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"Education is a liberating force, and in

our age it is also a democratising force,
cutting across the barriers of caste and
class, smoothing out inequalities imposed
by birth and other circumstances. "
- Indira Gandhi
 •
BLE-035
1tC:~I.~~
~~~
'W UNIVERSITY Understanding
Indira Gandhi
National Open University
International
School of Law Humanitarian Law

ICRC

Block

1
WHAT IS LAW? WHAT IS INTERNATIONAL LAW?
UNIT 1
What is Law and its Role in Society? How is a Country's
Legal System Organised 5
UNIT 2
Where do We Find International Law? How is it made
and How does it Function? 20
UNIT 3
What is IHL? When does IHL Apply? 32
How IHL Developed?
UNIT 4
Where do You Find IHL? 44
Expert Committee
Prof. V. S. Mani Dr. Sanoj Rajan
Director Jaipur Academic Programmes
National Law University Responsible for ICRC South Asian
Regional Delegation, New Delhi
Prof. Omprakash Mishra Prof. Srikrishna Deva Rao
Pro- Vice-Chancellor, IGNOU Registrar National Law University Delhi
Former Director, School of Law IGNOU
Dr. Borhan Uddin Khan Prof. K. Elumalai
Deen Faculty of Law Director, School of Law, IGNOU
Dhaka University
Dr. Suneet Kashyap
Assistant Professor, School of Law,
Dr. Nelum Deepika Udagama IGNOU
The Head of Department
Faculty of Law University of Colombo Ms. Gurmeet Kaur
(On sabbatical) Assistant Professor, School of Law,
IGNOU

Ms. Geeta Pathak Sangroula Mr. Anand Gupta

Associate Professor Assistant Professor, School of Law, IGNOU
School of Law Ms. Mansi Sharma
Kathmandu Assistant Professor, School of Law
IGNOU

Block Preparation Team

Programme & Course Coordinator Mr. Anand Gupta and Dr. Sanoj Rajan
Unit Writer Anupam Jha
Content Editor Professor Srikrishnadeva Rao
Format Editor Mr. Anand Gupta

Material Production
Mr. Yashpal Word Processing
Section Officer (publication) Mr. Madan Singh Rawat
School of Law, IGNOU School of Law, IGNOU

December, 2010
© Indira Gandhi National Open University, 2010
ISBN -978-81- 266-4969- 3

All rights reserved. No part of this work may be reproduced in any form, by mimeograph
or any other means, without permission in writing from the Copyright holder.
Further information on the Indira Gandhi National Open University courses may
be obtained from the University s office at Maidan Garhi, New Delhi-Ll O 068 or
the official website of IGNOU at www.ignou.ac.in.

Printed and published on behalf of Indira Gandhi National Open University, New Delhi
by Director, School of Law, IGNOU.
Laser typeset by: HD Computer Craft, WZ-36A Lajwanti Garden, New Delhi

Printed at : Gita Offset Printers, C-90, Okhla Industrial Area, Phase-I, New Delhi-20
BLE-035 UNDERSTANDING
INTERNATIONAL
HUMANITARIAN LAW (IHL)
Dear learner well come to this programme. This programme aims act developing
understanding about International Humanitarian Law (lliL). International humanitarian
law is a set of rules which seek for humanitarian reasons, to limit the effects of armed
conflict. It protects who are not or no longer participating in the hostilities and
restricts the means of methods or warfare.

This programme consist of three courses and a project on the topic given to you by
us or suggested by you. Course one (BLE-035) deals with the basic understanding
about IHL.

Course 2 (BLE-036): deals with the application ofIHL by various institutions and
bodies such as United Nations, International Community, ICRC and other non-
governmental organisation and application ofIHL at the National level.

Course 3 (BLE-037): mainly deals with the IHL issues of concerns in South Asia.
It discussed the case of each south Asian country in separate units.

Course 1 consists of 5 blocks. Block 1 introducing the learner with the concept of
law, International law and International Humanitarian law.

Block 2 Discussed the basic concepts of IHL. It analyses the concept of armed
conflict, International armed conflict, non-international armed conflict, participant of
war and protected persons and object during armed conflict.

Block 3 Discussed the basic rules ofIHL. These include- Principle of inviolability,
non-discrimination, neutrality, normality, protection, rule of distinction, rule of
proportionality. It also deals with the regulated Icontrolled and prohibited weapons.

Block 4 deals with the rules of protection of the different categories of protected
persons. These include rules of protection of the sick, wounded and shipwrecked in
war, of prisoners of war, of civilians, protected emblems etc.

Block 5 Deals with the relationship of IHL with other branches of law such as
Human Rights law, refugee law, international law and national constitution.
BLOCK 1 WHAT IS LAW? WHAT IS
INTERNATIONAL LAW?
In this block, we would explain the very basic concepts oflaw and international law.
Once you understand these basic concepts, you could easily understand the nature,
definition and content of international humanitarian law which you intend to study at
the end of the day. In this module, there are four units.

In Unit 1, we will explain you the meaning of the term 'law' and its role in the day-
today society. When you read this Unit, you should be able to understand the
organisation of the legal system of a country, the process of making law, and the
different sources oflaw. You would also understand the working of the legal systems
of South Asian countries.

In Unit 2, we will explain the location where you can find international law. We
would also try to make you understand the basic concepts of international law, the
meaning of treaties, how is it made and adopted, the nature of international law
resulting from practice of countries,those general principles oflaw which are recognized
by modem nations.

In Unit 3, we will explain you the meaning of that branch of international law which
is today called international humanitarian law. After going through the whole Unit, you
would possess the capability to understand the scope of application of international
humanitarian law, the course of development of this branch of international law
through different times and through different traditions, viz., Buddhist, Christianity,
Hinduism, and Islam.

Unit 4 is an attempt to make you grasp the currently available sources of international
humanitarian law. You would also know the names of the important legal instruments
on international humanitarian law. When you go further, you would understand the
development of two branches of international humanitarian law, which we conveniently
call by the names of 'Hague Law' and 'Geneva Law'. It would be also interesting
for you to know that ultimately, these two branches of international humanitarian law
have now merged into one.
UNIT 1 WHAT IS LAW AND ITS
ROLE IN SOCIETY? HOW IS
A COUNTRY'S LEGAL
SYSTEM ORGANISED?
Structure

1.1 Introduction
1.2 Objectives
1.3 What is 'Law'?
1.4 What is the Role of Law in Society?
1.5 How is Law made?
1.6 What are the Sources of Law?
1.7 How do the Legal Systems of South Asia Work?
1.7.1 Bangladesh
1.7.2 Bhutan
1.7.3 India
1.7.4 Maldives
1.7.5 Nepal
1.7.6 Pakistan
1.7.7 Sri Lanka

1.8 Summary
1.9 Terminal Questions
1.10 Answers and Hints
1.11 Glossary
1.12 References and Suggested Readings

1.1 INTRODUCTION
We come across different types of rules in every day life. Some of them are rules
of 'law' and some are merely rules for the general guidance of the society strictly
not 'law'. In this Unit, we will know which kind oflaw is called 'law proper'. Once
we know the meaning of the term 'law', then it would be easy to understand the role
of law in society. Law regulates marriage, break-up of marriage, custody of children,
and maintenance of old parents. Law governs business, environment, and political life
of a country. Law ensures peace, good order, and progress in society. In this Unit,
we would also try to understand the significance of law for the society.

Making of Law is also one important aspect of the legal system. Who can make law?
Whether national legislature and State legislatures only have the power to make law
or judges can also make law? Whether people's practices can also make law? Can
District CollectorlMagistrate make law? Can a country make law for another country?
All these questions could be easily understood if we understand the process of law
making.

