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One of
the most paradoxical situations of the contemporary world is that while
there is widespread concern for universal respect for observance of human
rights, gross violation of internationally recognised norms continue
unabated in some parts of the world. The right to life, protection from
torture and inhumane treatment available to the Armed Forces personnel
under the Geneva Convention are far from realisation. The obligations set
out in scores of international conventions and multi-lateral treaties for
promotion and protection of human rights and accepted by most of the
governments, are flouted by them with impunity. It was evident during the
Kargil conflict in 1999, when a mutilated body of one of the Indian Air
Force pilots was returned by the Pakistani Army. The injuries inflicted on
the officer had the evidences of inhuman treatment, torture and shooting
from a very close range. It was in the gross violation of International
Humanitarion Law.
The
International Humanitarian Law (IHL) has its legacy in the Battle of
Solferino. Henry Dunant, a business man was moved at heart looking at the
plight of the dead, of dying soldiers who were left without any medical
assistance. The doctors who were to cure the wounded were only in the
ratio of 1:6700 wounded. The greatest tragedy was that even these doctors
had been captured and were not able to extend any medical help on the
battle field. Henry Dunant was caught with the idea that the fighting army
should be able to organise itself in such a manner that it takes care of
its wounded soldiers. If it was not possible, could the relief be
organised by civilians to such wounded persons on the battlefield. This
was not possible without proper planning and preparation during peace
time. This is the quintessence of the theme behind IHL. To ensure it,
first thing was the preparation during the time when there was no crisis
and secondly to provide a distinctive sign to distinguish between a
fighting soldier and an organisation reaching medical aid to the wounded
persons. A small group of Swiss citizens formulated a code of conduct with
the aim of providing protection to the war wounded and gave them necessary
medical assistance. Today, after 167 years, we have a code of conduct for
providing protection to the wounded, and sick, both combatants and
civilians in a war ravaged state. These set of rules, accepted universally
by the world community came to be known as International Humanitarian Law.
The IHL is
designed as a set of rules aimed at limiting violence and protecting
fundamental rights of the individuals in time of armed conflicts. The IHL
deals with the special situation of an armed conflict. It has its origin
in religion, humanity and customs and usages of war practices by states
for centuries to minimise the miseries of war. The purpose of IHL was to
regulate acceptable behaviour and spare non-combatants from the savagery
of war. With a view to give these rules a firm footing and bring
uniformity in the laws of war, these customs and usages have been
codified. The Humanitarian Law in principle, is a conventional law. The
most notable instruments codifying rules of IHL are following :
* The
Declaration of Paris, 1856
* The
Geneva Convention of 1864 for an amelioration of the condition of the
wounded in the battlefield.
* The
Declaration of St Petersburg, 1868.
* The Hague
Convention of 1899 and 1907.
* The
Geneva Gas and Bacteriological Warfare Protocol of 1925 as supplemented by
the Convention of 1972 on the Prohibition development, production and
stockpiling of bacteriological and toxic weapons and their destruction.
* The four
Geneva conventions of August 12, 1949:
* The
convention of the amelioration of the conditions of the wounded, sick in
armed forces in battle field.
* The
convention for the amelioration of the condition of the wounded, sick and
shipwrecked members of the armed forces at sea.
* The
convention relating to the prisoners of war.
* The
convention relating to the protection of civilians and prisoners in time
of war.
* Two
additional protocols of 1977, to the convention of August 12, 1949 related
to the protection of victims of international armed conflict (Protocol I)
and the protection of victims of non-international armed conflict
(Protocol II).
The
fundamental rules of IHL applicable in armed conflicts are:
* Persons hors
de combat and those who do not take a direct part in hostilities are
entitled to safeguard their lives, physical and moral integrity. They
shall in all circumstances be protected and treated humanely without any
adverse distinction.
* It is
forbidden to kill or injure an enemy who surrenders or who is hors de
combat.
* The
wounded and sick shall be collected and cared for by the party to the
conflict which has them in its power. Protection also covers medical
personnel, establishments, transport and material. The emblem of the red
cross (red crescent, red lion and sun) is the sign of such protection and
must be respected.
