CHAPTER -1

INTRODUCTION

1.1 General

International humanitarian law forms a major part of public

international law and comprises the rules which, in time of armed conflict,
seek to protect people who are not or are no longer taking part in the
hostilities, and to restrict the methods and means of warfare employed. More
precisely, what the ICRC means by international humanitarian law
applicable in armed conflicts is international treaty or customary rules which
are specially intended to resolve matters of humanitarian concern arising
directly from armed conflicts, whether of an international or non-
international nature; for humanitarian reasons those rules restrict the right
of the parties to a conflict to use the methods and means of warfare of then-
choice, and protect people and property affected or liable to be affected by
the conflict.

International humanitarian law and international human right law are

complementary. Both strive to protect the lives, health and dignity of
individuals, albeit from different angles. Humanitarian law applies in
situations of armed conflict, whereas human rights, or at least some of them,
protect the individual at all times, in war and peace alike. However, some
human right treaties permit governments to derogate from certain rights in
situations of public emergency. No derogations are permitted by
international community under IHL because it was conceived for emergency
situations, namely during armed conflict. Humanitarian law is to protect
people who do not or are no longer taking part in hostilities. The rules
embodied in IHL impose duties on all parties to a conflict. Human rights,
being tailored primarily for peacetime, apply to every human being. Their
principal goal is to protect individuals from arbitrary behavior by their own
governments. Human rights law thus does not deal with the conduct of
hostilities.

The parties to a conflict must at all times distinguish between the

civilian population and combatants in order to spare the civilian population
and civilian property. Neither the civilian population as whole nor individual
civilians may be attacked. Attacks may be made solely against military
objectives. People who do not or can no longer take part in hostilities are
entitled to respect for their lives and for their physical and mental integrity.
Such people must in all circumstances be protected and treated with
humanity, without any unfavorable distinction whatever. It is forbidden to
kill or wound an adversary who surrenders or who can no longer take part in
fighting. Neither the parties to the conflict nor members of their armed
forces have an unlimited right to choose methods and means of warfare. It is
forbidden to use weapons or methods of warfare that are likely to cause
unnecessary losses or excessive suffering. The wounded and sick must be
collected and cared for by the party to the conflict which has them in power.
Medical personnel and medical establishments, transports and equipment
must be spared. The Red Cross or Red Crescent on a white background is
the distinctive sign indicating that such persons and objects must be
respected. Captured combatants and civilians who find themselves under the
authority of the adverse party are entitled to respect for their lives, their
dignity, their personal rights and their political, religious and other
convictions. They must be protected against all acts of violence or reprisal.
They are entitled to exchange news with their families and receive aid. They
must enjoy basic judicial guarantees. Many a times these rules are violated
by the states in the name of “Military necessity”, but it is doubtful that such
violations are ever accepted by the civilized international community.

The humanitarian laws are the outcome of long standing practice of

the belligerents culminating into customary rules and later to be embodied in
numerous conventions. They have become part and parcel of the customary
international law. Among the most important of these instruments adopted
prior to the first world war are: the Declaration of Paris, 1856; the Geneva
Convention for the Amelioration of the condition of wounded in armies in
the field, 1864; the Declaration of St. Petersburg, 1868; the Hague
Conventions of 1899 and 1907. The inter war period saw the conclusion of
the Geneva Gas and Bacteriological Warfare Protocol, 1925, supplemented
by the 1972 Convention on the Probation of the Development, Production,
and Stockpiling of Bacteriological and Toxin Weapons and their
Destruction; the Convention on the Prohibition of the Development,
Production, Stockpiling and Use of Chemical Weapons and their
Destruction, January 13, 1993; the 1929 Geneva conventions on: (i) The
Treatment of the Sick and Wounded in Armies in the Field, and (ii) the
Treatment of Prisoners of War; the Submarine Rules Protocol, 1937. The
experience of the second world war later resulted into Four Geneva Red
Cross Conventions, 1949, namely (1) Convention for the Amelioration of
the Condition of Wounded and Sick in Armed Forces in the Field; (2)
Convention for the Amelioration of the Condition of Wounded, Sick and
Shipwrecked Members of Armed Forces at Sea; (3) Convention Relating to
the Treatment of Prisoners of War; and (4) convention relating to the
Protection of Civilian Persons in Time of War. In 1977, two Additional
Protocols to Geneva Conventions, 1949, were adopted (a) Protocol Relating
to the Protection of Victims of International Armed Conflicts, and (b)
Protocol Relating to the Protection of Victims of Non-International Armed
Conflicts.
 The humanitarian laws were' in existence in ancient India where the
epic wars were fought involving large armies and directed by heroes like
Rama and Krishna. The most glorious instance of Emperor Ashoka, who
won the Kalinga war (225 B.C.) but, at the sight of slaughter in battles,
renounced violence for ever as a Buddhist principle, shines as a beacon light
of humanitarian regime, ‘to exist is to co-exist’ is the quintessence of global
jurisprudence. Early period of India relate to mitigation of suffering during
war. The Sukraniti deals with principles which must be observed even in
battles. India has absorbed this spirit of farewell to arms and that is why
from the Buddha to Mahatma Gandhi, we find a humanitarian ethos in
Indian culture. The Bandung spirit also highlights in the 20th century what
early Indian dharma had taught. Jawaharlal Nehru stood for anti
imperialism and human solidarity. He was one of architects of the Bandung
conference. The Declaration on the Promotion of World Peace and Co­
operation at Bandung is proof of the Indian humanitarian culture. India is
signatory to the Geneva conventions and has incorporated the same into the
domestic law by enacting the Geneva Convention act of 1960.