Sources of law are also very important to be understood. Can Constitution be a

5
source of law? Can laws passed by national and State legislatures be a source of
What is Law? What is law? Can the practices of people be a source of law? Can the judgments pronounced
International Law?
by the Supreme and High Courts of a country be the source of law? Can the law
passed by one country be a source of law for other country?

This unit further provides understanding of wlorking methods of the legal systems in
South Asia also need to be understood. A legal system needs operating machinery
to run it. What are the components of this operating machinery? What are the role
of judges, lawyers, courts, media, and Non Governmental organizations to run the
legal system of a country? In this Unit, we will discuss working of legal systems of
South Asia also.

1.2 OBJECTIVES
After reading this unit, you should be able to:
• identify the rule oflaw amongst variety of rules around you;
• describe the role oflaw in the development of society;
• discuss how law is made and what are its sources; and
• know as to how legal systems in South Asia work.

1.3 WHAT IS 'LAW'?

As discussed in the introductory section, we come across different types of rules in
our day to day life. Rules set by our parents in the family, rules of science, rules of
a club, rules of an informal game etc. are some of the common examples. Are all
these rules of 'law'? This question can be answered if we know the meaning of the
term 'law'. We should be able to distinguish rules oflaw from rules which are not
law.

First thing to understand in this connection is that rules/law of science are not rules
of law, because rules of law are made by human being. Rules of science are not
made by human being, they are made by nature. Law means rule made by superior
political or judicial authority (comprising human being) having legitimate power to
make rule for the guidance of the conduct of other human beings. What is the
meaning of superior political or judicial authority? Superior political authority means
the appropriately constituted legislature/parliament or executive authorities deriving
powers from those superior political authorities. Superior judicial authority means the
highest court of the land or other courts deriving power from the law framed either
by the Constitution or the superior political authority.

The national parliament, in a centralized political structure, is vested with the powers
of making rules which could be considered as law. The legislatures of provinces of
a nation also possess the powers of making rules in the nature of law. It depends
on the political structure of the country to designate authorities which would be
vested with making the rules in the nature of law. If a country is having the federal
nature of its political structure, the power to make law would be vested both in
national and provincial legislatures. If a country is having unitary or centralized political
structure, the power to make rules would be vested in national parliament.

Another characteristic of law is that it tries to establish norms in the society to

regulate human behavior. It prescribes what the behavior of the members of the
6 society ought to be and it also forbids what it ought not to be. The norms may be
 What is Law and its
social, political, economic, or environmental. What would be the nature of the political
Role in Society?
structure of the country? Norms in political field may be set by law to have a federal How is a Country's
or unitary political structure. Similarly, norms can be set by law in the social field to Legal System
have a socialist or capitalist pattern of society. Likewise, norms can be set up by law Organised?
in the economic field to regulate the conduct of companies, banks, investors etc.
Similarly, norms can be set up by law in the field of environment to regulate the
conduct of those industries which pollute the environment or those vehicles which
emit harmful gas, etc.

One more general character of law is that the norms established by law are coercive
in nature. Coercion means compulsion. Coercion operates according to established
norms of law. Law has the backing of authority of the State apparatus. If the norms/
rules established by law are not obeyed by those for whom it is made, then the law
has inbuilt punishment mechanism. Law itself is not capable to be enforced as such.
Law needs to be enforced by the State authorities acting under the powers conferred
on them by law. The punishment prescribed by law may be of different forms. It may
be execution or hanging to death, imprisonment, payment of fines, or payment of
compensation etc. State apparatus entitled to coerce individuals to perform acts
according to rules of law may be police, courts, jail authorities, civil administration
staff etc.

Sometimes rules of law are also equated with the rules of morality. Parents may set
very high rules of morality to be observed by the children. But those rules of morality
may not necessarily be those oflaw. Morality confers greater burden than the benefits.
For example, honesty and speaking truth may cost a person much more than what
one receives in material terms. Law always tries to balance between the restrictions
on the individual and gains to him or to the society. It will not put a greater burden
than the resultant benefits. That is why in some countries, suicide or homosexuality
or mercy-killing is no longer an offence. Further, an organized and regularized
machinery of the State is present to enforce the rules of law, but morals are not
supported by such machinery.

Why are the rules of a club or of an informal game not rules of law? Now we can
understand that rules of a club are only having the second characteristic of law as
discussed above. Those rules are made by the members of the club themselves. The
members are not a political authority enjoying the powers to make rules of law. The
rules satisfy the second characteristic because the norms made by the club are for
the regulation of the behavior ofthe members of the club. Again the third characteristic
of law is absent. There is no coercive order authorized by the State authorities to
enforce the rules of club. Similarly, the rules of an informal game satisfy the second
characteristic of law. Hence, those rules are not to be called law. However, the rules
of a formal game may be part of law because the rules are made by an authority
which has derived powers from the appropriate legislative authority. Then it would
satisfy all the three characteristic of law.

Self Assessment Question

1) What do you mean by the term 'Law'?

7
What is Law? What is
International Law? 1.4 WHAT IS THE ROLE OF LAW IN SOCIETY?
Law is closely linked with the society. As the society develops, law also develops.
Law goes on changing with the changes in society. This is known as dynamics of the
society as well as of law. Law is considered as an instrument of social change since
it is an effective method of social control. Law has close relationship with sociology,
history,politics, economics, psychology,philosophy and so on.If the law is implemented
properly in today's time of democratic law making, law would certainly become an
important instrument of social change.

During the colonial rule, the law was little responsive to the needs of South Asian
society. In fact with the advent of the British rule, the development of the native law
came to a halt. The British rulers were rather interested in the continuation of their
rule than in the development of law. Therefore, those laws did not reflect the social
needs of the region. After the independence of the nations in this region, fast progress
of the society was needed. For that purpose, law, among other tools, was considered
to be an important t,ool to accelerate the pace of the progress of the society.

In today's time, the different societies of the world are progressing in a fast way.
Information Technology revolution, biotechnological successes, faster modes of
transport etc. have made the progress and interaction of the society possible. With
this progress, regulation of the use and transmission of information, and bio-technology
tools becomes important. How can the cyber crimes be controlled? What is the right
of the citizen to get information from the Government? How can the misuse of drugs
and cosmetics be controlled? Can a person possess any harmful weapon which is
dangerous to society? Law is an effective tool to lay down norms in an area and the
members of the society are expected to adhere to those norms. It is in the interest
of the society to adhere to the norms laid down by law.

Law protects human dignity by granting rights to human beings and imposing
corresponding duties on other fellow human beings. The rights granted to human
beings by domestic and intemationallaw is called 'human rights'. Some of those
human rights are so basic in character and are considered by many legal systems as
'Fundamental Rights'. Other human rights are called Social, Cultural and Economic
Rights. The violation of the fundamental rights is very serious matter and law ensures
the protection of those fundamental rights and thus promotes human dignity. Some
ofthe examples of those rights are right to equality, right to liberty, right to freedom,
right to practice any religion. Who protects these rights? It is law which protects-
these rights. Human being is the unit of the society. Once human dignity is ensured
in a society, society can prosper and human beings can commit themselves to the
well-being of the whole humanity. .

South Asian society, at present, seems to be at cross-roads as the countries of the

region are confronted with many complex problems such as poverty, unemployment,
social and economic backwardness, communalism, corruption, terrorism and so on.
Selfish and individualistic approach is penetrating deep in South Asian life. That may
shatter the regional character of South Asia. Considered from this angle, the role of
law and legislation has become all the more significant to tackle these burning issues
in order to maintain social equilibrium by reconciling various conflicting interests of
the members of South Asian society.

