Module 8

MODULE 8

HISTORY AND DEVELOPMENT OF IHL

2.1 INTRODUCTION

Although the origins of IHL can be traced to at least the nineteenth century, the principles
and practices on which it is based are much older..1 International lawyers tend to attribute a
long history to this current understanding of international humanitarian law. In their
descriptions of international humanitarian law, whether their focus is on historical issues or
contemporary concerns, they will often refer to an accepted narrative of international
humanitarian law, which assumes its longevity and agrees on its important milestones. There
are two common ways that international lawyers think about the history of international
humanitarian law. One is the story of the humanization of waar and law, the second is a story
of imperialism and oppression. Humanitarian law applied in armed conflicts must be as old as
armed conflict itself.

2.2 DEVELOPMENT IN WESTERN COUNTRIES

The achievements of 19th century Europe must be viewed against this, rich historical
background. Today’s universal and for the most part written international humanitarian law
can be traced directly back to two persons, both of whom were marked by a traumatic
experience of war Henry Dunant and Francis Lieber. Dunant and Lieber both built on an idea
forwarded by Jean- Jacques Rousseau in the social contract, which appear in 1762: “war is in
no way a relationship of man but relationship between states, in which individuals are
enemies by accident, not as men, but as soldiers” Rousseau continued, logically, that soldiers
might not be fought as long as they themselves are fighting. Once they lay down their
weapons “they again become mere men”. Their lives must be spared.2

Rousseau lays the foundation for the distinction to be made between the combatants, the
members of the fighting force, on one hand, and the civilians not participating in the conflict,
the remaining citizen of an enemy state, on the other by summing up the basic principle
underlying humanitarian law, i:e that the purpose of a bellicose attack may never be to


1 Hans Peter Gasser, International Humanitarian Law,1993
2 Jean-Jacques Rousseau, A Treaties Of Social Contract, chapter IV

destroy the enemy physically. The use of the force is permitted against the fighting force,
since the only purpose is to overcome the enemy armed forces, not to destroy the enemy
nation. But the force must be against the individual soldiers.

The intellectual foundation for the rebirth of international humanitarian law in the 19th
century was therefore laid. Henry Dunant could build on it. In his book, A Memory of
Solferino3, he did not dwell so much on the fact that wounded soldiers were mistreated or
defenceless people killed. He was deeply shocked by the absence of any form of help for the
wounded and dying. He therefore proposed two practical measures calling for direct action;
an international agreement on the neutralization of medical personnel in the field, and the
creation of a permanent organization for practical assistance to the war wounded. The first
led to the adoption in 1864 on the initial Geneva Convention, which has witnessed several
major advances in the field of humanitarian law.

1906 The Geneva Convention for the Amelioration of the condition of the wounded and
sick in armies in the field.

1907 The (tenth) Hague Convention for the adaptation of maritime warfare of the principles
of the Geneva Convention.

1929 The two Geneva Conventions; one covering the same ground as the Convention of
1864 and 1906; the other relative to the treatment of prisoner of war.

1949 Four Geneva Conventions relating to the protection of victims of war, the first and the
third conventions are revised version of the conventions of 1929, the second is revision of the
tenth Hague Conventions, 1907, the fourth breaks fresh ground and deals with the protection
of civilian persons in time of war.

1977 The Two Protocols Additional to the Geneva Convention of 1949, the first relative to
the protection of the victims of the international armed conflicts, the second of non
international armed conflicts.

Almost all the countries in the world have adopted most of the Convention that codify the law
of war. However, already during the First World War this clause was not observed, and it


3 Henry Dunant, “A Memory Of Solferino” ICRC Geneva 1986

came to be considered obsolete. It was realized that armed conflicts whatever their nature of
denomination, took place in spite of all efforts to outlaw them, and that, further-more, the UN
Charter admitted recourse to force in certain situations for example, acting to maintenance or
restore peace by virtue of a security council decision, in self defence, or on the basis of the
principle of self determination of justifying recourse to force. On all such occasions, there are
always people who suffer, and it is those persons’ plight that is of particular concern to the
ICRC, indeed it is for them that international humanitarian law the law which applied no
matter what the causes of the conflict is of paramount importance.

