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2018 | OriginalPaper | Buchkapitel

Collective Engagement and Selective Endorsement: India’s Ambivalent Attitude Towards Laws of Armed Conflict

verfasst von : Srinivas Burra

Erschienen in: Locating India in the Contemporary International Legal Order

Verlag: Springer India

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Abstract

It is argued that ancient Indian warfare had certain practices which were of significance to the conduct of hostilities in terms of their humanitarian values. India also had the instances of individuals taking humanitarian lead in providing relief in situations of armed conflict. An example of this being Bhai Kanhaiya who can be considered as an Indian counterpart to Henry Dunant of the Red Cross and Red Crescent movement. India had taken part in the drafting of the four Geneva Conventions of 1949. It is a party to the four Geneva Conventions and also brought in the implementing legislation to give effect to them. India actively participated along with many other newly independent States in the negotiations of the two Additional Protocols which were adopted in 1977 to strengthen the protection mechanism provided in the four Geneva Conventions of 1949. During the negotiations, India, along with other post-colonial States, supported the expansion of the definition of international armed conflicts to include national liberation movements. This was a clear reflection of the experience of many newly independent States who were under the yoke of colonialism till then. However, it expressed its reluctance to accept the category of non-international armed conflicts. It has not yet become a party to the two Additional Protocols. However, India participates in several other treaties which are of relevance to the situations of non-international armed conflicts. India’s ambiguous position in respect of non-international armed conflicts seems to reflect its non-ratification of some of the treaties. Though it cannot be considered as a consistent position as there are also some examples to the contrary. This chapter would evaluate India’s engagement with the laws of armed conflict and its ambivalent attitude towards some of the issues like the non-international armed conflict. It also would attempt to evaluate India’s engagement with humanitarian organizations like the International Committee of the Red Cross.

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Gasser (2007).

Pictet et al. (1987).

See, Mani (2001) and Sinha (2005).

See, Rajan (2014).

During the battle of Anandpur Sahib (1704–5), Bhai Kanhaiya was seen carrying water in mashak (a kind of pouch made of goat’s skin) and serving the wounded soldiers without any discrimination between Guru’s soldiers and others. This was criticized by fellow Sikhs, and they complained to Guru Gobind Singh. When Guru asked him about this, Bhai Kanhaiya replied that it was true that he served water to all the soldiers because he did not see any distinction between soldiers as they all were human beings. Guru was convinced with this answer and said that he understood the Guru’s teachings correctly. See <http://www.discoversikhism.com/sikhs/bhai_kanhaiya.html> accessed on 19^th December 2017.

See, Dunant (1939, 1959). What was to become the International Committee of the Red Cross (ICRC) met for the first time in February 1863. Later developments led to the origin of the International Red Cross and Red Crescent Movement. See, <https://www.icrc.org/en> accessed on 06^th March 2018. First Geneva Convention: Convention for the Amelioration of the Condition of the Wounded in Armies in the Field. Geneva, 22 August 1864.

Megret (2006).

India was a party or signatory to some of the important international humanitarian law-related treaties prior to its independence in 1947. These are: Treaty relating to the Use of Submarines and Noxious Gases in Warfare. Washington, 6 February 1922, (Ratification/Accession: 04.08.1922); Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare. Geneva, 17 June 1925, (Ratification/Accession: 09.04.1930); Final Act of the Diplomatic Conference. Geneva, 27 July 1929, (Signature: 27.07.1929); Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field. Geneva, 27 July 1929, (Ratification/Accession: 23.06.1931); Convention relative to the Treatment of Prisoners of War. Geneva, 27 July 1929, (Ratification/Accession: 23.06.1931); Treaty for the Limitation and Reduction of Naval Armaments, (Part IV, Art. 22, relating to submarine warfare). London, 22 April 1930, (Ratification/Accession: 27.10.1930); Procès-verbal relating to the Rules of Submarine Warfare set forth in Part IV of the Treaty of London of 22 April 1930, (Signature: 06.11.1936); and Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Charter of the International Military Tribunal. London, 8 August 1945, (Ratification/Accession: 22.12.1945). See <https://www.icrc.org/en/icrc-databases-international-humanitarian-law> accessed on 19^th December 2017.

The four Geneva Conventions of 1949 are: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field; Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea; Convention (III) relative to the Treatment of Prisoners of War; Convention (IV) relative to the Protection of Civilian Persons in Time of War.

Balachandran (1997)

Final Record of the Diplomatic Conference of Geneva of 1949, vol. I, p. 362.

Ibid.

The Conference met in Geneva in four sessions. The first session was held from 20 February to 29 March 1974, the second from 3 February to 18 April 1975, the third from 21 April to 11 June 1976 and the fourth from 17 March to 10 June 1977. All States which were Parties to the Geneva Conventions or Members of the United Nations were invited to attend, in all numbering 155 nations. The number of those participating in the Conference varied from 107 to 124 in the various sessions. In addition, 11 national liberation movements and 51 intergovernmental or non-governmental organizations participated as observers.

The two Additional Protocols of 1977 are: Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I); Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II).

Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva (1974–77) vol. V, p. 198.

Article 1(4) of the AP I expands the definition of international armed conflicts by including “armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist régimes in the exercise of their right of self-determination…”.

Part III and several chapters of Part IV (Articles 35–60) of the Additional Protocol I deal with the conduct of hostilities.

Article 44(3) of AP I provides for a major change regarding the militias or volunteer corps and other organized resistance movements. It modifies the conditions provided in Article 4A(2) of the third Geneva Convention of 1949.

Article 90 of AP I.

