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International humanitarian law: an Indo-Asian perspective

Published online by Cambridge University Press:  19 April 2010

V. S. Mani
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Type
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International Review of the Red Cross , Volume 83 , Issue 841: Asie et droit international humanitaire/Asia and international humanitarian law , March 2001 , pp. 59 - 76
Copyright
Copyright © International Committee of the Red Cross 2001

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References

1 Art. l, para. 2, Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977. Indeed, the Martens clause seeks to cover the ground, if any, left open by the various international agreements, so that no party to an armed conflict can avoid international responsibility by arguing with impunity that its impugned actions were not specifically prohibited, and were hence permitted, under international treaty law. But in the process, it has established a basic principle of international law.

2 The International Court of Justice, in the Corfu Channel case, spoke of “certain general and well recognized principles, namely elementary considerations of humanity, even more exacting in peace than in war”. I.C.J. Reports 1949, p. 22. See also its reiteration in the Nicaragua case, ICJ Reports 1986, p. 112.

3 In order to establish the State practice in support of a principle, the ICJ would not expect “complete consistency” on the part of States. “The Court does not consider that, for a rule to be established as customary, the corresponding practice must be in absolutely rigorous conformity with the rule. In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of States should, in general, be consistent with such rules, and that instances of State conduct inconsistent with a given rule should generally have been treated as breaches ofthat rule, not as indications of the recognition of a new rule.” Nicaragua case, ICJ Reports 1986, p. 98.

4 See generally Sastry, K. R. R., “Hinduism and international law”, Recueil des Cours, Académie de droit international, The Hague, Vol. 117 (1966–I), pp. 503–614Google Scholar, pp. 567 ff.

5 See Nehru, Jawaharlal, The Discovery of India, 5th reprint, Signet Press, Calcutta, 1948, p. 108.Google Scholar

6 Ibid.

7 This paper places general reliance on Nehru, ibid.; Sastry, op. cit. (note 4); and Singh, Nagendra, India and International Law, New Delhi, 1969.Google Scholar See also Chacko, J. C., “India's contribution to the field of international law concepts”, Recueil des Cours, Académie de droit international, The Hague, Vol. 93 (1958–I), pp. 121–218.Google Scholar

8 Nagendra Singh, ibid., p. 6.

9 Kautilya's Arthasastra, R. Samasastry (transl.), 5th ed., Mysore, 1956, Books X to XIV. See a typical statement: “He who is possessed of a strong army, who has succeeded in his intrigues, and who has applied remedies against dangers, may undertake an open fight, if he has secured a position favourable to himself; otherwise a treacherous fight.” Ibid., p. 394.

10 Singh, Nagendra, op. cit. (note 7), p. 5.Google Scholar He cites Ramayana, Yuddha Kanda, sloka 39.

11 Ibid, pp. 7–8.

12 Samasastry, , op. cit. (note 9), Book XIII, Chapter IV, p. 434.Google Scholar

13 Ibid., p. 433.

14 Nehru, , op. cit. (note 5), p. 105.Google Scholar

15 Majumdar, R. C., Raychaudhuri, A. C. and Datta, Kalikinov, An Advanced History of India, Macmillans, Madras, 1988 (reprint), p. 298.Google Scholar

16 Singh, Nagendra, op. cit. (note 7), p. 8.Google Scholar

17 ibid., pp. 8–9. The royal captives, in order to show their gratitude, presented Humayun with jewels and precious stones.

18 Ibid., p.10.

19 K. M. Panikkar quotes Burroes, a Portuguese historian, who said: “It is true that there does exist a common right of all to navigate the seas and in Europe we recognize the rights which others hold against us; but the right does not extend beyond Europe and therefore the Portuguese as Lords of the Sea are justified in confiscating the goods of all those who navigate the seas without their permission.” Panikkar, K. M., Asia and Western Dominance: A Survey of the Vasco da Gama Epoch of Asian History 1498–1945, London, 1959 (8th reprint 1970), p. 35.Google Scholar Burroes’ blatant statement comes in justification of the plunder and massacre by Vasco da Gama of Muslim pilgrims returning from Mecca. This occurred during his second voyage to India.

20 Quoted in Nehru, , op. cit. (note 5), p. 778.Google Scholar

21 Ibid., p. 777.

22 Ibid., p. 270.

23 Majumdar, , op. cit. (note 15), p. 363.Google Scholar

24 Quoted in ibid., p. 515. These virtues of Shivaji were appreciated even by his hostile critics, such as Kafi Khan.

25 Jawaharlal Nehru's broadcast speech on the All India Radio, 7 September 1946, reproduced in The Hindustan Times (New Delhi), 8 September 1946, and The Hindu (Madras), 9 September 1946. Nehru was speaking in his official capacity as the Vice-President of the Interim Government of India. Nehru's speech has since been reproduced under the title “Free India's role in world affairs”, in Mansingh, Surjit, Nehru's Foreign Policy, Fifty Years On, New Delhi, 1998, pp. 19–24.Google Scholar

26 For more on Indian law and practice of incorporation of treaties into domestic law, see Mani, V. S., “Effectuation of international law through the municipal legal order: the law and practice of India”, Asian Year Book of International Law, Vol. 5, 1995, pp. 145–74.Google Scholar

27 See Gazette of India 1959, Extraordinary, Part I, section 2, p. 1098, quoted in Balachandran, M. K., “Principles of international humanitarian law in the Indian Constitution and domestic legislation”, Bulletin on International Humanitarian Law and Refugee Law, Vol. 1, New Delhi, 1996, pp. 67–100Google Scholar, esp. p. 74. Balachandran's is one of the very few studies on the Indian law on international humanitarian law.

28 This level of courts in India has ordinary jurisdiction to try serious criminal offences.

29 Section 7 of the Act. This almost confers on the armed forces’ top brass the privilege of deciding whether the jurisdiction of the ordinary court should be precluded.

30 For a good critique of the Act, see Balachandran, op. cit. (note 27).

31 Decided on 26 March 1969, reported in All India Reports 1970 Supreme Court 329, as also in Supreme Court Reports 1970, pp. 87–102. This case bore upon the issue of applicability of the Geneva Conventions to Goa as an “occupied territory”. The Court held the Conventions and the Act inapplicable as the wartime occupation had ceased with the cessation of armed conflict.

32 National Human Rights Commission v. State ofArunachal Pradesh, reported in (1996) 1 Supreme Court Cases 742; State ofArunachal Pradesh v. Khudiram Chakma, reported in (1994) Supp. 1 Supreme Court Cases 615; Louis De Raedt v. Union of India, reported in (1991) 3 Supreme Court Cases 554.

33 The Indian judiciary has, however, been in the habit of making sure that the court martial proceedings conform to the human rights standards of the Indian Constitution. Thus, for instance, the Supreme Court of India held in S. N. Mukherjee v. Union of India, (1990) 4 Supreme Court Cases 594, para. 42: “This Court under Article 32 and the [State] High Courts under Article 226[ofthe Constitution] have, however, the power of judicial review in respect of proceedings subsequent thereto [i.e., in respect of the court martial proceedings] and can grant appropriate relief if the said proceedings have resulted in denial of the fundamental rights guaranteed under Part III of the Constitution or if the said proceedings suffer from a jurisdictional error.”

34 First Convention, Article 45, Second Convention, Article 46.

35 First Convention, Article 47, Second Convention, Article 48, Third Convention, Article 127, and Fourth Convention, Article 144.