March 2019

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Concept of human rights and humanitarian laws

Every human being acquires certain basic and inalienable rights by virtue of his/her being birth
as a human being, which are generally termed as human right. Thus, the term human rights
depicts the very nature of the right. All those rights, which are essential for the maintenance of
human dignity, may be called as human rights. They are necessary, as they are conductive to
physical, moral, social, and spiritual welfare of human being. Every human being possesses
these rights irrespective of his or her nationality, race, religion, sex etc. simply because he or
she is a human being. These rights are inherent in our nature and without them nobody can live
as a human being. Human rights are also termed as natural rights as they are not enacted rights
conferred by the government to its people. In modern times, scope of human rights has been
extended day by day with the mankind‘s increasing demand for a life in which the inherent
dignity & worth of each human being will receive respect & protection. Such rights must be
preserved, cherished and defended if peace and prosperity are to be achieved.13

It is said that rights and duties are necessarily co relative. Every right has a corresponding duty.
As human rights are acquired by each and every person as a consequence of his/her being birth
as a human being, every state as a guardian of its people has a basic duty to protect the human
rights of its people. Thus, human rights are exemptions from the operation of arbitrary power.
The need for the protection has arisen because of inevitable increase in the control over men‘s
action by the governments which by no means can be regarded as desirable. The consciousness
on the part of the human being as to their rights has also necessitated the protection of human
rights by the States. The human rights law put an obligation on the State to refrain from causing
any harm to its own nationals and other persons within its territorial jurisdiction. Under the
defence of sovereignty, States cannot treat its nationals as it pleases.14

Humanitarian laws on the other hand, mean those rules which intend to protect rights of the
people when an armed conflict is going on in an area. In other words, humanitarian laws
complement human rights laws during an armed conflict. As, during an armed conflict, rate of
violation of human rights increased to a high level, the international humanitarian law lays
down certain norms to be followed during an armed conflict so that sufferings of war can be
minimized. Such laws mandate firstly, for humanitarian treatment to the people affected by

13
https://www.icrc.org/en/war-and-law/ihl-other-legal-regmies/ihl-human-rights Last Accessed on 26th
March 2019
14
https://www.icrc.org/en/document/what-difference-between-ihl-and-human-rights-law Last Accessed on
26th March 2019

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armed conflict and secondly, for imposing restrictions on the use of weapons indiscriminately
to limit the sufferings of war. Thus, international humanitarian law attempts to limit the right
of parties to a conflict to use the method and means of warfare of their choice and protect
persons and property that are, or may be, affected by conflicts. In short, IHL is the jus in Bello,
or the law that regulates the conduct of armed conflict. It provides the maximum possible
protection of people in armed conflict through a balance between "military necessity", on one
hand, and "humanity" on the other. The essential purpose of rules is not to provide a ‘code’
governing game of war, but to reduce or limit the sufferings of individuals.15

15
Dr. Rakesh Kr. Singh, International Humanitarian Law and Protection of Terrorism, Journal of Constitutional
and Parliamentary Studies, Jan-June 2008, Vol.42 p.79-88

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Development of International Humanitarian Laws (IHL)

The root of IHL dates back to the rules of ancient civilization and religion, and premised on
the simple idea that some things are not permitted even in wartime. The Chinese Scholar Sun
Tzu, in the 5th century BC, asserted that in war it is important to treat captive well, and care
for them‖. One of India‘s epic poems, Ramayana, reveals that it was expressly forbidden to use
of mythical weapon that could obliterate an entire enemy nation even though (the enemy) was
fighting an unjust war with an unrighteous objective. In ancient Greece, awareness existed that
certain acts were contrary to traditional usages and principles spontaneously enforced by
human conscience, thus establishing the applicability of customary law to armed conflict. In
Homer‘s epic Odyssey, the use of poisoned weapons was considered to be a grave violation to
the way of the Gods. Roman law has developed the terms jus ad bellum (the law governing the
legality of the use of force) and jus in Bello (the law governing the conduct of hostilities), terms
that continue to be used in contemporary international law. Roman jus belli, or the law of war,
served as a function for legal developments until1800s. The process of codifying international
humanitarian law started in the middle of the 19th century, and developed tremendously
throughout the 20th century. Today, numerous conventions exist and large parts of
international humanitarian law are codified. The first attempt to bring together existing laws
and customs of war in a document, and to impose them on an army in battle, was the ‘Lieber
Code’ (1863). This was intended solely for Union Soldiers fighting in the American Civil War,
and as such did not have the status of a treaty. In the year of 1859, when French and Austrian
armies fought the battle of Solferino in northern Italy, the idea of international action to limit
the suffering of the sick and wounded in wars was born in the mind of Henri Dunant, a young
Swiss citizen. He published a book in 1862, in which he suggested that national societies should
be created to care for the sick & wounded irrespective of their race, nationality or religion. He
also proposed that States should make a treaty recognizing the work of these organizations and
guaranteeing better treatment for the wounded. With his four friends he set up the International
Committee for Aid to the Wounded (latter on renamed as International Committee of the Red
Cross). His idea met a wide response and several countries had established national societies.
In 1864, a diplomatic conference was held in Geneva whereby the delegates of 16 European
nations adopted the Geneva Convention, a set of ten articles. The full name of the Convention
was the Convention for the Amelioration of the Wounded in Time of War and the purpose of
the Convention is to limit the suffering caused by war by protecting and assisting as far as
possible the wounded and sick military personnel. More precisely, this Convention laid the