2.3 INTERNATIONAL HUMANITARIAN LAW SINCE THE SECOND WORLD
WAR

In terms of the progress made by international humanitarian law three periods may be
distinguished.

In the first period, covering the time between the end ofWorld War II and the early 1960s, the
most important event was obviously the adoption of the four Geneva Conventions of 12
August 1949 for the protection of war victims, the sixtieth anniversary of which we are now
to celebrate. It is fortunate that their adoption proved possible soon after World War II and
was not delayed, as was the revision of the preceding Geneva Conventions in the years after
World War I. At that time the belief prevailed that the League of Nations had brought
permanent peace to the world. That belief ruled out any consideration of new conventions on
warfare. It was consequently not until 1929 that two new conventions, one on the wounded
and sick, the other on prisoners of war, were adopted. However, a third convention and
perhaps the most urgent one, dealing with the protection of civilians, met with political
opposition and had not yet been adopted when the world was again engulfed by war.

After World War II, no expectations of permanent peace prevented the revision of the
Geneva Conventions. The United Nations nevertheless kept alooffrom this enterprise because
it was thought that UN participation in the revision of the law of war would undermine
confidence in the organization's capability to maintain peace. In conformity with earlier
practice, the International Committee of the Red Cross (ICRC) prepared the new treaties and
the Swiss government convened the international

Notwithstanding its abstention, the United Nations exerted a considerable, though little
noticed, influence on the Geneva Conventions, for its efforts to bring about an international
guarantee of human rights left their imprint upon them. This is not surprising, as the
Conventions were adopted only a few months after the proclamation of the Universal
Declaration of Human Rights. The attention paid to human rights had the effect that the
traditional law of war was gradually transformed into a human rights-oriented law. Traces of
this can already be seen in the 1949 Conventions, which speak of the “rights” of protected
persons instead of only imposing obligations on the belligerents, and also stipulate that o
protected persons cannot renounce their right.4 In addition, Article 3 common to the four
Conventions constitutes a kind of human rights provision; it regulates the relationship
between governments and their own nationals in the event of an internal aimed conflict, thus
a question traditionally regulated by human rights provisions only. Furthermore, the
previously unknown term “international humanitarian law” was introduced by the ICRC- in
the early 1950s, largely replacing the terms “law of war” and “law of armed conflicts”. It
soon became generally used, somewhat blurring the distinction between the law applicable in
armed conflicts and the law of human rights and giving rise to occasional confusion between
these two branches of international law.

A second period in the development of international humanitarian law started in the 1960s
when several more extensive wars broke out, notably the war in Vietnam, the civil war in
Nigeria/Biafra, the wars between the Arab States and Israel, and the wars of national
liberation in Africa. The latter type of conflicts in particular spurred the United Nations to
ever greater activity. As from 1968, the General Assembly adopted periodical resolutions
demanding that wars of national liberation be regarded as international armed conflicts in
which the Geneva Conventions were to be applied as a whole and freedom fighters to be
treated as prisoners of war. Also in 1968, the International Conference on Human Rights in
Teheran5 and the UN General Assembly6 adopted resolutions under the title “Respect for
human rights in armed conflicts”, requesting the Secretary-General, in consultation with the
ICRC, to take steps (a) for the better application of existing international humanitarian
conventions, and (b) for the adoption of additional humanitarian conventions to ensure better
protection of victims and the prohibition and limitation of the use of certain methods and
means of warfare. These resolutions opened the door for the elaboration of the two


4 Article 7 of the First, Second and Third Convention, Article 8 of the Fourth Convention.
5 International Conference on Human Rights (Teheran), Resolution XXIII of 12 May 1968.
6 United Nations General Assembly, Resolution 2444 (XXIII) of 19 December 1968.

Additional Protocols which were adopted in 1977. In this period between the 1960s and the
1980s. The United Nations became fully involved in questions of international humanitarian
law and, by combining that law with human rights, brought about the adoption of new
international humanitarian law instruments. As Frits Kalshoven aptly stated, with UN
Resolution 2444 of 1968 “the starting shot had been given for an accelerated movement
which brought the three currents: Geneva, The Hague and New York, together in one main
stream”. In spite of the important role played by the United Nations in this regard, the
preparation of the Additional Protocols was left to the ICRC and the convocation of the
conference adopting them to the Swiss government. The UN itself also adopted some treaties
on questions of warfare during this period, notably the Convention on the Prohibition of
Military or any Other Hostile Use of Environmental Modification Techniques of 197613 and
the 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional
Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate
Effects.