Additional Protocol II specifically governs the situations of non-international armed conflict. After the Common Article 3 of the four Geneva Conventions, this is the second major development regulating the situations of non-international armed conflict situations.

Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva (1974–77), vol. VII, p. 204.

See, Burra (2013), pp. 442–448.

See, Bugnion (2007).

Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem (Protocol III), 8 December 2005, Commentary of 2007, Preamble, <https://ihldatabases.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?action=openDocument&documentId=629F44FFE4CF6B42C12573A60031DB46> accessed on 19^th December 2017.

Additional Protocol III refers to this additional emblem as the “third Protocol emblem”. However, paragraph 14 of the Final Act of the Diplomatic Conference on the adoption of Protocol III stated that the ICRC and the Federation had informed the Conference that the designation “red crystal” had gained currency and would be introduced formally at the next International Conference of the Red Cross and Red Crescent.

Currently 73 States are parties to it and 23 States are signatories.

Final Record of the Diplomatic Conference of Geneva of 1949, vol II Section A, p. 150.

Ibid.

Ironically it was Switzerland, which convened the 2005 Diplomatic Conference which adopted the Third Additional Protocol.

The delegate of Switzerland said that “his Delegation was opposed to that resolution. The Committee had discussed the question on many occasions and had decided by a large majority to retain the present system. The symbol of the Red Cross, which had been in existence for more than 85 years, had now attained such moral value that it was impossible to dispense with it without greatly prejudicing the Conventions themselves. The Wounded and Sick Convention, also known as the Geneva Convention, was the Red Cross Convention and as such should conserve the emblem of the Red Cross”. Ibid.

The president of the ICRC said:

“The International Committee of the Red Cross would like to warn the governments represented at this Conference against the putting into effect of plans which would sooner or later inevitably entail the risk of a multiplication of protective symbols, which would, in turn, diminish the value attached to them. The protective emblem cannot be fully efficacious unless it is universally known, unless it is the symbol which is automatically and universally recognizable by all of the protection given to war victims. Any infringement of this principle of universality can only undermine the value of the symbol and hence increase the dangers incurred by those whom it is designed to safeguard”.

He further observed while referring to India’s position:

“Ten days before the foul assassination of the Mahatma, the present President of the International Committee of the Red Cross heard the holy man who prayed for understanding and peace between nations say: “The Red Cross creed is my creed”. We should like to conclude that the symbol of the Red Cross was also his symbol, and we place this invaluable testimony on record”. Final Record of the Diplomatic Conference of Geneva of 1949, vol II section B, pp. 223–224.

See, <http://blogs.icrc.org/new-delhi/about-us/> accessed on 19^th December 2017.

Final Record of the Diplomatic Conference of Geneva of 1949, vol II Section B, p. 517.

Ibid.

UNGA Res. 45/6, “Observer Status for the International Committee of the Red Cross, in Consideration of the Special Role and Mandates Conferred Upon it by the Geneva Conventions of 12 August 1949”, 16 October 1990. It is to be noted that the title of the resolution specifically refers to the four Geneva Conventions only but does not mention the Additional Protocols. This is probably because Geneva Conventions are universally accepted, whereas several States are not yet party to the Additional Protocols.

Later on, three more such organizations were given similar status. The three other international organizations which are of non-governmental nature that have been granted observer status with the UN General Assembly are: the International Federation of Red Cross and Red Crescent Societies (A/ RES/49/2, 19 October 1994), the Inter-Parliamentary Union (A/RES/57/32, 19 November 2002) and the International Olympic Committee (A/RES/64/3, 20 October 2009). See, Debuf (2016).

UN General Assembly, Provisional Verbatim Record of the 31st Meeting, UN Doc. A/45/PV.31, New York, 16 October 1990, pp. 73–83.

<http://blogs.icrc.org/new-delhi/about-us/> accessed on 19^th December 2017.

CRC/C/OPAC/IND/1.

Ibid.

Varadarajan 2007.

<https://www.icrc.org/eng/resources/documents/update/2014/india-chhattisgarh-health-care.htm> accessed on 05^th March 2018.

Withdrawal of Red Cross hits healthcare in Chhattisgarh villages, The Hindu, 08 September 2013, <http://www.thehindu.com/news/national/other-states/withdrawal-of-red-cross-hits-healthcare-in-chhattisgarh-villages/article5106930.ece> accessed on 05^th March 2018.

WikiLeaks cables: India accused of systematic use of torture in Kashmir, The Guardian, 16 December 2010, <https://www.theguardian.com/world/2010/dec/16/wikileaks-cables-indian-torture-kashmir> accessed on 05^th March 2018.

Official Records of the Diplomatic Conference in the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva (1974–77), vol. VII, pp. 202–203.

Press Statement by DGMO, 29 September 2016, <http://pib.nic.in/newsite/PrintRelease.aspx?relid=151242> Accessed on 19 December 2017.

See, Burra (2016).

Annual Report 2012–13, Ministry of Home Affairs, government of India, p. 22.

Rev. Mons. Sebastiao Francisco … vs State Of Goa, All India Reporter SC(1970) at 329.

See, Chandrachud (2014).

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Pictet J et al (ed) (1987) Commentary on the additional protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (1987), p XXVII

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Titel: Collective Engagement and Selective Endorsement: India’s Ambivalent Attitude Towards Laws of Armed Conflict
verfasst von: Srinivas Burra
Verlag: Springer India
Buch: Locating India in the Contemporary International Legal Order
Print ISBN: 978-81-322-3578-1

Electronic ISBN: 978-81-322-3580-4

Copyright-Jahr: 2018
DOI: https://doi.org/10.1007/978-81-322-3580-4_4

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