The First Geneva Convention protects wounded and sick combatants,

the personnel attending them, the buildings in which they are sheltered and
the equipment used for their benefit. Regulates the use of the Red Cross and
Red Crescent emblems. The Second Geneva Convention, protect to
shipwreck and regulates the conditions under which they can assisted. The
Third Geneva Convention protects members of the armed forces that have
been taken prisoner. Set forth the rules governing their treatment and
establishes the rights and obligations of the detaining power. The Fourth
Geneva convention, establishes the rules governing the protection of the
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civilian population, in particular the treatment of civilians in occupied
territory, those derived of their liberty, and occupation in general. Protocol I,
broadens the protection extended to civilians and limits the means and
methods of warfare. Protocol II, contains the fundamental guarantees for
persons not taking part in hostilities during a non- international armed
conflict, set forth rules relating to the protection of civilians and objects and
installations essential for the survival. India is signatory to the Geneva
conventions and has incorporated the same into the domestic law by
enacting the Geneva Convention act of 1960.

International humanitarian law gives expression in law to the

fundamental principle of the equality of men and women, specifying this
principle in clauses forbidding discrimination. Articles 12 of the First and
Second Conventions, 16 of the Third Convention, 27 of the Fourth
Convention and Article 75 of Additional Protocol I and Article 4 of
Additional Protocol II (referred to below as C.I, C.II, C.III, C.IV, P.I and
P.II) provide for treatment “ without any adverse distinction founded on
sex..." It is also specified that women "shall in all cases benefit by treatment
as favorable as that granted to men" (Article 14, C.III). The principle of
equal treatment is extended by the further principle that "women shall be
treated with all the regard due to their sex" (Article 12, C.I and C.II, article
14, C.III). With respect to the labour of prisoners of war, the principle of
special treatment for women is referred to (Article 49, C. Ill), while it is not
in the case of women internees (Article 95, C. IV). As to the searching of
prisoners of war, differentiated treatment is not specifically mentioned
(Article 18, C. Ill), whereas it is in the case of a woman internee (Article 96,
C. IV). At the time of capture, a prisoner of war must be searched
immediately, for obvious reasons of security.

Children are entitled to extensive protection under international

humanitarian law. First and foremost, they are protected as civilians not
taking part in hostilities and with regard to their particularly vulnerable
character as children. This special protection is enshrined in no less than
twenty- five of the provisions of the Geneva conventions of 1949 and their
additional protocols of 1977. International humanitarian law also regulates,
through the additional protocols of 1977, the participation of children in
hostilities. The participation of children less than fifteen years of age in
actual fighting is prohibited. In additional, protocol I encourages the parties
to the conflict, if they enroll persons over fifteen years of age but under
eighteen, to take only the oldest.

Refugees are people who have fled their countries, while internally
displaced persons (IDPs) are those who have not left their country’s
territory. Refugees enjoy first and foremost the protection affordable them
by refugee law and the mandate of the office of the United Nations High
Commissioner for refugees (UNHCR). If they are in a state involved in an
armed conflict, refugees are also protected by international humanitarian
law. Apart from the general protection afforded by IHL to civilians, refugees
also receive special protection under the Fourth Geneva convention and
additional protocol I. This additional protection recognized the vulnerability
of refugees as aliens in the hands of a party to the conflict and absence of
protection by their state of nationality. IDPs are protected by various bodies
of law, principally national law, human rights law and, if they are in a state
undergoing armed conflict, international humanitarian law.