A third period, marked by a particularly intensive and almost revolutionary development of
international humanitarian law showing almost revolutionary traits, began after the end of the
Cold War in 1989. Never before had humanitarian issues and humanitarian law attracted so
much international attention as in this period. Also in non international conflicts; it
enumerated a considerable number of such customary rules. It shows that non-international
armed conflicts are regulated to a much greater extent by legal rules than had generally been
assumed. The International Court of Justice, in its Advisory United Nations General
Assembly, Resolution And never before did the necessity of humanitarian action and
humanitarian law become so evident as it has today. Since 1989, most armed conflicts have
been internal conflicts. During the Cold War, the animosity between the superpowers
overshadowed all other conflicts. Internal divergences, stemming from ethnic, religious or
political differences, were kept under control by external threats or totalitarian regimes. When
it ended, however, many regimes collapsed and internal conflicts were no longer held in
check. The expectation that the end of the Cold War would lead to a period of peace and
democratic regimes all over the world soon vanished. Internal conflicts began to cause even
greater humanitarian problems than had occurred during the Cold War period. It was soon
realized that only the international community could resolve this situation. For some time, the
United Nations obtained satisfactory results by sending observer missions or peace-keeping
forces into States affected by internal conflicts. This was the case in El Salvador, Cambodia

and Mozambique. However, such operations, which were based on the consent of the warring
parties, proved to be impossible or inadequate in later and more complex conflicts, such as
those in the former Yugoslavia, in Somalia, Rwanda, Liberia and Sierra Leone. I shall not go
into these conflicts and the measures taken, but shall confine myself to pointing out five
major developments which international humanitarian law has undergone in this period. The
first is the decision of the Security Council that large-scale violations of human rights and
international humanitarian law and the ensuing magnitude of human suffering can constitute
a threat to international peace and give rise to measures under Chapter VII of the UN Charter
14. The Security Council, by this decision, affirmed that respect for human rights and
humanitarian law constitutes an integral element of the security system set up for the world
organization. On the basis of this finding, the Security Council has not only authorized the
use of force in several humanitarian disasters since then, but has also set up two international
criminal tribunals to prosecute persons responsible for serious violations of international
humanitarian law. By so doing the Security Council has implicitly assumed the role of a
supreme guardian of international humanitarian law.

As a second development, it should be noted that the distinction between international and
non-international armed conflicts has lost much of its significance. The law of internal armed
conflict has been increasingly aligned with the law of international armed conflict. This was
especially emphasized by the International Tribunal for the former Yugoslavia in its Tadic
decision (Jurisdiction) of 2 October 1995. One of the causes of this development has been the
proliferation of internal armed conflicts and the growing seriousness of their repercussions
upon the international community. They can no longer be considered internal affairs of the
respective States, as they used to be. Moreover, all-out recourse to armed violence in internal
conflicts has become so generalized and so extreme that the difference between them and
international wars has steadily diminished. As early as 1968, and again in 1970, the UN
General Assembly characterized some basic humanitarian principles as applicable “in all
armed conflicts”18 or in “armed conflicts of all types”. In many resolutions on non-
international conflicts in the past decade, the Security Council has furthermore called upon
the warring parties to observe international humanitarian law and to desist from all breaches,
without limiting itself to rules on non-international armed conflicts. It is also revealing that
practically all humanitarian law treaties concluded in the past few years have been made
applicable to both international and internal armed conflicts. It cannot be overlooked,

however, that it would not be possible to apply all provisions of the law of international
armed conflicts to internal armed conflicts.

The gradual disappearance of the distinction between non international and international
armed conflicts has been facilitated by a third development, the growing importance of
customary law. The International Criminal Tribunal, in its Tadic decision , came to the
conclusion that many principles originally applicable in international armed conflicts had
only in the course of time become customary rules applicable also in non international
conflicts, it enumerated a considerable number of such customary rules.