* Captured
combatants and civilians under the authority of an adverse party are
entitled to respect for their lives, dignity, personal rights and
convictions. They shall be protected against all acts of violence and
reprisals. They shall have the right to correspond with their families and
to receive relief.
* Everyone
shall be entitled to benefit from fundamental judicial guarantees. No one
shall be held responsible for an act he has not committed. No one shall be
subjected to physical or mental 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. It is prohibited to employ weapons
or methods of warfare which causes unnecessary losses or excessive
suffering.
* Parties
to a conflict shall at all times distinguish between the civilian
population and combatants in order to spare civilian population and
property. Attacks shall be directed solely against military objectives.
The rules
of IHL are binding not only on states as such, but on individuals
including members of the armed forces, heads of states, ministers and
officials. Unless a treaty or customary rule of international law provides
otherwise, military necessity does not justify a breach of these rules.
Hence, normally no derogation is permitted from these rules and where it
is absolutely essential, adequate safeguards are provided. The IHL
provides the maximum possible protection of people in armed conflict
through a balance between "military necessity", on one hand, and
"humanity" on the other. The fact that army is loosing the war
cannot be a ground for non-compliance with the law, because violations of
the law will not serve any military purpose. But on the contrary, may only
cause more suffering unnecessarily and would also subject the armed forces
personnel to the sanctions of IHL for committing the war crime. In
practice, military manuals of different states contain instructions to
commanders in the field embodying the principle rules and customs of war.
In IHL, all rules to protect the life and dignity of the human beings are
to be implemented. The basic human rights encompassed in the IHL are as
follows:
The Rule of non-discrimination:
The protection accorded to victims of war should be without any adverse
distinction based, in particular on race, religion or political opinion.
Persons in the power of a party to the conflict should be treated
humanely, without any distinction based on colour, sex, language, religion
or belief, nation or social origin, wealth, birth or other status or any
other criteria.
The Right to life :
The most important right protected under IHL is the right to life.
Combatants in the warfield can be lawfully killed or wounded. However, the
IHL prohibits the use of weapons, projectiles and materials and methods of
warfare of a nation causing unnecessary suffering i.e. weapons which cause
excessively high death rate among soldiers.
Prohibition of Torture and Inhumane
Treatment : The Geneva Conventions and the
two Protocols explicitly prohibit torture and inhuman treatment. Infact, a
large part of the Geneva Convention contains rules and procedures to
accord humane treatment to all victims.
Protection of means necessary for
life : The parties to an armed conflict are
obliged for protecting the means necessary for life. The Protocols
prohibit the starvation of civilians as a method of warfare.
Respect for Religion:
The IHL gives due regard to the religion of the protected persons. The law
allows practice of religion to prisoners of war and civilians.
Judicial guarantee:
A person found guilty of a penal offence related to the armed conflict
cannot be sentenced or imposed penalty except first being tried and
convicted by an impartial and regularly constituted court after following
the recognised principles of regular judicial procedure.
Like all
humanitarian law treaties, the conventions and protocols under IHL are
universal in their application. At present 178 states are party to
Protocol I and 113 to Protocol II. Implementation of IHL by a state
involves a great deal of preparation in peacetime, if serious violations
are to be prevented. This involves the adoption of various national
legislative and regulative measures which give effect to the provisions of
the treaties.
The
international community also bears responsibility for respecting
international obligations, eventhough they are not directly involved in a
given armed conflict. Respect for IHL is not an exclusive affair between
the parties to an armed conflict. States parties to the Geneva Conventions
are bound under Article I to ‘respect and ensure respect’ for the law.
This means that they must not only implement it but also promote its
implementation by other states. The United Nations is also making attempt
to stop violation of IHL. The Security Council had created an
international tribunal to prosecute persons responsible for grave breaches
of IHL committed in the territory of the former Yugoslavia. With the
establishment of permanent International Tribunal in 1998, there is a hope
for better future for humanity.