Humanitarian law is considered as one of the weak branches of

international law. It is generally said that contemporary humanitarian law
has well developed and articulated norms and rules for the regulation of
armed conflicts, but it is not well developed in so far as implementation and
enforcement of these rules are concerned. It is easier to secure compliance
with a law in a centralised society like the one that exists within a State. In
the contemporary decentralised international community, there are several
hurdles in implementing international humanitarian law. The present system
of implementation of international humanitarian law has three dimensions:
national, bilateral and international. In other words, humanitarian law can be
implemented by adopting certain unilateral national measures, or in times of
a conflict, by adopting bilateral measures and it can also be implemented
under the auspices of the international community with the help of certain
international measures.

Even though the Indian Constitution does not contain any specific
provision which obliges the State to enforce or implement international
treaties and conventions including International Humanitarian Law, the
constitutional obligation of the judiciary to enforce the fundamental human
rights may indirectly uphold the principles of IHL enshrined in the Geneva
Conventions. Amongst the domestic legislation, the only law that directly
covers within its scope the principles of IHL is the (Indian) Geneva
Conventions Act of 1960. However, since grave breaches of the
Conventions are punishable under the Act and since they are 'civil offences'
triable by ordinary criminal courts, they may be tried by the courts-martial
established under the Anny Act or other related laws, if committed by
persons subject to the latter law. Again, some of the offences against persons
and property under the Indian Penal Code have some resemblance to the
grave breaches as defined under the Conventions. The attempt in this paper
is to indicate to what extent the principles of IHL are reflected in the Indian
Constitution and domestic legislation

"War crimes are such hostile or other acts of soldiers or other

individuals as may be punished by the enemy on capture of the offenders."
(Professor Oppenheim) Now it is generally recognised that there is personal
responsibility for commission of war crimes. This is evident from Exparte
Quirin, Yamista, Nuremberg, Tokyo and Eichmann Trials. The principles of
International law enunciated in the Neuremberg Trial have brought about a
revolutionary change in the laws of war in general and war crimes in
particular. The principles of international law enunciated in the Nuremberg
judgment have been summarised in the Report of the International Law
Commission in its second session in 1950. The Nuremberg Trial classified
the crimes punishable under international law into the three categories: (1)
Crimes against peace (2) War crimes and (3) Crimes against humanity.

Genocide, crime of destroying or conspiring to destroy a group of

people because of their ethnic, national, racial, or religious identity. Raphael
Lemkin, a Polish legal scholar, coined the term in 1944 to describe Nazi
Germany’s annihilation of groups by direct murder and indirect means
during World War II (1939-1945). The Nazis’ specific attempt to totally
destroy the Jewish people and the Roma, or Gypsies, became known as the
Holocaust. Genocide has been a crime under international law since 1951.
Canadian scholars Frank Chalk and Kurt Jonassohn have identified four
main types of genocide. These types can be called: (1) ideological, (2)
retributive, (3) developmental,, and (4) despotic. However, any genocide
may have characteristics of more than one of these types.

War Crimes Trials, trials of persons charged with criminal violation

of the laws and customs of war and related principles of international law.
After World War II (1939-1945) the phrase referred usually to the dials of
German and Japanese leaders in courts established by the victorious Allied
nations. In 1993 and 1994 the United Nations (UN) established war crimes
tribunals to prosecute those who committed crimes during the civil wars in
the former Yugoslavia and in Rwanda. The tribunals were the first war
crimes trials since those held after World War II. These tribunals have
indicted numerous people, but very few of those people have been
apprehended or tried. In July 1998 UN delegates approved a statute
proposing a permanent international court to try people accused of genocide
(systematic extermination of a group), war crimes, crimes against humanity,
and crimes of aggression. The International Criminal Court will be
established if 60 countries ratify the statute proposing its creation. It will be
headquartered in The Hague, Netherlands. The court would replace ad hoc
tribunals such as those convened to address the situations in the former
Yugoslavia and in Rwanda. By May 3, 2004 the statute has been ratified by
94 countries. It has come into force on July 1,2002. the court was
inaugurated on march 11, 2003 in the Hague with the swearing-in of its
judges.