The fourth important development has been the influence of human rights law on
international humanitarian law. The fact that most contemporary armed conflicts are internal
conflicts has accentuated this development, since in these conflicts human rights law and
humanitarian law play an equally important role. Most of the serious violations of
international humanitarian law are also violations of human rights. In most internal armed
conflicts, the Security Council and other UN organs have appealed to the warring parties to
respect both humanitarian and human rights law.

The fifth important development, finally, can be seen in the statement of the International
Court of Justice, in its Advisory Opinion of 1996 on the legality of the threat or use of
nuclear weapons, that the fundamental principles of humanitarian law constitute
“intransgressible principles of international customary law”. In other words, these principles
belong to the most fundamental norms of international law, norms which form part of what
could be called the unwritten constitution of the international community. They are an
indispensable foundation of that community. All these developments have been brought
about by judicial pronouncements or by decisions of political organs of the United Nations,
but not by the conclusion of new treaties. Indeed, it would hardly have been possible to attain
the same results by treaties, for many governments would have been reluctant to give their
express consent to limitations of what had hitherto been considered internal affairs of States.

2.4 HISTORICAL DEVELOPMENT OF HUMANITARIAN LAW IN INDIA

2.4.1 HUMANITARIAN LAW IN ANCIENT INDIA

Humanitarianism of the law regulating wars in ancient India has been succinctly explained by
Prof. Basham:

“For (the more orthodox texts), the major motive of war is glory, not gain. War is not
merely a mean to an end, but part of the warrior’s dharma & good for its own sake... Rules
of fair fighting are laid down. For the later sources, such as Manu, a battle was ideally a
gigantic tournament with many rules... Homage and not annexation was the right fruit of
victory... ”

...the chivalrous rules of war, probably based on very old tradition, and codified in their
present form among the martial people of western India in post-Mauryan times, must have
had some effect of mitigating the harshness of war for combatants and non-combatants
alike. It is doubtful if any other civilization set such humane ideals of warfare. ”

While humanitarianism contributed to the high order of interstate relations and international
customs, chivalry ennobled the ideal of warfare and its practice in general conformed to that
lofty ideal.

Ancient scriptures like Ramayana and Mahabharata lay down the code of conduct for fighting
wars, which were scrupulously followed by the warriors. Some of the rules in the said wars
were as follows:-

a) The principle of avoiding unnecessary suffering and damage than what was absolutely
essential for the purpose of over powering the enemy was rejected.

b) Wars were fought only between sunrise and sunset and that too, after giving proper
ultimatum to the other party.

c) The civilian population, women and children were neither attacked nor taken into custody.

d) Unarmed soldiers, even kings and commanders, when disarmed were not physically
attacked.

e) The prisoner of war and injured persons were treated humanely.

f) The dead bodies of the enemy’s forces were respected and cremated according to
appropriate rules.

Magasthenes, the Greek ambassador of Seleucus Nicator at the court of Chandragupta
Maurya at Patliputra, chronicled:

“Whereas among other nations it is usual, in the contests of war, to ravage the soil, and
thus reduce it to an uncultivated waste, among Indians on the contrary, by whom
husbandmen are regarded as a class that is scared and inviolable, the tillers of the soil,
even the battle for the combatants of either side in waging the conflict make carnage of
each other but allow those engaged in husbandry to remain quite unmolested. Besides, they
neither ravage an enemy’s land with fire, nor cut down in tree.7

In the early, pre-Vedic, period, when Indian society was organized in tribal communities, war
between communities was “normal”, with no holds barred. Yet in many parts of India, the
process of war was divided into five stages:

1. Seizure of the enemy’s cattle;

2. Mobilization for invasion;

3. Bombardment of the enemy fortress;

4. Actual fighting; and

5. Victory.

The seizure of cattle was an advance warning of an attack, and gave civilians and non-
combatants time to seek shelter.

