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Application of International law in india

International Humanitarian law has its unique history, The well-known practice was likely to be existed in between the rulers 18th century followed by the European warriors, but whiling testing its evolution ancient Indian played a key role more than 500 years ago, where the kingdom rulers formed their warfare standards.

Though in the later years the need and the importance of international Humanitarian law raised with a primary objective of disseminating a peaceful world and humane war ground behavior and the made provisions grooved an oversized part in the contemporary economic, political, and social conditions. International treaties and conventions, protocols, covenant, were formed for proper usage of Humanitarian law. In modern Humanitarian law, the pivotal and significant role was played by the Geneva Convention, Hague Convention, and two Additional protocols and institutions like Red-cross and Red-crescent which extremely exaggerated the importance of Humanitarian law.

Various other aspects of law and customs in the notion of enlarging and institutionalizing the universality of human rights is one of the foremost vital achievements created by those Conventions. whereas before World War II, the Geneva Conventions vie a crucial role in formulating humanitarian laws to restrain the war, the proliferation of international human rights law considerably emerged within the context of world organization Charter and UDHR, thus, Humanitarian law gained wider acclamation as humanity and social control instrument on the war grounds by creating an accountable, responsive and tangible laws.

International Law And Its Application Of In India

Art. 51 of the Indian Constitution directs the State that it shall endeavor to foster respect for international law and treaty obligations in the dealings of organized peoples with one another. The Hon’ble Supreme Court has very well established and stated in the case of Apparel Export Promotion Council v. A.K. Chopra, that domestic courts are under an obligation to give due regard to the international conventions and norms for construing the domestic laws, more so, when there exists no inconsistency with any of the domestic laws.

In other words, it is said that the Indian courts have the power and duty to apply the international laws and principles in deciding the cases unless they do not fall inconsistent with the domestic laws of the nation. It is an accepted principle that any rules of customary international law which are not contrary to the municipal law shall be followed by the courts of law.

The rules laid down in the aforementioned International Instruments casts an obligation upon the States to oblige and follow the standards of International Humanitarian norms during internal and external armed conflicts. Furthermore, it is also provided that International law can be used to provide a relief contained in a covenant that is not expressly mentioned in national law. The country ratifying the conventions creates a legitimate expectation amongst the people concerning its observance.

Evolution Of Humanitarian Law

Humanitarian laws are such laws, rules, and standards applied during the time of armed conflicts within and with other countries, the core objective of humanitarian norms are to protect the civilian population at the time of war and armed conflicts. While tracing its evolution, these rules governed the warfare over centuries, however, the need for which was created when those civilized nations maintaining their law and order and those worked towards the welfare of their community needs started behaving in an opposite inhumane manner during warfare.

The principles of humanity which were sworn by the rulers in protecting their state people’s needs were often compromised in the fields of warfare. Thus, this difference between its prospects being practice led to the raise of International Humanitarian law to govern all the warfare activities. By the Battle of Solferino of 1859 and Henry Dunant's Red Cross movement led to the rapid dissemination of humanitarian norms among the countries, they stressed its importance under various heads such as principles of human standards, political and cultural norms, rules of combatant and non-combatant differences and their protection levels and the legal duty of the participating and non-participating states in warfare.

Evolution Of Humanitarian Law In India

The standards and principles of humanitarian law in Indian polity had steady growth and evolution starting from the ancient era till now. The modern International Humanitarian Law was brought about by the nineteenth and the twentieth centuries in Europe, those standards and principles of warfare were seen over 5,000 years back in India.

The Indian kingdoms ruled over thousands of years back formed their warfare principles for the protection of non-combatants and civilians populations which were on par with the modern International Humanitarian norms. Though the ancient period had certain ruthless rulers of war, they practices and preached the Dharma and Buddhist principles in decision making by the rulers, which they practiced as their paramount duty.

They followed humane methods of warfare instilled with the principles of proportionality, they also endured the humanitarian principles upon the usage of weapons, they prohibited the use of weapons causing unnecessary suffering and the main aim of the use of weapons was to weaken the enemy and place its warriors hors de combat, but not to massacre.

However, the status of its practice started diminishing with the alien country invasion, though they showcased the high range of chivalry, yet they seldom practice humanitarian norms. By the dawn of Ancient Indian Humanitarian principles, the International Humanitarian Law came into force, various treaties started developing, it dealt with the repatriation of prisoners of war, and usage of weapons, etc., the key role was played by the four Geneva conventions of 1949 and the Additional protocol.

