1 International Humanitarian Law: Indian Perspectives Dr. Tasneem Meenai Associate Professor Nelson Mandela Centre for Peace and Conflict Resolution Jamia Millia University

2 (IHL): What is it? International Humanitarian Law (IHL): What is it? ä IHL is a branch of international law that applies to situations of armed conflicts. ä It is a set of rules which seeks, for humanitarian reasons, to limit the effects of armed conflict. ä IHL is also known as the 'Law of War' or 'Law of Armed Conflict'.

3 Sources of International Law: CONVENTIONS: Agreements between States setting forth new rules of international law CUSTOM: General practice followed by states (State Practice) accepted as law (Opinio Juris) COURTS / TRIBUNALS: Decisions from international and domestic courts / tribunals (ICTY, ICC) ARTICLES & PUBLICATIONS: Writings and teachings of distinguished academics, scholars, etc.

Battle of Solferino 1859 Battle of Solferino, Henry Dunant’s initiative –

5 Henry Dunant and the Battle of Solferino (1859) Create Relief Societies ready to care for the wounded in wartime Create a set of rules that would protect non combatants from the effects of war

6 Historical development of IHL 1864 GENEVA CONVENTION 1864 GENEVA CONVENTION 1868 ST. PETERSBURG DECLARATION 1868 ST. PETERSBURG DECLARATION 1899 & 1907 HAGUE CONVENTIONS 1899 & 1907 HAGUE CONVENTIONS 1925 GENEVA GAS PROTOCOL 1925 GENEVA GAS PROTOCOL 1929 GENEVA CONVENTIONS F0R PRISONERS OF WAR 1929 GENEVA CONVENTIONS F0R PRISONERS OF WAR 1949 GENEVA CONVENTIONS 1949 GENEVA CONVENTIONS GCI:Wounded and Sick GCII:Wounded, Sick and Shipwrecked GCIII:Treatment of POWs GCIV:Protection of Civilian Persons 1977 ADDITIONAL PROTOCOLS TO THE GENEVA CONVENTIONS 1977 ADDITIONAL PROTOCOLS TO THE GENEVA CONVENTIONS API:International Armed Conflict APII:Non-International Armed Conflict TREATIES PROHIBITING / LIMITING THE USE OF WEAPONS TREATIES PROHIBITING / LIMITING THE USE OF WEAPONS 1998 INTERNATIONAL CRIMINAL COURT (ROME) STATUTE 1998 INTERNATIONAL CRIMINAL COURT (ROME) STATUTE

7 International Humanitarian Law

8 JUS IN BELLO and JUS AD BELLUM JUS IN BELLO IHL Rules of international law applicable between the parties to an armed conflict and related to the armed conflict JUS AD BELLUM Use of Force Rules of international law governing the resort to armed force

9 Main Branches of Jus in bello 1. Geneva Law Humanitarian law proper, which is designed to safeguard military personnel who are not or are no longer taking part in the fighting and persons not actively involved in hostilities

10 2. Hague Law The law of war, which establishes the rights and obligations of belligerents in the conduct of military operations and limits the means of harming the enemy

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12 Military Necessity: Principle It is permissible to use those measures not forbidden by international law which are necessary to secure the complete submission of the enemy as soon as possible with the least expenditure of personnel & resources. Recognises that use of force during armed conflict is legal, within the limits set out by IHL. Further recognises that legitimate military targets can be attacked/destroyed and enemy combatants killed, for legitimate military purposes.

13 Distinction: Rule : Parties to a conflict shall at all times distinguish between : the civilian population and combatants military objectives and civilian objects Attacks shall be directed solely against combatants and military objectives.

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15 IHL STRIKES A BALANCE: BETWEEN: MILITARY NECESSITY Use of armed force to attain legitimate military objectives & complete submission of the enemy is lawful. and HUMANITY It is forbidden to inflict suffering, injury or destruction not actually necessary to accomplish a legitimate military purpose The balance between MILITARY NECESSITY and HUMANITY is achieved through the application of the principle of PROPORTIONALITY.

16 WHEN DOES IHL APPLY IHL is applicable in situations of international armed conflict non-international armed conflict IHL is not applicable in situations including Internal disturbances

17 IHL & the International Legal Framework Rules governing the legality (legitimacy) of the use of force (Jus ad bellum) United Nations Charter (Arts 2(4), 51 & 42) Rules governing the conduct of hostilities (IHL) (Jus in bello) Geneva Conventions & Additional Protocols International Human Rights Law (IHRL) ICCPR & ICESCR, etc. Human Rights Law (IHRL)

18 IHL and Human Rights Law Common Goal : Protection of the individual HUMAN RIGHTS Freedom of Expression Freedom of Assembly Right to Marry COMPLEMENTARY IHL PROVISIONS Right to Life Protection of wounded, sick and shipwrecked Prohibition against Torture Protection of PoWs and civilian internees Prohibition against Conduct of hostilities Ill-treatment Fair Trial

19 The content of IHL Respect for persons who do not participate in hostilites or who are hors de combat. Prohibition against killing or injuring an enemy who surrenders or who is hors de combat. The wounded and sick shall be collected and cared for Respect for lives and dignity of captured combatants and civilians Judicial guarantees The choice of means and methods of warfare is limited Distinction

20 COMMON ARTICLE 3 In the case of armed conflict not of an international character,…each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (1) Persons taking no active part in the hostilities…shall in all circumstances be treated humanely… To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever…: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment;

21 COMMON ARTICLE 3 (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. (2) The wounded and sick shall be collected and cared for. (3) An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its service to the Parties to the conflict…

22 Indian perspective on IHL India became party to the 1949 Geneva Conventions for the protection of war victims in 1950 and incorporated them into its statute book through the Geneva Conventions Act, The Indian legal and institutional framework, based on respect for fundamental rights, is extremely conducive, sensitive and responsive to the implementation of the principles of international humanitarian law

23 Indian perspective on IHL India’s armed forces have by now established a record of compliance with the dictates of international humanitarian law, to which their Military Manual by and large conforms. The various engagements across India’s borders, as well as those under the aegis of the United Nations in which India’s peacekeeping forces participated, have largely demonstrated this compliance.

24 Indian perspective on IHL India treated the issue of terrorism as an internal matter Argued that Common Article 3 of the Geneva Conventions would not apply because combating terrorism did not amount to a non international armed conflict Resorting to violence as part of a struggle for self determination did not automatically qualify the activity as an international armed conflict within the meaning of Additional Protocol I

25 Indian perspective on IHL The principle of self determination did not permit secession from an already established state that functions in accordance with that principle India is not a party to the Additional Protocols of 1977 India would not therefore allow ICRC access to detainees Subsequently, India decided to permit access to ICRC to terrorism affected areas, and also to detention centres

26 Indian perspective on IHL Regarding the International Criminal Court, India’s position has been that the ICC should be based on the principles of complementarity, state sovereignty, and non-intervention in the affairs of the states According to India, ICC can step in only when a national judicial system is non- existent or unable to deal with particular crimes covered by the Statute.

27 Indian perspective on IHL Indian reservations – ICC Statute failed to mention international terrorism in the crimes covered India also wanted specific references to the use of nuclear weapons, land mines, and blinding lasers as war crimes – but no specific references were included.

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