In this blogpost, Deepshikha Ranjan, a fifth-year BA LLB (Hons.) student at Chanakya National Law University Patna analyses the effect of International Humanitarian Law on Indian Law.
“International Law is a body of legal rules established by customs or treaty which are recognized by nations.” It sets a framework for the practice of organized international relations. International laws are formed by making treaties among states. Those laws are not binding on state until they have consented for it.
International Humanitarian Law (IHL) is a part of International Law. IHL comprises those rules which limit the effect of armed conflict. This law mainly protects those countries which do not involve in it the activities of hostilities and also keep under control the method and system of warfare. International Humanitarian Laws are also known by two other names i.e. (i) the law of armed conflict or (ii) the law of war. It is one of the subdivisions of International Human Rights law. This law takes measures concerning with armed struggle between states which can either be at international or non-international level. It aims at providing protection to combatant and non-combatant who have been disabled during conflict. IHL has three parts, namely:
- Geneva Convention
- Hague Convention
- Customary International Law
GENEVA CONVENTION
Since the adoption of Geneva Convention 1949, people have experienced number of armed conflicts. It aims at providing legal protection to people who do not participate in hostilities anymore.
Before 1949 there was nothing that restricted the use of force by armed group within state. Although there was International Humanitarian Law
which dealt with war as well as peaceful situation but after World War II it was realized that problem of internal character has accrued, which violated Human Rights due to which the need to regulate conduct of war was felt.
HAGUE CONVENTION
In 19th century the beginning of codification of customary principles of war conduct was done. In this convention IHL prescribes special rules for the conduct of war anywhere on land, at sea and in the air. Hague convention not only prescribed rules but also address the issue such as, which enemy should be attacked. They also made sure that unarmed civilians and their property are to be respected and to treat the wounded and prisoners humanely. Hague convention also codified the prohibition of use of weapons which cause unnecessary suffering.
CUSTOMARY INTERNATIONAL LAW
Customary laws play an important part in the evolution of IHL. These laws are based on general and consistent practice carried out by the nations which give the sense of legal obligation. IHL acknowledges jus cogens norms which also known as peremptory norms. They are such principles of International Law which are so fundamental that no nation may ignore them or act in contrary.
PURPOSE OF IHL
The purpose of creating IHL was to limit the use of violence in armed conflict by:
- Sparing those who either do not or no longer participate in hostilities.
- Regulating the means and methods of warfare.
War means outburst of primitive raw violence when nations do not settle their disputes or disagreement through peaceful discussion, they use weapon to speak as an alternate option.
War causes inevitable sufferings to people and damage to objects. The United Nations Charter has also expressed views and dealt with the circumstances under which states are allowed to use force. IHL is concerned with fate of those who are not taking part in war.
It is to be noted that the aim of IHL is not to prevent conflicts or wars between the countries. The purpose of IHL is to limit the human suffering which is caused by war. It mainly aims and intends to make rules on the ways in which war can be waged. It restricts the use of means in warfare and ensures proportionality. In other words, the purpose of IHL is to preserve a measure of humanity even during conflicts.
RULES TO BE FOLLOWED BY IHL
There are certain rules which must be followed by IHL. In order to spare the civilian population and their properties they must distinguish between civilian population and combatants. Attacks may be made only against civilian objectives.
Another rule forbids killing and wounding adversary who surrender in the fighting. The countries who are participants in the conflict and the member of armed forces are not allowed to choose methods and means of warfare. They cannot use means and methods that are likely to cause unnecessary excessive losses.
Medical personnel and medical establishments, equipment are spared. Those who are wounded should be taken care of.
APPLICATION OF IHL
IHL is applied in two situations i.e. one in International Armed Conflict and another in Non-International Armed Conflicts.
- International Armed Conflicts
Humanitarian law intends principally for the parties to conflicts and protects other individuals who doesn’t take part in conflicts, which includes-
- Non-International Armed Conflicts
In this situation, humanitarian law destines for the purpose of armed forces, either regular or irregular, which takes part in conflicts and involves in the protection of every person or category of individual who do not actively take part in activities of conflict and hostilities any more. A few such examples include:
- Sick or wounded fighter
- People who are prevented from having their freedom because of armed struggle
- Civilian people
LEADING INSTITUTIONS
ICRC which stands for International Committee of Red Cross is the body of International Law which is devoted in developments, implementation and promotion of International Humanitarian Law.
ICRC is the protector and guardian of IHL. ICRC acknowledges parties to the conflict of their duties they are morally and legally bound to do. This organization makes sure that application of law is done effectively and therefore respected. They also make representations that are confidential to the related authorities in the event of violation of humanitarian law. When the violations are serious, the ICRC retains the right to speak for the public and stand for them. It does so only if it deems it to be in the interest of the people affected.
EFFECT ON INDIA’S LAW
International Humanitarian Law balances the necessity and concern for humanity but hurdles in its application are created by ambiguity and non-clarity in the provisions.
The Additional Protocol II of Geneva is a 1977 amendment protocol which relates to the protection of victims of non-internal armed conflict. It strives to provide better protection for victim of internal armed conflicts taking place within the border of single country. But this protocol has not been accepted universally, it has not been accepted and ratified by India as well as by USA, Iran, Pakistan and few other states.
India has certain obligations under some International Convention and treaty at an international level. The ‘Universal Declaration of Human Rights’ (UDHR) declares that “all human being are born free and equal in dignity and rights. They are endowed with the reason and conscience. They should act towards one another is a spirit of brotherhood.” But later, the Indian Government passed the Geneva Convention Act, 1960 under Article 253 of the Indian Constitution. It prescribed punishment for the breach of convention 1949. Misuse of Red Cross and other protected emblem are also prohibited under this law.
At present two major problems are being combated by India i.e. ‘militants’ and ‘extremists’ which refer to group operating in Jammu & Kashmir to a large extent and group in the Naxal affected area respectively. Despite various human right treaties and signatory, India has failed to protect the Human Rights of Jammu & Kashmir people.
According to Indian perspective of the International Humanitarian Law, it has not participated in the Additional Protocols of 1977. Therefore, India would not allow ICRC any access to detainees, but it allowed ICRC access to terrorism affected areas.
International Criminal Court (ICC) is allowed to take action or measure only when a judicial system of India is not in existence or when it is not able to deal with crimes of particular nature which are covered by the statute.