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three fundamental principles of contemporary IHL namely the principle of humane treatment
(i.e. the victims of war who are in the situation of hors de combat must be collected and care
for), the principle of care without discrimination to the wounded and sick, and the principle of
respect for and marking of medical personnel, transports and equipment’s using an emblem
(red Cross on a white background) 13. In Islamic countries the emblem is a red crescent on a
white field was introduced in the 1870. The Convention formally laid the foundation of
international humanitarian law. Another milestone in the development of the IHL was the
Hague Conferences of 1899 and 1907. Many Conventions were adopted at these Conferences
which provided for the regulation of conduct of hostilities. Convention IV together with the
Regulations in annex, was of particular importance because it contained the law and customs
of war on land. This Convention was in particular declaratory of customary law of warfare.
The purpose of this Convention was not only to regulate the conduct of hostilities and thus to
limit the means of causing injury to enemy, but also to 1899 and 1907. Many Conventions were
adopted at these Conferences which provided for the regulation of conduct of hostilities.
Convention IV together with the Regulations in annex, was of particular importance because it
contained the law and customs of war on land. This Convention was in particular declaratory
of customary law of warfare. The purpose of this Convention was not only to regulate the
conduct of hostilities and thus to limit the means of causing injury to enemy, but also to use of
gases were also violated. The result is that, the rules made by the Hague Conventions which
laid down the foundations of the law of war were sapped because of the instances of their non-
observance16. In the middle part of 20th century shocking crimes were committed against the
humanity during the Second World War. The tragic experience gained by the international
community during this conflict compelled to think for improvement of the legal protection of
war victims, in particular of civilians in the power of the enemy. Thus, steps have been adopted
for extension and codification of the existing provisions in an International Red Cross
Conference in Stockholm held on August 23 to 30, 1948. The Conference developed four
Conventions which were approved in Geneva on August 1949.16 The Conventions were:

1. Convention for the Amelioration of the wounded and sick members of armed forces in the
field (Geneva Convention I).

16
https://www.researchgate.net/publication/292145433_Origin_and_Development_of_IHL Last Accessed on
27th March 2019

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2. Convention for Amelioration of the condition of the wounded, sick and shipwrecked
members of armed forced at sea (Geneva Convention II).

3. Convention on the treatment of prisoners of war (Geneva Convention III).

4. Convention: on the protection of civilian persons in time of war (Geneva Convention IV).

The provisions of all these Conventions were inspired by respect for human personality and
dignity. Together they establish the principles of disinterested aid to all victims of war without
discrimination-to all those who, whether through wounds, capture or shipwreck, are no longer
enemies but merely suffering and defenceless human beings17‖. The Conventions provide a
number of humanitarian rules to various classes of persons such as the wounded and sick in
armed forces in the field as well as at sea, prisoners of war and civilian persons in time of war.
They also imposed corresponding duties upon the protecting power, the ICRC and other
humanitarian organizations With the exception of one article- Article 3 – common to all four
conventions, the provisions of four Geneva Conventions are applied to international armed
conflicts. Common Article 3 which is applicable in non-international armed conflict situations
expressly prohibits certain acts at any time and at any place, namely-