Many ancient texts such as the Ramayana, the Mahabharata, the Agni Purana, and the Manu-
smriti embody a number of ethical precepts that emerged in ancient India. These precepts
may be categorized according to four principal aspects of armed conflict as we identify them
today:

1. Methods of warfare;

2. Means or weapons of war;

3. Treatment of persons hors de combat (i.e. those who, as wounded or as prisoners, have
been placed out of action); and


7 J.W. Mc Crindle, Ancient India as described by Magasthenes (1926)

4. Treatment of civilians.

2.4.2 HUMANITARIAN LAW IN MEDIEVAL PERIOD

An example from Maratha history depicts how women were protected during armed
conflicts. In the year 1660, receiving an intelligence report that the Mughal subedar of kalian
was carrying the government treasure to Delhi, king Shivaji’s lieutenant attacked the subedar
and captured treasure. The subedar and his son and daughter-in-law were also taken in the
custody. All the captured persons were produced before shivaji. The lieutenant presented to
shivaji the daughter in law of the subedar as the ‘most valuable treasure’. Shivaji appreciated
the beauty of the young woman, but said ‘a lady is like mother to us. In according to Maratha
custom, Shivaji presented a saree to the woman and she along with her husband and the
mughal subedar, was sent to Delhi under escort.

Another interesting event occurred in 1759 when a war being fought between the armies of
Aurangzeb and Guru Gobind Singh at Anandpur Sahib in Punjab. Bhai kanhaiya was deputed
to serve water to the soldiers of Sikh army. While doing so, bhai kanhaiya also offered water
to the wounded soldiers of the mughal army. Seeing this, some Sikh soldiers got agitated and
complained to Guru Gobind Singh. They ever dubbed him as a traitor as he was offer in water
to the wounded soldiers of enemy which enabled them to regain strength and fight against the
Sikh army. When complaint was made to Guru Gobind Singh, he asked that kanhaiya be
produce before him. On being questioned by Guru Gobind Singh, bhai kanhaiya replied that
“master, what can I do! I see only yon in every wounded soldiers”. Guru Gobind Singh was
pleased with this replay and not only allowed kanhaiya to continue serving water but also
gave him an ointment to ally on the wounds of injured soldiers without any discrimination. A
question arises in my mind; can there be a better example of practical application of the
humanitarian law in war! Indian history is replete with such an example.

There were other instances as well. In AD 1526, when Ibrahim Lodi, Sultan of Delhi, was
defeated by Raja Ram Chand and made prisoner, the Raja honoured him by seating him on
the throne. Nagendra Singh also notes another “well-known classic example” (one of the
“romantic anecdotes of Indian history”) of the conduct of the young Mughal emperor,
Humayun, soon after the historic Battle of Panipat in 1526. Sultan Ibrahim Lodi and
Vikramajit, the ruler of Gwalior, were killed in the battle. The wives and children of the Raja
of Gwalior had been left in the Agra Fort and the Mughal army captured them. Hearing of

this, Prince Humayun intervened, treated them with courtesy, and protected them from their
captors.

Some treaties concluded at the end of a war contained provisions relating to the repatriation
of prisoners of war. Nagendra Singh cites a treaty between the Sultanate of Bahmini and the
Vijayanagara Empire in the south. After several decades of war, the two kingdoms concluded
a treaty in AD 1367 whereby, “being reproached by the ambassadors of Vijayanagara for
indiscriminate massacre of Hindu women and children, Muhammad Shah ‘took oath, that he
would not, hereafter, put to death a single enemy after a victory and would bind his
successors to observe the same line of conduct’ From that time onwards, “it has been the
general custom in the Deccan to spare the lives of prisoners in war and not to shed blood of
an enemy’s unarmed subjects”. Although it is doubtful if such was “the general custom in the
Deccan” following the treaty, the treaty represents an illustration, albeit rare, of the moral
authority of humanitarian law amidst the clash of arms.

2.4.3 HUMANITARIAN LAW IN MODERN INDIA

Article 51 of the Constitution of India, 1950, enjoins the State to “endeavour to

(a) Promote international peace and security;

(b) Maintain just and honourable relations between nations;

(c) Foster respect for international law and treaty obligations in the dealings of organized
peoples with one 89 another”.

Article 253 of the Constitution empowers the Indian Parliament to enact any law in order to
implement any treaty or agreement to which India is a party, or even any decision of an
international conference, notwithstanding anything contained in the Constitution in respect of
distribution of legislative competence between Parliament and State (provincial) legislatures.