1.2 Object of the study

The object of this study is to highlight the principles of international

humanitarian law. The international humanitarian law is to limit the
suffering caused by warfare and to alleviate its effects. Its rules are the result
of a delicate balance between the exigencies of warfare on the one hand and
the laws of humanity on the other. Humanitarian law is a sensitive matter
and it suffers no tampering. It must be respected in all circumstances, for the
sake of the survival of human values and, quite often, for the sheer necessity
of protecting life. Each and every one of us can do something to promote
greater understanding of its main goals and fundamental principles, thereby
paving the way for better respect for them. Better respect for humanitarian
law by all States and all parties to anned conflicts will do much to help
create a more humane world.

It become necessary to put before the world, the shortcoming of this

law, the application of which is difficult to monitor and still difficult to
enforce. The detailed discussion of the rules their observations in the past
during different wars and armed hostilities is necessary to understand the
bindness or otherwise of such rules.

1.3 Hypothesis

Today humanity is threatened by wars, armed conflicts, confrontation

and power struggles which lead to problems of varied dimension - socio-
legal, economic, political and humanitarian. The impact of anned conflicts
on the human race is of such a magnitude that it demands timely action by
governments, international organizations and individuals. It is necessary
now, to draw the attention of the international community to the untold
sufferings of the victims of armed conflicts.
When violence erupts through armed conflicts in their myriad forms,
human displacement, on a micro-scale, and refugee problems harrowing and
piteous. Scenes of woe and brutality the like of which no eye had seen, heart
conceived nor human tongue could adequately tell unfold before nations
challenges to cope with which the international instrumentalities are
striving. Victory for human happiness worldwide needs a strong will to
enforce humanitarian laws. We are only at threshold. We have miles to go.
The finest hours of cosmic jurisprudence arrives when farewell to arms and
embrace of peace become a reality.

Like all international treaties, the Geneva Conventions and the

Additional Protocols were products of their times. They reflect the views of
their period about the nature of war, and the concerns and alignments of
contemporary international politics. Since the laws of war were last updated
in 1977, there have been significant changes in the nature of armed conflicts.
Most recently, there has been the U.S. campaign against global terrorism,
which has overturned many of the assumptions on which international
humanitarian law has traditionally rested.

It is now time to (review the workings of international humanitarian

law again. The shifting nature of armed conflict means that the Geneva
Conventions cannot address much of the organized violence in today’s
world and that where they do address it, some of their own inherent
weaknesses are particularly exposed.
1.4 Methodology

International humanitarian law revolves around four Geneva

Conventions, The U.N. General Assembly and Security Council resolutions
and practices adopted by different nations during last two centuries have
traced and principles behind these rules of practices in the international
community required to be evaluated on the basis of the hypothesis. For this
purpose, I adopted the following methodology, which may was deviated as
per the original and secondary sources of material on the topic were
available during the research work.

1. The material available on International Humanitarian Law hi

various text books and documents in Department of law library,
Central Library, University of Rajasthan, (Jaipur), Indian Law
Institute (New Delhi), Indian Society of International Law, (New
Delhi), Department of Public Information of Red Cross Society
(New Delhi), Department of Public Information of United Nations
(New Delhi), JNU Library (New Delhi), Delhi university library
and National Law University library have been traced.
2. The record and reports of U.N. agencies, International Law
Commission and ICRC have been collected.
3. I have gone through the decisions of ICJ, International Criminal
Tribunal and case law of the Supreme Court and High Courts to
understand the judicial trend of Indian courts and international
tribunals.
4. I have studied various articles published in law journals.
5. The subject matter available on internet has been traced to find out
the historical, technical and academic material available there.
1.4 Plan of the study.

This thesis has been divided into eight chapters.

CHAPTER I involves the object of the study, problem to investigate, plan

to study of International Humanitarian Law and Convention, Characters,
Resolution, Acts touches by this study. The hypothesis to be tested and
retested and was formulated and discussed.

CHAPTER II defines the meaning of international humanitarian law, need

for international humanitarian law when U.N. charter exists. Relation
between international humanitarian law and international human right law.
Similarly relation between IHL and international criminal tribunals and
terrorism had been dealt with. The soul and spirit of humanitarian law and
fundamental rules of humanitarian law applicable in armed conflict has also
been discussed in this chapter.

