Author: Amitabh Robin Singh, Research Associate
International humanitarian law can be defined as 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 ((What is International Humanitarian Law?, ICRC (July 21, 2013, 11:26 PM), http://www.icrc.org/eng/assets/files/other/what_is_ihl.pdf)).
The earliest form of International Humanitarian Law can be found in our mythological epic the Mahabharat where Krishna laid down the rules of war before the eighteen day long engagement at Kurukshetra. A few of the rules are as follows ((Mohit Jain, Narrative structure of three Mahabharata stories, (July 21, 2013, 11:47 PM), http://intranet.daiict.ac.in/~ganesh_devy/stories/200501088%20Mohit_Jain.pdf)):
- The day’s battle was to end strictly at sunset. After sunset the two armies were allowed moments of camaraderie and were not to attack each other or indulge in any military engagements.
- A horseman can only attack another horseman, not the one on elephant or on foot. Similarly, elephant troops, charioteers, etc. could only fight with their respective opposite ranks in the enemy army. Those who either left the field or surrender were not attacked.
- To kill someone who was without arms, who was without armour, who was withdrawing or whose attention was somewhere else, was against the rules of war.
- Single combats must only be between equals, and must be in accordance with dharma. One should not attack his enemy, when the enemy is engaged in single combat with another warrior.
- Those who were involved in playing musical instruments or cheering the warriors should not be killed, i.e. no one attacked the non-battler.
Unfortunately even this earliest form of international humanitarian law in the war between the states of Hastinapura and Indraprastha proved to be futile. Most of the canons listed above were violated by the combatants during the war.
Arjun’s son Abhimanyu was killed alone by seven of the most powerful warriors, violating the single combat rule ((Mahabharata Book VII Drona Parva, Sacred-texts (July 21, 2013, 11:55 PM) http://www.sacred-texts.com/hin/m07/m07046.htm)). Karna was killed by Arjun on Krishna’s goading when he was trying to remove his chariots wheel from the marshy land that it had got stuck in ((Mahabharata Book X Karna-Badh, Sacred-texts (July 22, 2013, 2:20 PM), http://www.sacred-texts.com/hin/dutt/maha10.htm)). The great Kuru general Devvrat (also known as Bhishma Pitamah) was killed by Arjun while he used the body of Shikhandi (a eunuch) as his shield, seeing that Devvrat would never attack a non-warrior, especially a eunuch ((Mahabharata Book VI, Bhishma Parva, Sacred-texts (July 23, 2013, 12:15 AM), http://www.sacred-texts.com/hin/m06/m06120.htm )).
So as we can see warriors have been in contempt of International Humanitarian Law since the age of the great Indian epics.
The modern rules of warfare are actually rather similar to those laid down in the B.C. period. Some of them are as follows ((de Preux, Basic rules of the Geneva Conventions and their Additional Protocols, 1 (2nd Ed 1988).)):
- Persons hors de combat (outside of combat), and those not taking part in hostilities, shall be protected and treated humanely.
- It is forbidden to kill or injure an enemy who surrenders, or who is hors de combat.
- The wounded and the sick shall be cared for and protected by the party to the conflict which has them in its power. The emblem of the “Red Cross,” or of the “Red Crescent,” shall be required to be respected as the sign of protection.
- Captured combatants and civilians must be protected against acts of violence and reprisals. They shall have the right to correspond with their families and to receive relief.
- No-one shall be subjected to torture, corporal punishment, or cruel or degrading treatment.
- Parties to a conflict, and members of their armed forces, do not have an unlimited choice of methods and means of warfare.
- Parties to a conflict shall at all times distinguish between the civilian population and combatants. Attacks shall be directed solely against military objectives.
Islam also has its own conceptions of the rules of war which are strikingly similar to the ancient and modern rules enunciated above. Here the author would like to list a few of the rules to highlight the point that International Humanitarian Law is not susceptible to religion or time period. Hence a few of the Islamic rules of war are ((Sheikh Al-Zuhili, Islam and International Law, ICRC, (July 25, 2013, 1:13 PM), http://www.icrc.org/eng/assets/files/other/irrc_858_zuhili.pdf)):
- A non-combatant who is not taking part in warfare, either by action, opinion, planning or supplies, must not be attacked;
- The destruction of property is prohibited, except when it is a military necessity to do so, for example for the army to penetrate barricades, or when that property makes a direct contribution to war, such as castles and fortresses;
- Principles of humanity and virtue should be respected during and after war;
- It is permitted to guarantee public or private safety on the battlefield, to prevent as far as possible the continuation of warfare.
Carolyn Evans, senior lecture at the University of Melbourne is of the opinion that religion has a large role to play in the compliance of International Humanitarian Law. She opines that religion often treats treaties (like the Geneva Conventions) as sacred obligations ((Carolyn Evans, The Double-Edged Sword: Religious Influences on International Humanitarian Law, Melbourne Journal of International Law (July 23, 2013, 1:30 AM), http://www.austlii.edu.au/au/journals/MelbJIL/2005/1.html)). To support this contention, she cites a few examples from antiquity.