In the South Asian context, at present there is a wide gap between the poor and the
8 rich, the socially neglected and socially dominating class. This situation makes it
imperative for the State to provide adequate protection to weaker sections of the What is Law and its
Role in Society?
society, prevent exploitation, corruption and malpractices. The State must ensure
How is a Country's
equitable distribution of wealth and material resources to sub serve the common Legal System
good. The new challenges before the region because of socio-economic and Organised?
technological changes can be effectively met either by introducing new laws or
amending the existing laws to meet the exigencies of law.

The role of law in a civilized society may either be direct or indirect. To give
examples, laws relating to compulsory primary education help indirectly in the progress
ofthe society in the long run while the law relating to prohibition (alcoholic drinks)
has a direct impact upon the social life and morality of the people. Likewise, the laws
relating to protection of environmental pollution have a direct bearing upon public
health. On the other hand, licensing laws indirectly affect the economy of the country.

Self Assessment Question

2) What is the role of Law in society?

.,:,

1.5 HOW IS LAW MADE?

The power to make law may be called legislative power. Legislative power is vested
primarily in the sovereign authority of a political community. The sovereign authority
exercises legislative power through the institution of supreme legislature of a country.
It depends upon the political structure of the country to lay dlown the procedures
regarding making of the law. If the political structure is federal one then the law
making power is vested in the supreme legislature of the whole country (viz.,
Parliament) and also in the supreme legislature of the provinces (viz., Legislative
Assemblies) forming the federation. If the political structure is unitary one, then the
law making power would be vested in the supreme legislature (which is the Parliament)
of the country only.

Iflaw is made primarily by the supreme legislature of a country, can it be said that
subordinate legislature is also given the power to make laws? The answer is in
affirmative. Subordinate legislative power may be vested in local units of self-
governance, autonomous bodies, executive bodies, and higher judicial authorities.
Why do we call subordinate legislative power? Subordinate legislative power is that
legislative power which is enjoyed with the authority of the supreme legislature. If
legislative power is exercised without the authority of supreme legislature, it would
not be considered as law.

The law made by supreme legislature (whether federal or unitary) is generally named
as "Act", "Code", and "Statute". But the process of making law is slow. Ifin any
area, law has to be made, the appropriate legislature introduces the draft of the
proposed law which is called "Bill". If the Bill is passed in the legislature according
to the established practice, it becomes law of the land when it receives the assent
of the Head of the State. The date of coming into force of the law is generally
notified, Unless there is no notification of law, law does not come into force.
, '. 9
What is Law? What is The law made by subordinate legislature (whether autonomous or executive or judicial
International Law?
or local) is generally named as "Rule", "Bye-laws", "Order", "Statute", and
"Ordinance" etc. The term "delegated legislation" is used when executive makes law.
Law making power is said to be delegated to the executive by the supreme legislature
in any given area. Such legislation owes its existence, validity and continuance to the
supreme legislature. Supreme legislature controls every aspectoflaw making by the
subordinate legislature. The delegated authority to make law should not be misused
by the executive.

The autonomous bodies can also make law to govern itself. For example, University
is an autonomous body which has got the powers to make law for itself. The Railway
Company is also an autonomous body. Similarly, local bodies are powers to make
law concerning their local matters. These are generally called "bye-laws". Bye-laws
made by a local body operate within its respective locality. The examples of local
bodies are: Municipal Corporations, Municipal Boards, Panchayats, etc. The higher
judicial branch of the State machinery is also given the power to make law. Such
powers are given to regulate their own procedure of dispensing justice. Rules as to
the composition of the court (viz., single bench, double bench, and full bench) may
be framed by the higher judiciary themselves.

Can the supreme legislator make any law as it wishes? Is there any control on the
legislative power of the supreme legislature? The answer is in the affirmative. The
control on the legislative power of the supreme legislature is exercised by the basic
socio-economic philosophy of the nation on which it is standing. This basic socio-
economic philosophy is generally documented in every nation and is called
"Constitution". The Constitution is the highest law of the land. It is the Constitution
which lays down the extent of the legislative power of the supreme legislature. Thus,
the supreme legislature can not make any law as it wishes. It should make only those
laws which are according to the provisions of the Constitution and promoting the
ideals of the Constitution.

Another interesting question may be whether people of a country can make law by
practice? The answer is again positive. But is a very difficult process to prove the
practices of people amounting to law in the courtroom. Court may recognize the
practices of people as law if it holds that the practice in question is custom. Such
recognition by Court depends upon some factors, viz., duration of practice, consistency
of practice, generality of practice, reasonableness, adherence to public policy and the
existing Statute in the area. Unless a Court does not recognize the practice of people
as customary law, such practice would not become law. Many practices of the
people enjoying the status of customary law, right of pre-emption and 'sapta -padi'
(amongst Hindus) in marriage.

Sometimes you may also come to know that Court has made a law. Is it really
possible? Can the Court make law? Yes, the Court can make law, but with certain
conditions. One, that it is not the prerogative of all courts to make a law. Only higher
Courts can, in certain circumstances, make law. Two, the circumstances in which
the higher Courts could make law might be: absence of any law passed by the
supreme legislature in the field, the meaning of the existing legislation (or words
contained in legal provisions) is not clear, there is no commentary available on the
point, the interpretation of a Constitutional provision etc. If the higher Courts, in these
circumstances deliver a judgment, it is called 'judicial precedent' and it is also one
way by which law can be made and that would be binding on the people. The
10
examples of this way of law-making are some of the judgments of Supreme Court, What is Law and its
Role in Society?
like Vishakha v. State of Rajasthan (prevention of sexual harassment at work How is a' Country's
places), Keshavanand Bharati v. State of Kerala (basic structure doctrine in the Legal System
context of amendment of the Constitution), etc. Organised?

1.6 WHAT -ARE THE SOURCES OF LAW?

Why do we need to know the sources of law? We need to know the sources of law
because it helps us in identifying the reservoir oflaw, the location oflaw, the residence
of law. Once we know the source or sources of law, we can use and apply it at our
convenience; we can have access to it at any time as we know the residence and'
location of it.

Although sources of law differ from system to system and society to society, yet
seven broad sources of law can be discussed here. Those sources are: Constitution,
legislation, judicial precedent, custom, morality, equity, and opinion of jurists. Some
of these sources are called 'authoritative sources' and some are called 'non-
authoritative sources'. Authoritative sources are: Constitution (in those legal systems
in which there is Constitution and which is enjoying the highest reverence), legislation,
judicial precedent, and custom. Non-authoritative sources are: morality, equity, and
opinion of jurists.

In most of the legal systems, the Constitution is generally regarded as the highest
source of law. It is also called the ultimate source of law. All other sources of law
are not enjoying the same status as is enjoyed by the Constitution because the
Constitution is the fundamental law of the land. The provisions of the Constitution lay
down binding rules. Violation of the provisions can be checked and remedied by the
Court action. But there are Constitutions like that of China, which simply lay down
the rules for the guidance of the governance. Violation of the Chinese Constitutional
provisions can be checked only at the political level, not at the level of the Court.

Even though the Constitution of a country enjoys, generally, a very high status, yet,
legislation is the most important and biggest source oflaw today. The term "legislation"
means the making or enacting the law. Legislation is that source oflaw which consists
in enactment of legal rules by a competent authority e.g., Parliament or State
legislatures. Thus, legislation is long and thoughtful processoflegal evolution. It
consists in the formulation of norms of human conduct in a given prescribed form
through a given prescribed process. Legislation includes Acts, Statutes, Codes,
Ordinances, Rules, Regulations, Bye-laws, Orders, Directions, Notifications, etc. All
these forms of legislation are the most important sources of law because these are
precise and certain. These are easily accessible. The sections, clauses, sub-clauses,
paragraphs of legislation are simple to be used.