CHAPTER III deals with the origin and development of international

humanitarian law. In this chapter attempt has been made about the
development of humanitarian law in ancient times, during middle ages and
in nineteenth and twentieth century to understand the interest of the
international society in this field.

CHAPTER IV deals with the modem international sources of humanitarian

law i.e. four Geneva Conventions and its three protocols. Similarly this
chapter also discussed Geneva Convention Act, 1960. Thus it becomes the
major work of this research.

CHAPTER V, depict the provision of international humanitarian law which

protect the vulnerable class of the society women, children, refugees and
displaced persons during armed conflicts.
CHAPTER VI put empathized on the provisions of domestic legislation. It
discussed the principles of international humanitarian law some of which
also embodied in Indian constitution, Geneva Convention Acts of 1960 &
Army Acts.

CHAPTER VII deals with the implementation and enforcement of

international humanitarian law by unilateral measures, bilateral measures
and by international measures. This chapter also deals with the importance
and working of enforcement agencies viz. international court of justice, war
tribunals and international criminal court.

CHAPTER VIII, the last chapter of thesis deals with conclusion,

challenges and various suggestions about the better functioning of
international humanitarian law in contemporary situation.

1.5 Conventions, Charters, Resolutions and Acts touched

Major instrument in the field of international humanitarian law

include the Geneva Convention for the Amelioration of the Condition of the
Wounded and Sick in Anned Forces in the Field, 12 August 1949,
(Convention I), 12 August 1949. Geneva Convention of 1949 For The
Amelioration of the Condition of Wounded, Sick and Ship Wrecked
Members of the Armed Forces as Sea (Convention II), 12 August 1949.
Provisions of the Geneva Convention Relating to the Treatment of
Prisoners of War, 1949 (Convention III), 12 August 1949. Geneva
Convention Relative to the Treatment of Civilian Persons in time of War
(convention IV), 12 August 1949. Protocol Additional to the Geneva
Conventions of 12 August 1949, and Relating to the Protection of Victims
of International Armed Conflicts (Protocol I), 8 June 1977. Protocol
Additional to the Geneva Conventions of 12 August 1949, and Relating to
the Protection of Victims of Non-International Anned Conflicts (Protocol
II), 8 June 1977.

Some provisions of U.N. Charter also touch the present study.

Preamble of United Nations charter is to save the succeeding generation
from scourge of war. Purpose (Article 1) of United Nations is to maintain
international peace and security, to develop friendly relations among
nations. U.N. Charter embodied the principle of non- intervention by all
member and United Nations. [Article 2(4) & 2(7)]. Article 39 of the Charter
empowers the security council to determine the existence of any threat to the
peace, breach of peace, or act of aggression and shall make
recommendations, or decide what measures shall be taken in accordance
with Article 41 and 42, to maintain or restore international peace and
security. Article 51 of charter embodied the inherent right of individual and
collective self defense.

The General Assembly, as a political forum of the united nations, has

contributed a number of instruments. Among them are the 1948 convention
on the prevention and punishment of the crime of Genocide, the 1968
convention on the non- applicability of statutory limitations of war crimes
and crimes against humanity, 1980 convention on prohibition and
restrictions on the use of certain conventional weapons which may be
deemed to be excessively injurious or to have indiscriminate effects and its
four protocols, and principles of international cooperation in the detention,
arrest, extradition and punishment of persons Guilty of war crimes and
crimes against humanity, which the Assembly adopted in 1973.

The Security Council has established two international criminal

tribunals, for the fonner Yugoslavia, Resolution 780(1992) and for the
Rwanda, Resolution 955 (1994).
 Among the domestic legislation, the only law that directly deals with
the principles of IHL is the Geneva Conventions Act of 1960. This Act was
enacted by the Indian Parliament in view of the constitutional requirement
as well as the obligation cast by the Geneva Conventions upon the High
Contracting Parties “to enact legislation necessary to provide effective penal
sanctions for persons committing or ordering to be committed any of the
grave breaches" of the Conventions as defined under them and "to enable
effect to be given to certain International Conventions done at Geneva on
the twelfth of August, 1949".

The Constitution of India amply gives expression to the basic

principles of IHL. They find significant place in the Article 14, Art. 20, Art.
22, 23(1), Art. 34, Art. 51 (c), Art. 253. Entry 13 & 14 of list I of seventh
schedule.

Section 475(1) of the Criminal Procedure Code, Army Act of 1950,

The Air-Force Act of 1950 and The Navy Act of 1957, also touches the
provision of study.

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