The
principles of IHL find fair mention in the different provisions of the
Constitution of India. Part III (Fundamental Rights), Part IV (Directive
Principles) and part IV A (Fundamental Duties) of the constitution,
together give an effect to the basic human rights embodied in the IHL. The
rights mentioned in Part III like right to life and personal liberty,
right to equality and nondis- crimination, judicial guarantee and right
against exploitation etc are enforceable by the courts. Directive
Principles mentioned in Part IV are non-justiciable, but are fundamental
in the governance of the country. It is the duty of the state to follow
these principles both in the matter of administration as well as in the
making of law. Part IV-A of the Constitution of India which corresponds
with Article 29(1) of the Universal Declaration of Human Rights 1948 is
also non-justiciable. The Constitution of India thus vividly gives
expression to the fundamental human rights similar to those embodied in
the IHL. Further, to fulfil the objectives of IHL, the Indian Parliament
has been empowered by Article 253 of the Constitution to make laws to give
effect to treaties and conventions to which India is signatory. This
provision has enabled the Government of India to implement all its
commitments under international law.
The IHL
gained considerable significance when Indian Parliament legislated the
Geneva convention Act in 1960. Thus, the principles of IHL have become the
law of the country. The Indian Army’s participation in the UN efforts of
maintenance of international security dates back to the UN intervention in
Korea in 1950. Lt Gen KS Thimayya led a brigade-sized force to establish a
Neutral Nations Repatriation Commission (NNRC) in Korea. The Indian Armed
Forces have provided a number of peace keeping missions in Gaza Strip,
Congo (Zaire), Somalia and Rwanda. The Indian Armed Forces are still
remembered for their humane dealing with all the civilians and won the
hearts and minds of the people. It has also been an active member of the
UN peace keeping efforts around the world. This would not be possible
without its recognised reputation for upholding human rights.
The Indian
Armed Forces have enough evidence to show that it follows IHL in true
spirits since 1961 when police action took place in Goa. The Armed Forces
of India have adhered to its observance in letter and spirit. In 1971, the
Indian Armed Forces provided protection to about 20,000 civilians which
induced women and children and kept about 95000 prisoners of war affording
them treatment as per the principles of IHL. During the Kargil conflict in
1999, the Armed Forces again showed their adherence to the IHL in treating
captured Pakistani soldiers.
As part of
their obligation to disseminate knowledge of IHL, states are required to
train officers of the Armed Forces and other ranks who are likely to be
involved in conflicts. Keeping peace with the law of the land, all the
training institutions run by the Armed Forces have introduced Geneva
Convention of 1949 in their curricula. Good training, the setting of high
standards and examples in peace time will be followed in the battle.
Though IHL places certain limitations on the waging of war, in no way are
these intended to tie the hands of a soldier behind his back in battle.
The commanders must have an excellent appreciation of the principles of
IHL and should ensure that their forces understand minimum standards of
behaviour in war which can alleviate the sufferings of war victims. The
rules of IHL governing the conduct of hostilities should be disseminated
not only in military circles but also among the civilians, as in
non-international armed conflicts the civilian population is often closely
involved in hostilities.
There is a
serious need for commitment by the states to implement the IHL. The IHL
has not instituted any machinery of its own for implementation, but
indicates specific types of state implementation, international
cooperation and supervision. In order to prevent serious violation of
humanitarian law, implementation by a state involves a great deal of
preparation in peace time, including the adoption of various national
legislative and regulative measures. The Constitution of India gives
expression to the fundamental human rights which will have to be
implemented even during a state of emergency. The Armed Forces must ensure
that all those who have to implement their commitment under the IHL must
be familiar with their obligations. This requires their proper orientation
towards humanitarian law, imparting of training including in-service
courses and workshops on IHL. The knowledge of basic humanitarian law
norms would prevent violation due to ignorance.
We, in
India can be rightly proud of our traditional adherence to the IHL and our
total commitment to it. Ours is a country where the rule of law is
paramount and the dignity of human being is supreme. The Indian soldier,
true to the best traditions of the Indian Armed Forces, will undoubtedly
uphold all the basic principles of the IHL as a part of his discipline.
-Wg Cdr VC
Jha
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