(1) Violence to life and person,

(2) Taking of hostage,

(3) Outrages upon personal dignity, in particular humiliating and degrading treatment,

(4) The passing of sentences and carrying out of executions without previous judgements
pronounced by a regularly constituted court. These obligations are binding to all the parties to
the conflict i.e. the State as well as the non-state actors. Further, this Article also mandates the
ICRC and such other humanitarian agencies to provide service to the victims of war and also
to take steps to strengthen respect for IHL. However, in the subsequent years, with emergence
of new forms of armed conflict, often sharp and violent, but localized and involving limited
numbers of troops and other combatants, called for further action to control the horror of such
conflicts. Thus, a Diplomatic Conference on the Reaffirmation and Development of
International Humanitarian Law applicable to armed conflict, was held in Geneva from 1974
to 1977, whereby two Additional Protocols to the 1949 Conventions were adopted. Protocol I
deals with the protection of victims of international armed conflicts. Protocol II concerns the
victims of internal armed conflicts, including those between the armed forces of a government
and dissidents or other organized groups which control part of its territory, but does not deal

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with internal disturbances and tensions in the form of riots, or other isolated and sporadic acts
of violence. The Diplomatic Conference also recommended that a special conference be called
on the question of prohibiting on humanitarian grounds the use of specific conventional
weapons. Thus, in the event of a non-international conflict, Article 3 common to four
Conventions and Protocol II are applicable. Article 1 of the Additional Protocol II inter alia
says that this Protocol supplements Article 3 to the Geneva Conventions of 1949 without
modifying its existing condition of application. Under the Protocol, humanitarian law is
intended for the armed forces, whether regular or not, taking part in conflict, and protect every
individual or category of individuals not or no longer actively involved in the hostilities. Its
conditions of application are stricter than those provided for Article 3 and cover the following:

(1) Fundamental guarantees for human treatment (similar to common Article 3 but more
detailed.)

(2) Special protection for children in the fields of education, recruitment, reunification, and
safe areas.

(3) Minimum standards for people deprived of their liberty.

(4) Protection of the civilian population and civilian subjects.

(5) Relief action subject to the consent of the state (similar to the Common Article 3)

The rules of customary international humanitarian laws, also fill some important gaps in the
regulation of non-international armed conflicts. Many of the provisions of Additional Protocol
II are now considered to be part of customary international law, and thus, binding on all parties
to non-international armed conflicts. These rules include the prohibition of attacks on civilians,
the obligation to respect and protect medical and religious personnel, medical units and
transports, the prohibition of starvation, the prohibition of attacks on objects indispensable to
the survival of the civilian population, the obligation to respect the fundamental guarantees of
persons who are not taking a direct part, or who have ceased to take a direct part, in hostilities,
the obligation to search for and respect and protect the wounded, sick and shipwrecked, the
obligation to search for and collect the dead, the obligation to protect persons deprived of their
liberty, the prohibition of the forced movement of civilians, and specific protections for women
and children18. Customary IHL also goes beyond the rudimentary provisions of common
Article 3 and Additional Protocol II. Practice has created a substantial number of additional
customary rules relating to the conduct of hostilities (e.g. the distinction between civilian

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objects and military objectives, the prohibition of indiscriminate attacks and attacks in violation
of the principle of proportionality); rules on specifically protected persons and objects(e.g.
humanitarian relief personnel and objects, journalists, and protected zones) and rules on
specific methods of warfare (e.g. prohibition of denial of quarter and perfidy)19. Such
principles though do not take precedence over the law in force, nor do replace them, considered
to be guiding principles and as they make the law easier to understand. The establishment of
the International Criminal Court, a permanent international court, by adopting Rome Statute of
1998 is one of the major achievement of the international community towards the development
of humanitarian laws. The Court has been established with the objective of putting an end to
impunity for the perpetrators of serious international crimes and vindicating state obligations
to exercise its criminal jurisdiction over those responsible for international crimes. The Court
is the first international court which has jurisdiction over war crimes, crimes against humanity,
genocide and aggression. The Statute criminalizes violation of Common Article 3 to the
Geneva Conventions as war crimes. It would not prosecute states as abstract entities, but
individuals who have committed the alleged crimes. Immunity pleas based on official position
will not be allowed in proceedings before the Court. Moreover, the Court besides prosecuting
head of states or others with powerful political contacts, the ICC may also prosecute members
of armed forces and paramilitary groups for acts committed by subordinates and individuals
committing crimes in their private capacities pursuant to organizational policy. Another
advancement of the Court is that it works on the principle of complementarities, i.e. the primary
responsibility for prosecution lies with the States and the Court would act only in situations
where the state is either unwilling or unable to prosecute the offender. Establishment of ICC at
Hague has fulfilled the gap of prosecution of the perpetrators of crimes under the international
law. So long, norms are laid down for the protections of human rights have been violated, very
often, with impunity. The ICC brings an end to this impunity concept by prosecuting and brings
to justice individuals who commit the most serious violations of international humanitarian
laws.17