In Common Law legal system, judicial precedents constitute a very important and
authoritative source oflaw. The term 'judicial precedent" refers to a previous decided
case of an appellate court (like, High Courts and Supreme Court) which is, or may
be, taken as an example or rule for subsequent cases or by which some similar acts
or circumstances may be supported or justified. In short, it means the use of past
decided cases as guides in the moulding of future decisions. The authority of precedent
lies in the power exercised by appellate courts. If the appellate courts are not
enjoying authority, then the authority of judicial precedent would be absent. But in
Civil Law legal systems (like, Russia, France, Germany, Italy,Japan and La~ American
11
What is Law? What is
countries), decisions ofthe highest court does not enjoy the authority. Thus, those
International Law?
judicial decisions are not the source oflaw.

Custom is the oldest source of law. Before the advent of legislation and precedent,
custom was the most important source of law. Even though today the scenario has
changed, custom remains to be an important source of law. Custom means uniform
practice of the people under like circumstances. Certain practices are accepted by
the people as good or beneficial and they go on practicing them which, in course of
time, acquire the force of law. It is, however, not any practice that qualifies to
become a legal custom, like wearing black clothes at funerals.

To become a source of law, a practice must satisfy five essentials. First that the
practice must be oflong standing. Single day practice would not make that practice
a custom. Second, the practice must be continuous and certain. Continuous practice
is an important factor here. Certainty of practice is also important. Practice should
not be vague. Third, the practice must be reasonable one, not unreasonable.
Reasonableness of a practice is tested according to the time when the practice
started, not according to the contemporary time. Fourth, the practice must not be
against any legislation or statute. Even if the practice is very old, yet it must not
oppose legislation. Fifth, the practice is compulsory for people in a particular given
set of circumstances. People are obliged to act according to the expected practice
in the given circumstances. If people practice without such feeling of obligation, it
would not become custom. For example, the practice of presenting roses to beloved
ones on Valentine's Day can be a custom only if such present is made with the
obligatory feeling. If one is necessarily obliged to present roses on that day, then it
would be a custom, otherwise not.

Morals are not authoritative sources oflaw. Those are unauthoritative sources. Courts
are not bound by moral norms. However, Courts may be influenced by moral norms
or principles. The moral norms are abstract, not precise and concrete. This is the
reason why moral norms are not binding. Mora"!norms lack the backing of the State.

Equity rules are also not binding as authoritative source. 'Equity' is a combination of
morals and law. Morals have a great influence on equity norms. The main ingredient
of equity norms is conscience. You might have heard of some of the famous equity
principles, like, 'he who comes to seek equity must come with clean hands', and 'he
who seeks equity must do equity'. For example, a party seeking specific performance
of an agreement for the transfer of land may be refused that equitable remedy by
applying equitable principles as source of law if it is found that he has acted improperly
in relation to that agreement (i.e.. does not have 'clean hands'), such as by denying
its existence in previous court proceedings.

Sometimes, the opinion of legal experts and eminent text book writers on law work
as a source of law. In all the mature legal systems, they influence and mould the law.
Although there is no sanction of the State behind them and there is no binding force
of this source, this source is consulted by the Courts and is, sometimes, applied by
them. For example, Pollock is regarded as an authority in Contract Law. Chalmers
is regarded as an authority in Negotiable Instruments law. Oppenheim is regarded
as authority in international law. In international law, new situations and problems
constantly arise. The jurists express their opinions on such problems and in many
cases they are followed by Courts and applied as source of law.

12
 What is Law and its
Self Assessment Question Role in Society?
How is a Country's
3) What are the main sources of Law?
Legal System
Organised?

1.7 HOW DO THE LEGAL SYSTEMS OF

SOUTH ASIA WORK?
If you start getting an understanding of actual working of South Asian legal systems,
you would be appreciating the above discussions in a better way. It must be stated
here that the legal systems of South Asia bear a common basis. This basis has
different methods of expression. Let us see the some of the legal systems of South
Asia.

1.7.1 Bangladesh
In the People's Republic of Bangladesh, all laws derive their existence from the
Constitution of the country. The Constitution is regarded as the solemn expression
of the will of the people. The people of Bangladesh adopted, enacted, and gave to
themselves their Constitution on 4th November, 1972. This Constitution is the supreme
law of the Republic. Any other law which is inconsistent with the Constitution shall
be declared void.

The Parliament of Bangladesh has a very important role in law making process. The
legislative powers of the Republic are vested in the Parliament. Moreover, Parliament
can delegate its law making power to any person or authority. Every proposal in
Parliament for making law is made in the form of a Bill. When the Bill is passed by
Parliament, it is presented to the President for assent. When the President gives his
assent, the Bill becomes law and is called an Act of Parliament.

When the Parliament is dissolved or is not in session, the President of Bangladesh

possesses the power to issue Ordinance, which is also law for the whole country.
Such Ordinance has to be laid before Parliament for its approval. This approval has
to be taken at the very first meeting of the Parliament following the promulgation of
the Ordinance, unless it is repealed.

The Supreme Court of Bangladesh can also lay down law for the country by its
judgments. The Supreme Court has been made a court of Record. It enjoys the
power to punish for contempt of Court. The Supreme Court comprises the Appellate
Division and the High Court Division. The Chief Justice, and the Judges appointed
to the Appellate Division, sits only in that division and the other Judges sit only in the
High Court Division. The law declared by the Appellate Division is binding on the
High Court Division and the law declared by either division .of the Supreme Court
is binding on all Courts subordinate to it.

Local governments in every administrative unit of the Republic are also given power
to frame rules, and bye laws according to the prescribed directions of the Parliament.
The executive authorities can also frame rules, and orders but the power is subject 13
What is Law? What is to overarching control of the Parliament. The people's custom is also given a prominent
International Law?
place, but it must not also conflict with any express provisions of the Acts of Parliament.

1.7.2 Bhutan
Bhutan is a land-locked country. Its political system has developed from an absolute
monarchy into a constitutional and democratic monarchy. In 1999, the fourth king of
Bhutan created a body called the Council of Ministers (Lhengye Zhungtshog). The
'Druk Gyalpo'(King ofDruk Yul) is Head of State. The executive power is exercised.
by the Council of Ministers headed by the Prime Minister. In 2008, the first general
elections took place in Bhutan.

The Constitution, of Bhutan was adopted on 18 July 2008. This Constitution is the
supreme law of the country. It has thirty five articles and four schedules. The Supreme
Court is the guardian of the Constitution.·

The Supreme Court was established after the coming into force of the new Constitution.
It is the highest court of the land. The next in hierarchy is High Court. The judgments
of these Courts enjoy high respect and binding authority. A comprehensive codified
law, called the Supreme law (Thrimzhung Chhenmo), covers almost all civil and
criminal matters. This is the basis of all the subsequent laws enacted in Bhutan.

The Parliament of Bhutan is vested with legislative powers. It consists of the 'Druk
Gyapo', the National Council and the National Assembly. A Bill passed by Parliament
comes into force upon the assent of the Druk Gyapo. Money Bills and fmancial Bills
originate only in the National Assembly whereas any other legislative Bill may originate
in either House. A Bill is passed by a simple majority except in the case of joint
sitting.

The King exercises substantial powers and is not answerable to any Court of law.
Even the Parliament can not make a law to change the King's powers except through
a National Referendum.

Religious practices have given birth to a number of customary practices. They have
been enjoying high status in the legal system also. But they should not come into
conflict with any law passed by the legislature.

1.7.3 India
India is a socialist, democratic, and secular republic. In India, the Constitution is
regarded as the supreme law. The people of India adopted, enacted and gave to
themselves their Constitution on 26th of November 1949. It came into force on 26th
January 1950. It is a comprehensive document originally containing 395 Articles. You
might be surprised to know that it is the bulkiest Constitution in the whole world.