Now we shall have a look into the more modern form of modern International Humanitarian Law. Modern International Humanitarian Law can be divided into two sub-categories, one known as “Hague Law” which covers the regulation of arms and weapons and the selection of military targets, and “Geneva Law” which contemplates the treatment of non-combatants such as civilians and aid workers along with former combatants who are no longer part of the engagement such as prisoners of war and detainees ((Joan Policastri, Sergio D. Stone, International Humanitarian Law. American Society of International Law Electronic Resource Guide (July 23, 2013, 1:00 AM), http://www.asil.org/erg/?page=ihuml)).
It can also be said that International Law rules created to protect the human rights of individuals against state interference may be called a largely post-1945 phenomenon ((D.J, Harris, Cases and materials on International Law, 654 (6th ed. 2004).)). The United Nations Charter attempted to codify human rights law through Article 55 and 56. Then there is the Universal Declaration of Human Rights which declares all people to be born free and that no person shall be subjected to cruel or inhuman punishment ((Universal Declaration of Human Rights, Art.1, 5)).
However, before the Geneva Conventions laid down the present International Humanitarian Law in recent centuries, we had the “father of international law” Hugo Grotius who laid down standards for armed conflicts in De Jure Belli at Pacis (On the Law of War and Peace). Other prominent pre-Geneva convention European thinkers were Emmerich de Vattel in his Le Droit Le Gens and Alberto Gentili in his work De Jure Belli ((Policastri and Stone, Supra note 8 at 3)). The contemporary law of war began its development with Henry Dunant, best known as founder of the International Red Cross ((C. Moorehead, Dunant’s Dream, (1998).)). The codifications of the laws of war materialised at the Hague Conferences in 1899 and 1907 ((The Centennial of the First International Peace Conference (ed. F. Kalshoven), The Hague, 2000)). The conventions adopted then are still visible as the basis for the laws of today.
Now coming briefly to the Geneva conventions of which a few fundamental rules have been mentioned above during the comparative study, the First Geneva Convention deals primarily with the wounded and sick on land and says that members of armed forces and organised militias “shall be respected and protected at all costs ((Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949, (July 25, 2013, 8:09 PM), http://www.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp?documentId=4825657B0C7E6BF0C12563CD002D6B0B&action=openDocument)).”
The Second Geneva convention is very similar to the first one except that it deals with the sick shipwrecked member of armed forces at sea ((Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Geneva, 12 August 1949, (July 25, 2013, 8:22 PM), http://www.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp?documentId=2F5AA9B07AB61934C12563CD002D6B25&action=openDocument)).
The Third Convention concerns Prisoners of War and lays down a comprehensive code for the humane treatment of prisoners and also establishes an elaborate definition for the term “prisoner” in Article 4. It also enunciates who is a “combatant” in an armed conflict. This definition covers members of the armed forces, members of volunteer services, including those of organised resistance provided they fulfil the following four conditions:
(a) Being commanded by a person responsible for his subordinates
(b) Having a fixed distinctive sign recognisable at a distance;
(c) Carrying arms openly;
(d) Conducting operations in accordance with the laws and customs of war ((Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949, (July 25, 2013, 8:30 PM), http://www.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp?documentId=77CB9983BE01D004C12563CD002D6B3E&action=openDocument)).
Hence, upon a reading of this convention, if the resistance group itself is not following the laws of war and conducting acts like killing of civilians, then it cannot avail the protection of the Third Geneva Convention.
The Fourth Convention takes upon the task of codifying the laws for the protection of civilians during wartime. It is invoked as soon as the war or occupation starts and rests at the general close of military operations ((Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949, (July 25, 2013, 8:35 PM), http://www.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp?documentId=AE2D398352C5B028C12563CD002D6B5C&action=openDocument)).
Since the Geneva conventions, one of the main deterrents to war crimes and one of the reasons that International Humanitarian Law is followed is due to the principle of reciprocity ((Evans, Supra note 7 at 3 )). This could be illustrated by the fact that armies tend to no longer hold cities to siege as they used to as late as in the American civil war (1861-1865) ((Kennedy Hickman, American Civil War: Siege of Vicksburg, (July 25, 2013, 10:45 PM), http://militaryhistory.about.com/od/CivilWarWest1863/p/American-Civil-War-Siege-Of-Vicksburg.htm))and this was occurring in a country as advanced and civilised as America. Such tactics are not used despite the fact that they may and probably will lead to significant tactical and military gains, because nobody wants their own citizens starved and shelled, hence states refrain from doing so under an assumption of reciprocity. Also having to build large detainee and prison camps is much more expensive and time consuming than simply shooting any prisoners of war. However once again we can see that this is not done because a state does not want its soldiers to suffer a similar fate and umberrima fide believes that the opposing state will reciprocate this adherence to the rules of war.
Therefore in conclusion, the author would like to submit that International Humanitarian Law is truly an International form of law as it has been customarily adhered to in many parts of the world even before the signing of the Geneva Conventions. It is also a universal and ageless discipline of law seeing that is has effectively been in use since times immemorial.