17
https://www.humanrights.ch/en/standards/international-humanitarian-law/history/ Last Accessed on 28th
March 2019

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International Humanitarian Law

India’s Attitude

States continue to be the dominant players in the global system, but the norms that govern their
actions no longer wholly reflect the precepts of power. International humanitarian law (IHL)
is a bundle of such norms. Their observance by states, however, is not as wide and clear as
their recognition.18 This essay seeks to record briefly India's attitude towards IHL. This is
gleaned from India's participation in the drafting of the 1948 Genocide Convention, the 1977
Protocols Additional to the Geneva Conventions, and the adoption of the Statute of the
International Criminal Court. The essay also refers to the 1949 Geneva Conventions, the 1960
Geneva Conventions Act, and the 1970 decision of the Supreme Court to see continuity and
change in India's attitude towards IHL.19

INDIA AND THE MAJOR IHL CONVENTIONS

Genocide Convention, 1948

India adhered to a 1945 agreement signed by France, the former Soviet Union, and the United
Kingdom, establishing a tribunal for the trial of war criminals and a charter defining the
tribunal's jurisdiction and functions. The tribunal pronounced its jurisdiction on Germany's
violation of several treaties and convicted the offenders of the crime of planning and waging
war. It, however, could not find jurisdiction over crimes against humanity, as it could not be
established that the acts complained of were 'in execution of, or in connection with', the war.
The shortcomings of the Nuremberg trial provided the necessary background to the adoption
of a convention on the Prevention and Punishment of the Crime of Genocide by the United
Nations General Assembly in 1948.

India, along with Cuba and Panama, Sponsored a resolution on genocide at second part of the
first session of the General Assembly at Lake Success. It was adopted as resolution 96 (I) of
11 December 1946. It was affirmed the Genocide was a crime under international law and
requested the United National Economic and Social council to undertake necessary studies with

18
V.S. Mani, The Fifth Afghan war and International Law’, Economic and Political Weekly, Vol. 37, no. 4, 2002,
pp. 294-298
19
An Indo- Asian Perspective’, International Review of the Red cross, Vol. 83, no. 841,2001, pp. 56-76

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a view to drawing up a draft convention. India was 'generally prepared to accept it in spite of
its various shortcomings, for it was a useful step towards the final goal’.20

India pointed out that the draft convention defined genocide in terms of ‘acts committed with
intent to destroy, in whole or in part, a national, ethical, racial, or religious group, as such’.21
According to India, intent was 'closely linked to the act, but whatever the intent, the result must
be the total, or partial destruction of the group. It could not be asserted, however, that the group,
as such, would be annihilated by the destruction of its religious edifices, schools or libraries’.22
While submitting that its constitution 'contained adequate provisions for safeguarding the
language, religion, and culture of any minority group', India added that 'the protection of the
cultural rights of groups should be assured by the declaration of human rights, which would
shortly come before the General Assembly.23

India supported a USSR amendment for deletion from Article VI of the draft convention the
reference to a penal tribunal. According to India, 'before the tribunal could begin to function, a
host of complicated problems, such as jurisdictional conflicts between the national courts and
the international tribunal, would have to be solved and a detailed convention drafted'.24 India
‘feared that such a provision might make it possible to bring before the International Court of
Justice unsubstantiated or insufficiently substantiated cases under the pretext that a state had
failed to carry out its obligations under the convention and that it was responsible for some act
of genocide committed in its territory’.25

While 20 states had signed the Genocide Convention on 11 December 1948,26 India signed it
on 29 November 1949. It was not surprising that India made the following declaration while
ratifying the Convention on 27 August 1959:

20
Reports of the Economic and Social Council and of the Sixth Committee', UN Doc. A/760/Corr.2, 3rd Session,
178th Plenary Meeting, pp. 826.
21
Ibid., p. 826.
22
Ibid., p. 815.
23
Ibid., p. 827.
24
Ibid., p. 827
25
Ibid., p. 828
26
Australia, Bolivia, Brazil, Chile, Dominican Republic, Ecuador, Egypt, Ethiopia, France, Haiti, Liberia, Norway,
Pakistan, Panama, Paraguay, Peru, Philippines, the United States, Uruguay, and Yugoslavia.