Besides dealing with the structure of Government, it makes detailed-provisions for
the rights of citizens and for the principles to be followed by the State in the governance
ofthe country.

As India is a federal State, the Parliament as well as State legislatures enjoy the
powers to make law in their respective spheres. However, the Union Parliament is
more powerful than the State legislatures in making law. The Parliament is composed
of the President of India and two Houses, namely Council of States and the House
of the People. The proposal to make law is known as Bill. A Bill may originate in
either House of Parliament. It has to be passed in both the Houses of the Parliament.
14
 What is Law and its
Once it is passed, it becomes an Act of Parliament. Thereafter, the Act has to take
Role in Society?
the assent of the President to finally become law. This law has to be notified to How is a Country's
become operational. The same process is followed at State (provincial) level. There, Legal System
the Act passed by the State legislature has to take the assent of the Governor of the Organised?
State.

You must also know that the President of India also enjoys legislative powers when
both the Houses of the Parliament are not in session and the circumstances exist for
immediate legislative action by the President. Such law is called 'Ordinance'. It has
to take the assent of both the Houses of the Parliament to be alive. If the assent is
not granted, it would be a dead law. Similarly, the Governor of a State enjoys similar
powers in the State to promulgate Ordinance.

The law declared in the judgments of the Supreme Court is binding on all Courts in
India. Twenty one High Courts also enjoy similar 'powers in their respective territorial
jurisdictions. These Courts are Courts of Record. The legal system is dependent
upon the proper and efficient delivery of justice by these Courts. The Supreme Court
enjoys original, appellate, writ, extraordinary, and advisory jurisdictions. The High
Courts enjoy appellate, writ, and extraordinary jurisdictions. Some High COlIliS,like
Delhi, Mumbai, Chennai, and Kolkata enjoy original jurisdiction 'too. Original
jurisdiction means that jurisdiction in which a matter may go at the first instance in
that Court.

The Parliament also delegates its legislative powers in the hands of executive and
autonomous bodies. For example, a University may frame rules for its functioning.
The administrative authorities may frame rules, orders etc. to supplement the Act
passed by the Parliament. The local authorities, like Village Panchayats and Municipal
Corporations have been given Constitutional status and are empowered to make
rules in their respective areas.

Custom also plays a very important role in India's legal system. The personal laws
of different communities are based on people's customs. Mercantile customs are also
recognized by Courts in India. The customs of tribal communities are also recognized
by Courts. However, custom and law passed by appropriate legislature must not
come into direct conflict with each other. You should know that in such a case, the
law enacted by legislature would prevail.

1.7.4 Maldives
Maldives is an island country in the Indian Ocean. It is the smallest Asian country
in terms of both population and area. The Constitution of Mal dives was adopted on
7 August 2008. It has 308 Articles and 3 Schedules. The Constitution establishes a
Presidential, Democratic, and Islamic Republic in which the President is the Head of
the Government. The President is directly elected by the people on the basis of
universal and secret ballot. Non-Muslims cannot vote.

All legislative power in the Maldives is vested in the People's Majlis (parliament).
The Majlis cannot pass any law which contravenes any tenets ofIslam. Every Bill
passed by the People's MajIis is presented for assent by the President within 7 days
from the date of passing and when President gives assent, it becomes law. Every Bill
assented to by the President is published in the Government Gazette on the day of
assent.

15
What is Law? What is The judicial power is vested in the Courts. The Supreme Court and the High Court
International Law?
are Courts of record and their judgments are binding on all lower courts. The
Supreme Court is the [mal authority on the interpretation of the Constitution, the law,
or any other matter dealt with by a court of law.

1.7.5 Nepal
Nepal is a federal and democratic Republic. The Constitution is the fundamental law
of Nepal. Any law inconsistent with it shall, to the extent of such inconsistency, be
void. On January 15,2007 a 328-member interim Parliament, including 83 Maoist
representatives and other party representatives, was constituted. The first sitting of
the Parliament unanimously endorsed an interim Constitution, which replaced the
Constitution of 1990. This Interim Constitution has to give way to the Final Constitution
to be drafted by the Constituent Assembly by the year of 20 I O.

.Nepal held its historic Constituent Assembly (CA) election on 10April, 2008. Primarily
mandated to draft a new Constitution of Nepal, the CA also serves as a Parliament.
Before this arrangement, there was bi-cameral legislature, namely, House of
Representative (lower house) and National Assembly (upper house). But now
Constituent Assembly works as a Parliament. So there is no upper house and lower
house at present. Any CA member may introduce a proposal to enact law in the form
ofa 'Bill'. But Money Bill and a Bill concerning the Nepal Army, Armed Police
Force, Nepal Police as well as security body shall be introduced only as a Government
Bill. If the Bill is passed, and it receives the assent of the President, it becomes law.

The Supreme Court of Nepal is the apex court in the judicial hierarchy. All Courts
and judicial bodies, other than the Constituent Assembly Court (this court is constituted
only to try the election petitions of the elections of CA), are subordinate to Supreme
Court. This Court is the final authority to interpret the Constitution and the laws in
force.

Nepal has 14 zones. In each zone, there is one Appellate Court. Appellate Court
. . decides the appeals from district Courts and other tribunals. However, the principles
of law laid down by these Courts are not binding. Thus, the principles of law
affirmed, upheld, overruled by the Supreme Court has binding authority all over
Nepal.

Custom has played a vital role in the law making process in Nepal. For example,
the Interim Constitution accepts that the cow is the national animal of Nepal and cow
and ox killing is the serious crime. Prohibition of cow and ox-slaughter has been a
customary practice in Nepal. Similarly, bigamy is prohibited, but polyandry is permitted
in some tribal communities, since they practice this system from the very beginning.
Incest isa very serious crime for Hindu Brahmins, but it may be permissible in the
tribal and Muslim community,

1.7.6 Pakistan
The Islamic Republic of Pakistan recognizes its Constitution as the supreme law of
the land. The first Pakistani Constituent Assembly was elected in the year of 1947
and after nine years in 1956, adopted a short-lived Constitution. The present
Constitution was enacted and adopted on 12 April 1973 and came into effect on 14
August 1973.

16
 The Constitution provides for Majlis-e-Shoora (parliament) consisting of the President What is Law and its
Role in Society?
and two Houses. The Houses are known respectively as National Assembly and the How is a Country's
Senate. The Provinces have their own legislative bodies. The Parliament and the Legal System
Provincial Legislatures have been designated separate areas on which these bodies Organised?
can make law. The Parliament can make law with respect to any matter listed in the .
Federal Legislative List or in the Concurrent Legislative List. The Provincial Legislature
can make law in any matter listed in State Legislative List. A Bill has to be, first of
.all, introduced in the appropriate legislature and when it is passed by the legislature,
it has to take the assent of the President to be called as an 'Act'. An Act of
legislature is enforced as law when it is notified.

The President of Pakistan may also make law by promulgating 'Ordinance' when the
Majlis is not in session. This Ordinance enjoys the same status as an Act passed by
the legislature. However, the Ordinance must get the positive support of the Majlis-
e-Shoora once it is in session.

The higher judiciary in Pakistan possesses powers to bind the subordinate Courts by
its judgments. The Constitution provides that if Supreme Court decides a question
of law or the opinion of the Court is based upon a principle of law or explains a
principle oflaw, it is binding on all other courts in Pakistan. Similarly, the judgments
of High Courts are binding on all courts subordinate to it. It means precedents of
these courts are binding as law.