Core Of International Humanitarian Law: India

The Geneva conventions of 1949 were ratified and adopted by India in 1950, at the outset of becoming the party to the convention the Indian legislation and executives sworn to uphold its principles and apply it unprecedently upon all International and non- International armed conflicts. Furthermore, Article 51 of the Constitution of India, 1950, which deals with the state obligation to foster and respect the international Treaties and Conventions, ensured that those protocols and principles are to be respected and followed.

Later, to ensure a possible articulation of those humanitarian principles the Parliament under Article 253 of the Constitution made laws in respect of the distribution of the legislative in incorporating the objects statute book, “the Geneva Conventions Act, 1960.” Indian legislation framed the laws of Humanitarian protocols under the following objectives par with Geneva Convention:
  • Penal sanctions for the breaches of the provisions referred in Article 50 of the First Geneva Convention and other succeeding Conventions;
  • Jurisdiction for the trial of offenses, local and international
  • Protection facilities are provided by the red-cross, red-crescent, and red lion of the war grounds.
  • Legal representation and appeal of such matters.

Conventions And Other Laws

Geneva Convention

Geneva Convention was adopted in 1949, it was co prised as four conventions which aimed at regulating warfare and protecting people of warfare, which includes civilians, medics, members of aid and assistants, hostilities, wounded combatants, and prisoners of war. It applies to both international and internal armed conflicts. It provides legal protection for those people and ensures protection of the human rights.

The convention I – For wounded and sick soldiers on land
Convention II – for wounded and sick personnel in shipwrecked areas
Convention III – For prisoners of war
Convention IV – For the civilian population

Hague Convention

Hague Convention is a series of treaties and declarations for regulating armed conflict. It was convened in the 19th century which prescribed the rules and standards of warfare; it provided the means and methods which are permitted to be used in the war field. It ensured the protection of hostilities as well the cultural properties during armed conflicts. It addressed the issues of prisoners of war, weapons of unnecessary suffering, wounded and sick soldiers, and people.

Additional Protocols
After two decades due to the increased international armed conflicts and discourse to world peace and harmony, the Geneva Convention was annexed with two additional protocols. The Additional Protocol II of Geneva came into existence on 1977 amendment which exclusively dealt with the protection of victims of international armed conflicts. They ensured protection for victims placed under inevitable suffering at the country's borders. This protocol was not accepted by many countries, India has not yet signed the same. Furthermore, in 2005 the III Additional protocol was convened which recognized Red Crystal with the International status along with Red Cross and Red Crescent.

Other Laws
1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict, plus its two protocols
1972 Biological Weapons Convention
1980 Conventional Weapons Convention and its five protocols
1993 Chemical Weapons Convention
1997 Ottawa Convention on anti-personnel mines
2000 Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict.

Institutions
ICRC
International Committee of Red Cross is an internationally recognized body working in the dissemination and promotion of International Humanitarian Laws and standards, and an instrument of the Geneva Conventions. It was the first institution that was formed in furtherance of fulfilling the objectives of humanity on war grounds. This institution acts as a watchdog over the conflicting parties in acknowledging and ensuring their participation in practicing the Humanitarian laws and standards. They work on behalf of the victims of war for speaking up about the violations of their fundamental rights and also act as the frontliners at the war ground in facilitating medical aids.

United Nations High Commissioner for Refugees
The United Nations High Commissioner for Refugees is entrusted with the duty to protect the refugees and asylum seekers. They are to act in coordination with the relief and repatriation team at the war grounds in providing all essentials to those people and foster them into relief camps and provide medical and livelihood assistants.

United Nations Office for the Coordination of Humanitarian Affairs
The United Nations Office for the Coordination of Humanitarian Affairs is the organization responsible for coordinating humanitarian efforts around the world. They the information disseminators, they visit places and collect information and details, analyze it and produce the report. Their crisis analysis and evaluation act as a base for policy creation and operation.

Application Of International Humanitarian Law In India

Concerning the Indian form of application of International Humanitarian law, its fundamental document is the Geneva Convention of 1949; it is applied to both internal armed conflicts and International armed wars. Its activities are based upon some of the basic fundamental principles namely,
  • Principle of Humanity
  • Principle of Military Necessity.
  • Principle of proportionality
  • Principle of non-discrimination
  • Principle of humane treatment
  • Other principles such as:
    1. Prohibition of unnecessary suffering
    2. Differentiation between combatants and non-combatants
    3. Protection of the civilian population
    4. War-ground first aid
    5. Precautionary measures

With the primary purpose of regulating the means and methods of war and protecting the civilians, hostilities, and prisoners of war, the International Humanitarian law applied uniformly throughout the world. The rules and standards comprised under the Humanitarian law became the watchdog for the methods and weapons involved during the war. These rules and protocols aimed at mitigating the unnecessary inevitable sufferings of the peoples on war grounds.