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With reference to Article IX of the Convention, the Government of India declares that, for the
submission of any dispute in terms of this article to the jurisdiction of the International Court
of Justice, the consent of all the parties to the dispute is required in each case.27

It might indeed have been expedient, nonetheless somewhat ironical, for a country to have
made such a reservation, once it supported the agreement which established a tribunal for the
trial of war criminals. It is not submitted that such a reservation would necessarily be
incompatible with the object and purpose of the Genocide Convention,28 it however tends to
dilute the universality29 of response of the international community to the crime of genocide.
It has been held that ‘since the Genocide Convention does not specifically refer to reparation,
the parties to it did not undertake to have accepted the court compulsory jurisdiction in this
question’. India's attitude is further elaborated by its policy and participation in the drafting and
adoption of the Statute of the International Criminal Court (ICC).30

GENEVA CONVENTIONS, 1949

Despite initial hiccups in the deliberations of the International Law Commission for revision,
clarification, and codification of the law of war, since the UN Charter proscribed war, a
Diplomatic Conference for the Establishment of International Conventions for the Protection
of Victims of War was convened by the Swiss Federal council in Geneva from 21 April to 12
August 1949. India was one of the sixty-three states which signed the Final Act, incorporating
the Convention for the Amelioration of the condition of the Wounded and Sick in Armed
Forces in the Field; the Convention for the Amelioration of the Condition of the wounded; Sick
and Shipwrecked Members of Armed forces at sea; The convention Relative to the Treatment
of Prisoners of War; and the Convention Relative to the Protection of civilian person at time
of war. In short, the Conventions reiterate that certain humanitarian rules must be observed,
even with regard to the enemy. They are founded on the idea of respect for the individual and
her/his dignity. They underline that persons not directly taking part in hostilities and those

27
Article IX of the Convention states: 'Disputes between the contracting parties relating to the interpretation,
application, or fulfilment of the present Convention, including those relating to the responsibility Of a State for
genocide, or for any of the other acts enumerated in article Ill, Shall be submitted to the International court of
justice at the request of any of the parties to dispute’. Adan Roberts and Richard Guelf (eds), Documents on
the Law of war, oxford, 1989 pp. 159-60
28
V.S Mani, ‘The International Court of justice and Humanitarian Law of Armed Conflicts’, Indian Journal of
International Law, Vol. 39, 1999, PP. 32- 46.
29
Yogesh Tayagi, ‘The Conflict of Law and policy on Reservation to human rights Treaties’, British Yerarbook of
International Law, Vol. LXXI, 2000, p. 205.
30
Infra section on statue of ICC

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rendered sick, injured, and made prisoners must be respected and protected, and those who
suffer must be aided, and cared for without discrimination.31

GENEVA CONVENTIONS ACT, 1960

Having ratified the Geneva Convention on 16 October 1950, it took rather long for India to
transpose them into its domestic law. The preamble to the Act stated that it was to 'enable effect
to be given to certain international conventions at Geneva on the twelfth day of August, 1949,
to which India is a party and for purposes connected therewith’32 According to the Statement
of Object and Reasons,33 the matters which required to be implemented by the legislation were:
punishment of 'grave breaches' referred to in Article 50 of the First Convention and equivalent
articles of the succeeding conventions; conferment of jurisdiction on Indian courts to try
offences under these conventions, even when committed by foreigners outside India; extension
of the protection given under the existing law to the Red Cross and Geneva Cross, to two new
emblems, namely, the Red Crescent and the Red Lion and Sun; and procedural matters relating
to legal representation, appeal, etc. However, the Act contained a provision which stated:

No court shall take cognizance of any offence under this Act except on complaint by the
Government or of such officer of the Government as the Central Government may by
notification specify.34

Thus, unlike this provision, it is significant to note that the Zimbabwean Geneva Conventions
Act of 1981 permits a private prosecution for an offence under the common law.35 After
analysing various provisions of the Act, one author has concluded, 'it appears as if the
legislation was drafted and passed in a hasty manner. The law is sketchy and skeletal... ‘36 This
point was noted by the supreme court which we now turn to.