1.7.7 Sri Lanka

Sri Lanka is a democratic and socialist republic. It accords highest place to the
Constitution in law making. The Sri Lankan Constitution was adopted on 16 August
1978. The Constitution establishes' a unitary model of State in which the Central
government is vested with all important powers oflaw-making. The country is divided
into administrative units. After l3th Amendment to the 1978 Constitution.provincial-
councils were established in nine provinces. Each of these nine provinces are
administered by a directly elected provincial council

The legislative wing of the State is known as the Parliament. It consists of 225
members elected on the basis of proportional representation by the people. Parliament
can make law related to national, provincial and concurrent interests. The legislative
proposals have to be made in the form of a 'Bill'. Ordinary Bills have to be published
in the gazette before its introduction in the Parliament. Urgent Bills do not have to
follow this procedure. The Bills have to be read at three stages and finally if it is
passed, it has to get the President's assent to be passed as ~law.

The President of Sri Lanka is very powerful as the country has Presidential system
of government. The President is not only the Head of the State, but also the head
of the government. He can promulgate Ordinance when the Parliament is not in
session. The Ordinance has the virtues of law.

The Supreme Court and the Court of Appeal of Sri Lanka are Courts of Record.
They possess the power to punish for its contempt. The Supreme Court is the highest
and final superior Court of Record. The Court of Appeal exercises appellatejurisdiction
for the correction of all errors in fact or in law which are committed by the lower
courts. The judgments of Supreme Court and Court of Appeal are binding on
subordinate Courts. So, those judgments are very important for you to understand.

17
What is Law? What is In Sri Lanka, customary practices also have great significance. For example, the
International Law?
religious practices of Buddhists are based on customary practices and are recognized
by higher courts. It is not the ancient Buddhist texts which are the basis of customary
practices, but the local customary rules that the Courts have accepted.

1~8 SUMMARY
• In this Unit, we discussed the meaning ofthe terms 'law', 'rules of-law', 'rules in the
nature oflaw', 'bye law', 'Ordinance', 'Act', 'Statute' etc. and how these terms
differ in meaning from other rules and nature's law, moral law etc. We also discussed
the role of law in the development of society. We discussed that a haphazard
development of society is not preferred; rather a regulated system of society is
preferred. Such regulation comes from an organized system oflaw, and institutions
to enforce the law, and personnel who administer law. The problems in the South
Asian region can be solved by using law as one of the several means.

• This unit also tried to co~prehend the process oflaw making and its sources. We
now know that the law making process is a very systematic process and various
people and institutions are involved in them. The role of the Constitution, legislature,
and the judiciary is very significant in this regard. We discussed even the power of
communities and groups to create customary law if they practice it for considerable
time. We got to understand the working ofthe legal systems of South Asian countries
of Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan, and Sri Lanka. The
working of these systems could give us a glimpse of the actual institutions and people,
and law which ultimately make up the system oflaw making and administration of
law.

1.9 TERMINAL QUESTIONS

I) What do you mean by the term' law'? Discuss also the process of making the law.

2) Describe the role oflaw in the development of society. How South Asian society
can grow better with the better use oflaw?

3) What are the sources oflaw? Discuss.

1.10 ANSWERS AND HINTS

Self Assessment Questions
I) Refer to Section 1.3

2) Refer to Section 1.4

Terminal Questions

1) Refer to Section 1.3 and 1.5

2) Refer to Section 1.4

3) Refer to Section 1.6

18
 What is Law and its
1.11 GLOSSARY Role in Society?
How is a Country's
Legal System
Constitution The highest law of the land containing values and principles
_Organised?
of the socio-economic-legal system.

Act A piece of law passed by the legislature.

Customary law It is people's practices which may mature into custom

after a given period, and following a consistent, and uniform
practice. It should be not against public policy and statutory
law

Precedent A judgment containing new legal principle laid down by

higher Courts

1.12 REFERENCES AND SUGGESTED

READINGS
1) A bare reading ofthe Constitution of your country.

2) Any Act passed by your Parliament.

3) A judgment of your Supreme Court.

19
 ~
UNIT 2 WHERE DO WE FIND
INTERNATIONAL LAW? HOW
IS IT MADE AND HOW DOES
IT FUNCTION?
Structure
2.1 Introduction
2.2 Objectives.
· 2.3 What are the Basic Concepts ofInternational Law?
2.4 What are the Sources of International Law?
o

2.5 What is the Meaning of Treaty Making and its Adoption?

-v-,

2.6 What is Customary International Law?

· 2.7 What are General Principles of Law?
2.8 Summary
2.9 ' Terminal Questions'
2.10 Answers and Hints
2.11 Glossary
2.12 References and Suggested Readings

2.1 INTRODUCTION
In this unit, we shall discuss about international law. International law has an important
significance,especiallyin the life of nations,and internationalinstitutions.Even individuals
· are not left untouched by international law. Recent advances in science, technology
and industry have brought to the fore one important fact- that no nation, howsoever,
big or small, can afford to lead an isolated life.

In view of this, we would try to understand the definition of international law. Some
basic concepts of international law, like the meaning of the term 'sanctions' in
international law, the subjects of international law, and the meaning of some terms
closely resembling international law.

Then, we ~ould discuss about the sources of international law. The role of international
agreements, treaties, accords, Covenants, Charters, Statute, practices of nations
would be examined. Can we find international law in principles of law which are
common to many legal systems? Treaty making and its adoption has become an
important method of international law making. We will learn in this unit the process
of making treaties and the effect of signature and adoption etc.

Customary International law and General Principles of law are also other very
important sources of law. The practices of nations, whether at a local or regional or
international level, matter a lot in the formation of international law. General principles
of law, like the principle that if a matter has been finally settled by the competent

20
authority, it should be not agitated again and othrt similar principles play an important Where do We Find
International Law?
role in the making of international law. We shallleam the sources oflntrrnationallaw
How is it made and
and its functions in more details in this unit too. How does it Function?

2.2 OBJECTIVES
After reading this unit, you should be able to:

• know the basic concepts of international law;

• describe the sources of international law;

• discuss the process of treaty making and its signature and adoption; and

• . know customary international law and general principles oflaw.

2.3 WHAT ARE THE BASIC CONCEPTS OF

INTERNATIONAL LAW?
We will learn some basic concepts of international law here. You would ask the
question 'what can be understood by the term international law?' International law
is that branch of law which concerns itself primarily with the conduct of nations and
international organizations, and in some cases with the conduct of individuals. You are
aware that there are hundreds of international organizations working all over the
world, like Asian-African Legal Consultative Organization, International Committee
of the Red Cross etc. National law concerns primarily with the conduct of individuals.
So, the law made in India would apply primarily to the conduct of individuals in
India.

Further, you would ask the question 'is there any analogy between national and
international law?' National law is dependent upon several basic factors, like existence
of a recognized body to enact or make law, a hierarchy of courts with compulsory
jurisdiction to settle disputes and an accepted system of enforcing those laws. So,
the legislature, executive and judiciary are necessary elements of domestic legal
order. However, you can not draw an analogy between domestic legal order and
international legal order. International law is not a product of international legislature,
because there is no international legislature as such. There is no hierarchy of courts
over there. You might have heard the existence of International Court of Justice
located at The Hague, but it decides a case only when both sides to dispute consent.
The Court cannot also ensure the compliance of its decisions. It means that there is .
no international executive.

International law is mainly made up of treaties, international agreements, Charter

which creates rules binding on signatory countries. It is also composed of international
customary practices, which are basically practices of the countries recognized by the
international community as laying down pattern of binding conduct. So, the legislative
activity is not centralized, rather it is decentralized. It is the countries which make
international law. They are the legislature, and they are the executive. There is although
not a hierarchy of Courts in international legal order, yet countries can decide the
name of judicial forum to resolve their dispute and it could be resolved by the
application of international law. The question of 'sanctions' comes here.