India became party to the 1949 Geneva Conventions for the Protection of War Victims in
1950 (it has not yet become party to the 1977 Additional Protocols), and incorporated them
into its statute book through the Geneva Conventions Act, 1960. The Statement of Objects
and Reasons made by the government while introducing the bill for this enactment explained
that the enactment was required because it was expected of India as a party to the
Conventions to provide for:

• punishment of “grave breaches” referred to in Article 50 of the First Geneva Convention
and equivalent articles of the succeeding Conventions;

• Conferment of jurisdiction on our courts to try offences under these Conventions, even
v/hen committed by foreigners outside India;

• extension of the protection given under the existing law to the emblem of the red cross and
to the two other emblems, namely, the red crescent on a white ground and the red lion and
sun on a white ground;

• Procedural matters relating to legal representation, appeal, etc.8

The Act is in five chapters. The first chapter deals with preliminaries such as the title, extent
and commencement of the Act, and definitions. It clarifies that the Act provides for
punishment of grave breaches of the Conventions, committed by “any person” “within or
without India”. The second chapter incorporates punishment of offenders committing grave
breaches of the Conventions and the jurisdiction of courts to deal with the breaches. The
punishment encompasses death or life imprisonment for wilful killing of a protected person,
and imprisonment for fourteen years for other offences.

The Act specifies the level of civil court (Chief Metropolitan Magistrate in Bombay, Madras
or Calcutta, or a Court of Sessions in other places) to exercise jurisdiction under the Act.
However, court-martial proceedings under the Army Act of 1950, Air Force Act of 1950 and
the Navy Act of 1957 are explicitly excluded from the application of the Act.

The third chapter provides for the procedure of trial of protected persons and certain other
persons, including the requirements of notice and legal representation. The fourth chapter
seeks to protect the Red Cross and other emblems from abuse and provides for penalties
thereof. The final chapter deals with matters like the cognizance of offences under the Act
and the power of the Government of India to make rules under the Act. A crucial provision,
however, is section 17, which specifically forbids courts to take cognizance of any offence
under the Act except on a complaint by the Government or of an officer duly authorized,


8 In M. K. Balachandran, “Principles of international humanitarian law in the Indian Constitution and domestic
legislation”, Bulletin on International Humanitarian Law and Refugee Law, Vol. 1

thereby preventing the application of the Act against the government or its agencies. The
Geneva Conventions Act does not seem to have been an adequate piece of legislation
incorporating India’s international humanitarian law

obligations into domestic law.

The Supreme Court of India clearly noted some of the limitations ofthe Act in Rev. Mons.
Sebastiao Francisco Xavier dos Remedios Monteiro v. The State ofGoa42 as follows:

“To begin with, the Geneva Conventions Act gives no specific right to anyone to approach
the court. The Act was passed under Art. 253 of the Indian Constitution read with entries
13 and 14 of the Union List in the Seventh Schedule to implement the agreement signed
and merely provide for certain matters based on Geneva Conventions. What method an
aggrieved party must adopt to move the Municipal Court is not very clear. “It will thus be
seen that the Act by itself does not give any special remedy. It does give indirect protection
by providing for penalties for breaches of Conventions. The Conventions are not made
enforceable by government against itself nor does the Act give a cause of action to any
party for the enforcement of Conventions. Thus there is only an obligation undertaken by
the Government of India to respect the conventions regarding the treatment of civilian
population but there is no right created in favour of protected persons which the court has
been asked to enforce. If there is no provision of law which the courts can enforce the
court may be powerless and the court may have to leave the matter to what Westlake aptly
described as indignation of mankind. ” 9

While humanitarian law, in some shape or the other, formed part of every civilization
throughout the world, the two devastating world wars of the 20th century gave a new
dimension to it by making it truly international so as to ensure its acceptance and observation
by all the countries. India was one of the first six countries in the world to ratify the Geneva
Convention in the year 1950.

The Indo-Pak conflict in Kashmir- Immediately after the partition, the explosive situation in
Kashmir developed into an Indo-Pak conflict where India had shown adherence to the
principles of international humanitarian law while dealing with wounded and sick soldiers
and POWs of Pakistan.


