INTERNATIONAL HUMANITARIAN LAW AND ITS EFFECT 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:

1. Geneva Convention
2. Hague Convention
3. 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:

1.   Sparing those who either do not or no longer participate in hostilities.

2. 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.

1. 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-

1. 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:

1. Sick or wounded fighter

2. People who are prevented from having their freedom because of armed struggle
3. 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, Pakistapn 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.