21
What is Law? What is Sanction means coercive 'element in law. Is there any coercion in international law?
International Law?
Although unilateral use of force in international law is generally not allowed, yet there
are rules of international law which are in the nature of coercion. For example, the
United Nations can take coercive measures in several circumstances. Further, the
judgment of International Court of Justice is binding on the parties to a dispute, even
if the judgment is not favorable to one party. Also, the rule that in the case of breach
of internationalrule oflaw by a country, that violating country has to give compensation
goes to show that the element of coercion is there. These days, individuals can also
be punished by the application of international law in some cases. Can it be said that
individual is also a subject of int~rnati~nal law?

The term 'subject of international law' means an entity which possesses international
personality. If' A' is the subject of international law, it'means that' Po: is an internatiohal
person in the eyes of international law. What is the status of 'Nation-States' in the
eyes of-international law? What is the status of 'international organizations' in
international-law? You can appreciate here the fact that Nation States do possess
international personality in the sense that these entities have been given rights, and
imposed duties and they possess the capacity to enforce the rights. Similar position
exists in the case of international organizations. This position was also made clear by
the International Court of Justice in the year of 1950 itself (Reparation for injuries
suffered in the services of United Nations case).

As far as the position of individual is concerned, there is a perceived change in the

status of individuals enjoyed before hundred years from today and now. After the
First World War, human civilization across the globe felt the need of protecting
human being from gross human rights violations which could threaten international
peace and order. Now, many international human rights agreements and treaties
accord individuals the capacity to move international institutions on their own. For
example, Optional Protocol to the International Covenant on Civil and Political
Rights, 1966provides individualswith the right to petition the Human Rights Committee
in case of violation of any of their civil and political rights by the Nation State. Similar
other treaties in the field of international human rights are there, like International
Convention on Elimination of All Forms of Racial Discrimination, 1966; International
Convention for Settlement ofInvestrnent Disputes, 1966; International Tribunal for
the Law of Sea, 1982; Convention on the Elimination of Discrimination Against
Women, 1979, Convention on the Rights of Child, 1990, Convention on the Rights
of Disabled, 2008 etc. All these examples would not show that individuals have
become a full fledged international person. In a limited sense only, you can say that
individuals enjoy international personality.

Some more terms need to be explained here to you because these terms are very
close and therefore may cause problems in understanding. For example, the terms
'global law', " 'foreign law', 'international law', and transnationallaw' are apparently
very close to each other in its meaning. Therefore, you should be able to distinguish
international law from either global law or foreign law or comparative law or
trahsnationallaw. The term 'globallaw' is commonly used as a loose reference to
> a mix of foreign: comparative, international and transnationallaw. Thus this term is
having wide meaning. 'Foreign law' typically refers to the internal law of States other
than our own. International law, in contrast, has traditionally been viewed as goveming
relations between States. But since the advent of non-State actors (e.g. international
institutions, terrorist groups, non-governmental international organizations) on the
international scene, it has been more aptly described as any form of law that is
22
 Where-do We Find
supranational. 'Comparative law' is more difficult to define. However, it can be said
International Law?
in simple words that the domain of comparative law does not differ much from that How is it made and
of foreign law. 'Transnationallaw' is used to designate an amalgam of legal relations How does it Function?
and instruments that, while involving private citizens directly,cross national boundaries.
Transnational contracting is a good example.

Self Assessment Question

1) What do you mean by the term International law? How it is different from
National law?

2.4 WHAT ARE THE SOURCES OF

INTERNATIONAL LAW?
It would be very meaningful to know about the sources of international law. Where
can you find international law? If you know the location of international law, then it
would be easy for you to apply it according to your wishes. If you do not know the
location or source/s of intemationallaw, it would be-rather difficultto apply international
law. So, the sources have a close linkage with the convenience in application of the
rules of international law. '

In this sub-unit, we would know the exact location or source of international in our
times. There are certain sources, which are called 'primary sources' and there are
others which are called 'subsidiary sources'. The primary sources are international
agreements or treaties, international customary practices, and general principles of
law recognized by civilized nations. Subsidiary sources are judicial decisions and the
teachings of the most highly qualified publicists of the various nations. These locations
of international law are recognized in Article 38 of the Statute of International Court
of Justice. As you know, International Court of Justice is the principal judicial organ
.of the United Nations.

Out of the several primary sources, treaties or international agreements are the most
important one. An international treaty is one of the modes to express the agreement
of States. The effect of a treaty in the formation of international law depends on the
nature of treaty concerned. Some treaties are agreed by a large number of countries
and thus create general norms or rules of universal nature. If a treaty is agreed by
more than two countries, it may be called 'multilateral treaty'. Such multilateral treaty
may create general norms or may lay down rules of universal nature. In that case,
these treaties would be directly called as source of international law for those countries
which have signed or adopted the treaty as also for other countries which are not
parties to it. You can give the example of the Charterofthe United Nations which
is having almost all countries of the world as the parties to it. This Charter which is
a treaty is a"direct source of international law. Other kind of treaties might be having J

limited number of parties or only two parties. A treaty, in which there are two
countries which have agreed, is called bilateral treaty. These treaties are having
23
What is Law? What is
limited scope and therefore these are not directly a source of international law. For
International Law?
those signatory countries only, these treaties would be binding.

International customary practices are the oldest source of international law. The
Statute of International Court of Justice lays down that such international custom
which are evidence of a general practice accepted as law may be source of international
law. So there are several conditions which are laid down in the Article to qualify a
practice as international custom. Thus the Statute contains broadly two requirements
for the existence of international custom, namely: first, there should be a sufficiently
uniform practice; and second, the belief that such a practice is obligatory. We would
discuss these two elements when we would separately discuss international custom.

The' general principles of law recognized by civilized nations' comprise the third
category of rules which the International Court of Justice must apply in accordance
with Article 38 of its Statute. The phrase' general principles of law recognized by
..civilized nations' means principles so general as to apply within all systems oflaw that
have achieved a comparable state of development. This is what the reference to
'civilized nations' implies. The principles oflaw are to be looked for in municipal law
to know whether these are accepted and recognized by many countries or not. Some
of the examples of those kinds of principles are: res judicata (a thing or matter
settled definitely by a final judgment of the court of competent jurisdiction should not
be reopened), estoppel (a claim must not be opposite to its previous act, attitude),
prescription (a claim to a right founded upon enjoyment of property) etc.

Out of the subsidiary sources of international law,judicial decisions can be of immense

importance. You might be surprised to know that Article 59 of the Statute of
International Court of Justice provides that the decisions of the Court has no binding
force except as between the parties and in respect of the case under consideration.
Does this mean that the decisions of the Court have no importance other than the
parties to the dispute? No, the decisions of the Court enjoy practically much
importance. The Court tries to follow its previous judgments and to insert a measure
of certainty within the process. Thus, while the doctrine of precedent as it is known
in the common law, whereby the rulings of certain courts must be followed by other
courts, does not exist in international law, one still finds that countries in disputes
quote judgments of international courts as authoritative decisions. The Interriational
Court of Justice also gives great importance to its own earlierjudgments. For example,
the judgment of the Court in Anglo-Norwegian Fisheries case (1951) has been
given greatest respect.

Other subsidiary means is termed as 'the teachings of the most highly qualified
publicists of the various nations' . Academic writings have a useful role to play in
stimulating thought about the values and aims.of international law as well as pointing
out the defects that exist within the system, and making suggestions as to the future.
When countries present their claims before international courts, writings of the leading
juristic authorities are quoted as a source of international law. Similarly, national law
officials give their opinions to their governments on the basis·of the writings of the
leading jurists also. However, you should be clear that the importance of this source
is decreasing on account of the rise in volume of other sources, like treaties, international
custom, general principles of law, and judicial decisions.