DECISION OF THE SUPREME COURT 197037

This was the first, and perhaps the only, case in which the Geneva Conventions Act was
submitted to the Scrutiny of the highest court of the land. The appellant argued that he was

31
On IHL Jean Pictet, The Principle of International Humanitarian Law, Geneva: ICR, 1966
32
AIR (1960) 142 Para. 2770. Compare Preamble to the UK Geneva Convention Act, 1957.
33
Gazette of India, Extraordinary, 160, Part 1, Section 2, at P. 1098.
34
Section 17 of the Act, Compare the UK Geneva Convention Act, 1957.
35
M. K. Balachandran, 'National for the Implementation of Il-ll.—nie Geneva Conventions Act, A Stud", in M. K.
Balachandran and Rose Varghese (eds), Introduction to International Humanitarian law, New Delhi. ICRC, 1997,
p. 366
36
Ibid., P.372
37
Rev. Mans. Sebastiano Francisco Xavier dos Remedios Monteiro v. State of Goa. AIR SC 1970, 329-337.

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protected by the Geneva Conventions Act, 1960.38 The question that arose before the court was
whether Articles 47 and 49 of the Geneva Convention Relative to the Protection of Civilian
Persons in Time of War applied to the facts of the case.39 Rejecting the argument of the
appellant, the court reasoned:

Act by itself does not give any special remedy. It does give indirect protection by providing for
breaches of convention. The conventions are not made enforceable by Government against
itself nor does the Act give a cause of action to any party for the enforcement of conventions.
Thus, there is only an obligation undertaken by the Government of India to respect the
conventions regarding the treatment of civilian population, but there is no right created in
favour of protected persons which the court has been asked to enforce.

A country which so respects the conventions cannot convince the protected persons that their
rights are enforceable.40’Respect for international law and treaty obligations' is what the Indian
state is enjoined by the constitution.41 The act of ratification of a treaty may evidence respect
for international law, inasmuch as treaties are part of international law, but the fact of keeping
in force an ineffective legislation is nothing but a failure to respect the treaty obligations,
together with the constitution.

STATUTE OF THE INTERNATIONAL CRIMINAL COURT, 1998

According to India, the ICC should be based on the principles of complementarity, state
sovereignty, and non-intervention in internal affairs of states. According to India, the 'ICC can
step in only when a national judicial system is non-existent or unable to deal with particular
crimes covered by the Statute.42 India considered it 'inappropriate' to vest Competence and
authority to initiate the jurisdiction of ICC in the hands of an individual prosecutor, 'who can
initiate investigations suo moto, and thus the jurisdiction of the court'.43 India was also opposed
to any pre-eminent role for the UN Security Council in relation to the ICC. It wanted that the
crimes should be defined precisely in the ICC Statute. Later, explaining its vote on the adoption
of the Statute of the ICC, the representative of India stated:

38
Article 12 of the Geneva Convention
39
Ibid., pp. 329-330
40
Reponse to proposal by Venezula and Pakistan. n., at pp. 815 The Hindu (New Delhi), 31 May 2002, at p.10.
41
Article 51 of the constitution of India.
42
http://www.un.org/icc/index.htm last accessed on 28th March 2019
43
Ibid.

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Instead of legislating for the exception. The scope of the Statute has been broadened so much
that it could be misused for political purposes or through misplaced zeal, to address situations
and cases for which the ICC was not intended, and where, as a matter of principle, it should
not intrude. What the zealots have achieved, therefore, is a contradiction in terms: a court
framed with Armageddon in mind is set in Utopia."

Later, India complained that the Statute failed to mention international terrorism in the crimes
covered.44 It also wanted specific reference to the use of nuclear weapons, land mines, and
blinding lasers as war crimes. But, no such specific references were included.

Some of the more recent happenings in the world that attract application of IHL, and the
international response to them, both within the United Nations and outside, testify to India's
attitude towards IHL. It is true, as India has pointed out, that when a permanent member of the
Security Council has not accepted the jurisdiction of the court how can the council ask another
non-party to the Statute to submit to the jurisdiction of the court? It is a valid viewpoint but the
power of the Security Council and the obligations of its permanent members flow pre-
eminently not from the Statute of ICC, but from the Charter of the United Nations.45 All that
may be argued is that permanent members should not be allowed to move a resolution in the
Security Council for submission of a matter to the jurisdiction of ICC, or to veto the one moved
for submission of a situation to its jurisdiction.