9 All India Report 1970 Supreme court

The Goa operation- During the Goa operations in Dec. 1961, the Portuguese ship Albukark
was captured and the officers and sailors of the ship surrendered to the Indian navy and were
taken POWs and were treated in accordance with Geneva Convention till they were
repatriated to Portugal.

The Indo- Chinese conflict in 1962- In this conflict, the Indian red cross society in active
cooperation with Chinese red cross brought back 3211 POWs from china and also a few dead
bodies. The Indo-Pak conflict of 1965- In this conflict, there were many POWs on both sides
and organized relief camps as well various other facilities in cooperation with the Red Cross
and ICRC for providing succour to the wounded and sick jawans.

The Indo-Pak conflict of 1971- In this conflict, India took custody of approximately 75,000
Pakistani soldiers who surrendered to the Indian armed forces. Approximately 16,000
civilians, including women and children also sought the protection of our armed forces in
Bangladesh.

Kargil conflict- Kargil conflict was in form of proxy war declared by the Pakistan in kargil
area of Jammu and Kashmir. Dead Pakistani soldiers were buried with fall honour by Indian
army and returned captured Pakistani soldiers to Pakistan. Pakistan reciprocates and returned
one Indian air force officer.

India has absorbed this spirit of farewell to arms and that is why from the Buddha to
Mahatma Gandhi, we find a humanitarian ethos in Indian culture. The Bandung spirit also
highlights in the 20th century what early Indian dharma had taught. Jawaharlal Nehru stood
for anti- imperialism and human solidarity. He was one of architects of the Bandung
conference. The declaration on the promotion of world peace and co-operation at Bandung is
proof of the Indian humanitarian culture. India can be rightly proud of our traditional
adherence to international humanitarian law and of our total commitment to them. Ours is a
country where the rule of law is paramount and the dignity of a human being is supreme.
There is, however, no doubt it is of utmost importance that all of us in general and the Indian
soldier in particular should be fully aware of the humanitarian law so that the international
humanitarian law can be fally applied in the time of any international incident in future.

2.5 DEVELOPMENT OF MODERN INTERNATIONAL HUMANITARIAN LAW

The rules of warfare prior to 1860’s were either agreed on between belligerents or decreed by
rules and commanders in order to satisfy contemporary needs and convenience. The first
attempt to bring together the existing laws and customs of war in a document, and impose
them on an army in battle, was the “Lieber Code” (1863).

The convention established the neutrality of medical personnel and adopted a single, neautral
emblem to protect them and the medical facilities treating the wounded: the red cross on a
white ground.

2.5.1 THE ROLE OF THE ICRC

Since then, the development of both ICRC and what became known as the international
humanitarian law (IHL) has remained closely entwined. As the ICRC’s own role evolved,
bringing it into direct and continuous contact with the realities of war, it constantly urged
governments to expand the reach of the law, which gradually came to cover warfare at sea,
prisoners of war and civilians.

The scope of Geneva Convention reflected the ICRC’s own concern, which centred on the
needs of wars victims. But towards the end of the 19th century, in a separate stream of law,
government began to introduce international rules (the Hague Convention) governing the way
wars were conducted.

Towards the end of World War I, the ICRC appealed for an end to the use of chemical
warfare. The discussions that followed led to the adoption of a treaty (1925) to outlaw
chemical weapons- a set of rules still in force.

The ICRC’s intensive efforts, after the World War I, to expand the protection of war victims
resulted in new Geneva Convention covering prisoners of war, in 1929. But It was unable to
persuade governments to adopt without specific protection.

2.5.2 ENSURING IMPLEMENTATION OF THE LAW

Since the 1980s, the ICRC has put its energies into measures to encourage governments to
implement IHL and to teach its provisions at relevant levels within the state administration –
notably, within the armed forces. The ICRC also works with governments and national Red

Cross and Red Crescent societies to promote knowledge of the law in academic circles, youth
and the media.
The Red Cross and Red Crescent emblems are enshrined in the Geneva Conventions. In order
to make the protection they represent more easily acceptable to a diverse global audience, an
additional emblem – the red crystal – was introduced in 2005, in Protocol III to the Geneva
Conventions.