These primal rules and standards are applied in India for both Internal and International armed conflicts. Balancing the necessity and is an obligation to international human rights and humanitarian treaties and conventions, India has been successfully incorporating the standards of war and protecting the victims of internal and international armed conflicts.

Through its effective association with the Universal Declaration of Human Rights, Geneva Convention, International criminal court and the International court of justice, and ICRC (International Community of Red Cross), they are indulged in upholding the Humanitarian laws and standards.

Rules Followed
  • Conflicting parties must distinguish between the combatant and the civilian population to mitigate unnecessary loss and sufferings
  • Parties should respect hors de combat, spare the hostilities they have to be protected and treated with humanity norms
  • Conflicting parties should not kill the wounded combatant or any people or the person who surrender as a result of war
  • Conflicting parties must treat the prisoners of war with humane conditions and should not instill any physical and mental torture, they have to be treated with dignity and full rights
  • The conflicting parties must abide by the standards of warfare in the deployment of weapons, they should not use weapons that are strictly prohibited by the covenants
  • Medical and first aid facilities must to availed to all the civilians and combatants

Case Studies

Kashmir Conflict

Due to the increased ethnic group and partition conflicts at the borders of India controlled part of Kashmir the people are witnessing inevitable suffering. The civilian people are continuously facing the wrath of the internal armed conflicts caused by the rebellious groups and belligerents. They suffer from harassment, reprisals, property destruction, indiscriminate attacks, military crackdowns, disappearances, and extrajudicial killings subjecting to continuous violation of International Humanitarian Law.

Various international communities have also looked upon the sufferings faced by that vulnerable population. The country has laid down various policies and rules with the main objective of instilling humanitarian norms. They patrolled for mitigation and prevention of conflicts, initiated funding for their livelihood, and facilitated medical needs, psychological assistance, protecting the detained and civilian populations in Jammu and Kashmir.

People’s Union For Civil Liberties Vs Union Of India[1]

In this particular case, the application of International Humanitarian Law in Indian courts was witnessed. The facts of the case are, People’s Union for Civil Liberties filed a writ petition in Supreme Court invoking Article 32 of the Constitution of India where they pleaded for a judicial inquiry into the matter of encounter two people by the Imphal police officials in 1991.

The said persons were alleged to have been involved in terrorists’ activities and they are into a separatists group, but it was later revealed to be an authorized political party and the killing was a deliberate act of the officials by influence. The opposite side claimed that the Manipur area is infiltrated with terrorists activities and separatists armed conflicts and the officials had reason to believe that the deceased person is one among them. In this case, the Apex court incorporated the violation of International Humanitarian Law provisions and decreed upon it.

Conclusion And Suggestions
International Humanitarian Law acts in an objecting of tending the victims of armed conflicts and in regularising the means and methods of warfare. Its primal objective is to strike a balance between the necessity of warfare and the apprehensions of humanity in the fields of war. India is a rapidly developing, democratic, and secular nation that will always be threatened with internal and international armed conflicts, while at the grounds of warfare they are destined to uphold and protect the standards of Humanitarian norms and battle in an extremely conducive, sensitive, and responsive manner and protect its people.

At present two major problems faced by the country are those of the militants and extremist groups at the borders and Naxalites at the central, and despite invoking all the humanitarian norms to its people larger population in Jammu and Kashmir are facing inevitable sufferings. These matters are the primal concerns that have to be noted and it is high time to combat the situation.

References:
  • https://www.icrc.org/en/doc/assets/files/other/what_is_ihl.pdf
  • https://ec.europa.eu/echo/files/funding/decisions/2004/dec_india_01000.pdf
  • https://guides.lib.uw.edu/c.php?g=398308&p=2707682
  • https://www.icrc.org/en/document/geneva-conventions-1949-additional-protocols
  • https://www.icrc.org/en/doc/assets/files/other/icrc_002_0467.pdf
  • https://international-review.icrc.org/sites/default/files/S1560775500106182a.pdf
End-Notes:
  1. https://casebook.icrc.org/case-study/india-peoples-union-civil-liberties-v-union-india
Written By:
  1. Yamini Tiwari - Amity law School
  2. Priyam Chaturvedi - Amity law school

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