Originated in the aspirations of a colonial country, India's attitude towards IHL evolved in light
of the concerns of a newly independent country in an ideologically divided world. While India's
respect for the principles of IHL has been next to none, its record of their observance has
nevertheless invited criticism. It has long implemented the Geneva Conventions as part of its
domestic law.46 However, inadequacies of the Act to deal with specific situations have been
noted by the Indian judiciary. If there is a need for India to bring its laws in line with
'constitutional contours of the Indian polity, equally urgent is a review of its approach to the
present IHL.47 Consequences of a non-party status to the Statute of ICC are neither the same
for all non-parties, nor can be countervailed by cooperation with a non-party permanent
member of the Security Council in the 'global' fight against terrorism.

44
http://www.indianembassy.org.policy/ICC/ICC_UN_Statment.html Last Accessed on 28th March 2019
45
Ravindra Pratap, ‘Nuclear Arms Control Treaties and Non-Parties’, IJIL, vol.39, 1999, pp. 626-676
46
The Geneva Convention Act, 1960.
47
Justice V.R. Krishna Iyer, ‘Pak terrorism and Indian Pacifism’, The Hindu, 17May 2002, p. 12.

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India Has long recognized and has never questioned the link between IHL and human right
law. Rather, when it found that IHL principle would not be readily applicable to a given
situation, it accepted the applicability of the human right law. It is this link which has in recent
time comes to questioning India’s record, and serves to measure both the present scope of IHL
and India’s attitude towards it.48 Thus, it is no longer possible for India not to effect changes in
its domestic law necessary to comply with its obligation under the Genocide Convention and
yet claim a good faith observance of the ingrained in it.

48
Balakrishnan Rajagopal, ‘Gujrat: A plea and A Proposal’, The Hindu, 27 March 2002,

28 | P a g e
Conclusion

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BIBLIOGRAPHY

Primary Sources

 Book referred

The following textbooks have been referred

1. Mani V.S Handbook of International Humanitarian Law in South Asia (Oxford


university press) 3rd Edition 2014
2. Naorem Sanajaoba A Manual of International Humanitarian Laws” (Oxford university
press) 3rd Edition 2004
3. Balachandran &.Rose Verghese, Introduction to International Humanitarian Law,
ICRC New Delh, Sanajaob;(2004)
4. V.N.Shukla, “Constitution of India”, Eastern Book Company, 2004.
5. Alam, Aftab, Human Rights in India: Issues and Challenges (Delhi: Raj Publication,
2000
6. Dunne T. and Wheeler, N.J. (eds.): Human rights in global politics, (Cambridge:
Cambridge University Press, 2014)

Secondary Sources

 Journal /Article referred


1. Dr. Rakesh Kr. Singh, International Humanitarian Law and Protection of
Terrorism, Journal of Constitutional and Parliamentary Studies, Jan-June 2008,
Vol.42 p.79-88
2. V.S. Mani, The Fifth Afghan war and International Law’, Economic and
Political Weekly, Vol. 37, no. 4, 2002, pp. 294-298
3. Yogesh Tayagi, ‘The Conflict of Law and policy on Reservation to human rights
Treaties’, British Yerarbook of International Law, Vol. LXXI, 2000, p. 205
4. Seema P.S., “Incorporation of International Human Rights Documents into
Indian Law- Response of the Supreme Court”, CULR, 2006
 Reports Referred
1. Reports of the Economic and Social Council and of the Sixth Committee', UN
Doc. A/760/Corr.2, 3rd Session, 178th Plenary Meeting, pp. 826.
2. Gazette of India, Extraordinary, 160, Part 1, Section 2, at P. 1098

30 | P a g e
3. Reponses to proposal by Venezula and Pakistan. n., at pp. 815 The Hindu (New
Delhi), 31 May 2002, at p.10.
4. Balakrishnan Rajagopal, ‘Gujrat: A plea and A Proposal’,The Hindu, 27 March
2002.
 Website referred
1. http://avalon.law.yale.edu
2. http://en.wikipedia.org
3. http://indiankanoon.org
4. www.icj-cij.org
5. http://www.icc-cpi.int

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