24
 Where do We Find
Self Assessment Question International Law?
How is it made and
2) What are the main sources of International law? How does it Function?

2.5 WHAT IS THE MEANING OF TREATY

MAKING AND ITS ADOPTION?
You have seen earlier that treaties are the most important and modem source of
international law. Some important and well known examples of treaties are: Treaty
of Versailles, Nuclear Non-Proliferation Treaty, General Agreement on Trade and
Tariff (GATT), Geneva Conventions, Charter of the United Nations, Rome Statute,
and Optional Protocol to the Civil and Political Rights. The term 'treaty' is defined
as an agreement whereby two or more countries/international organisations establish
or seek to establish relationship between them governed by international law. The
object of the treaty is to impose binding obligations on the countries which are parties
to it. The derivation of the rule of binding obligation is from a legal maxim 'pacta sunt
servanda' which means that obligations taken up by the parties to an international
treaty must be observed in good faith. Countries all over the world enter into treaty
relationship everyday. Several thousands of treaties are in force now. -'.
In the making
of the treaties, the role of free consent of the parties to-the treaty is of vital importance.

It is one of the principles of treaties that the consent of a country to be bound by

a treaty should be 'free'. If the consent of a country has been obtained by fraud, or
by corruption of a representative of a country, or by coercion of a country or under
a mistake, the treaty in question shall not be binding on the parties. Presence of
fraud, corruption, coercion, or mistake vitiates the binding character of the treaties.
Such treaties can not be source of international law. Thus, many basic principles
should be adhered to by the parties when they are contemplating the negotiation of
the treaties.

Negotiation is the first step in the making of treaty. In a bilateral treaty, both parties
negotiate the terms of the treaty. On each and every term, there is a lot of discussion.
It takes a long time to finalize the terms of the treaty. When the terms of 'the treaty
are successfully negotiated and finalized, then the next step is adoption of the text of
the treaty by the parties. The parties, while adopting, confirm that the text of the
treaty is final and would become binding by their signature and exchange of instruments
(treaties) and in some specified cases, by ratification. These are further third, fourth
and fifth steps in the making of treaty.

In a multilateral treaty, the representatives of the country begin the treaty process
with preliminary negotiations through an international conference. Maritime nations of
the world first met at an international conference in 1974, for example, to develop
an International Law of the Sea. Their initial discussions continued for the next eight
years. In the international conference, the representatives of the countries must possess
the authority letter to negotiate on behalf of their countries. Diplomats, ministers,
Head of State, Head of government of the countries do not require authority letter.
25
What is Law? What is But persons authorized by countries other than diplomats, ministers, Head of States,
International Law?
Head of Governments need to get a document called "full powers". This full power
instrument facilitates that conference developments would be acceptable to the
governments that will one day have to decide whether to ratify the final draft of the
treaty text negotiated by their representatives.

Once the text of a multilateral treaty is successfully negotiated, it needs to be adopted.

Adoption of the text of the treaty is a very important step in the making of treaty.
The adoption takes place by the consent of all the participating States. However, in
case of a treaty at an international conference, adoption of the text of treaty takes
place by the vote of two-thirds of the representatives of the countries present and
voting. The text of the treaty is regarded as authentic and definitive by signatures of
representati yes of the States. Till the adoption of the text of treaty, the participating
countries do not give their consent to be bound by the provisions of the treaty. Once
the text of the treaty is adopted, the next steps become important.

Consent to be bound by the provisions of the treaty may be given by 'signature',

'exchange of instruments', 'ratification', 'acceptance' or 'approval'. Where a treaty
is not subject to exchange, or ratification, a treaty comes into force on the signature
by the signature qf the representative of the State. If a treaty requires exchange or
ratification, the treaty comes into force after the completion of such .steps. Where a
treaty is subject to ratification, the signature only implies that the representatives have
agreed upon a text and are willing to accept it and refer it to Government which have
a competency either to approve it or reject it.

Ratification is an important step. When a treaty signed by the representatives of the

countries is confirmed by the countries, the act of confirmation is called ratification.
<The nation-parties become bound by the treaties after ratification. Ratification is an
internal procedure determined by the intemallaws and usage of each country. In
India, the President ratifies the treaty on the advice ofthe Union Cabinet. Thus, this
act of ratification is an executive act in India. But in the United States of America,
a treaty must be ratified by the President with the advice and consent of the Senate,
which is the upper House of federal legislature.

Accession is the traditional method by which a country which is not a signatory to

the treaty becomes party to it. This step is not a mandatory step in the process of
treaty making. However, this facility is generally provided for in the text of the treaty
so that apart from original signatory countries, other countries may become the
parties. It depends upon the presence of the conditions of accession into the text of
the treaty. Ifa treaty contains no provision concerning accession, a country may only
accede with the consent of all the countries parties to the treaty. When a country
becomes a party through accession, ratification is not required. Normally, accession.
is open only in multilateral treaties.

The last important step in the making of the treaty is called 'provisions regarding
method of entry into force'. A treaty enters into force in accordance with the provisions
of the treaty. Some treaties enter into force immediately after the signature. But the
treaty in which ratification is necessary enters into force only after they have been
ratified by the prescribed number of parties to treaty. For example, the text of the
Nuclear Non-Proliferation Treaty is finalized and adopted. But it is not coming into
force because the-terms contained in the treaty for its entering into force are still not
satisfied.

26
 Where do We Find
2.6 WHAT IS CUSTOMARY INTERNATIONAL . ":; International Law?
How is it made and
LAW?" How does it Function?

It is very useful to understand the role of customary international law, especially in

the context of international humanitarian law, as a source material for the application
of international law. For example, non-disclosure of information relating to the work
of International Committee of Red Cross (ICRC) in the possession of an ICRC
employee is a customary practice recognized by international law. You have already
understood the essential components, of international custom in the preceding sub
unit. The first essential requirement for a custom is the presence of a practice. The
actual practice engaged in by the countries has to be examined first. While examining
actual practice of the countries-the duration, consistency, uniformity and generality
have also to be seen. As far as the duration is concerned, there.is no rigid time
element for a practice to be observed. Some practices take much time to mature into
custom, while some others take less time. For example, the practice of delimiting
exclusive economic zone (EEZ) as a maritime belt became a custom in a very short
span of time.

Regarding consistency and uniformity, you should know that a practice must be
consistently and uniformly observed. In order to deduce the existence of'customary
rules, it is important that the conduct of countries should in general, be consistent with
such rules. Instances of conduct of countries inconsistent with a given rule should
generally be treated as breaches of that rule and not as indication of the recognition '
of a new rule. For example, the practice of non-intervention in the internal affairs of
a country has been consistently observed. If not observed, it does not indicate
recognition of a new rule; rather it is treated as a breach of the practice.

Complete uniformity of practice is also not required. However, there must be substantial
uniformity. For example, if small fishing vessels pursue their calling honestly, there is
a substantial uniformity of practice that they are not captured by belligerent countries
in times of war. Such practice may be evident from the laws and practices of the
country, treaties, and writings of publicists and decisions of the court'.

Apart from consistency and uniformity, practice should be also repetitively followed]
by the countries. In other words, the practice must be generally followed by numerous
countries. When a customary practice is in dispute, it must be proved by .satisfactory
evidence that the alleged rule is of such a nature, and has been so widely and
generally accepted, that it can hardly be supposed that any civilized country would.
repudiate it. It means that if a practice is observed only by a limited number of
countries, it would not transform into custom.

To prove a practice before the Court of law, you can obtain the evidence from a
number of sources about the factual materials, like duration, consistency, uniformity,
and generality. The obvious way to find out how countries are behaving is to read
the newspapers, consult historical records, listen to what governmental authorities are
saying and peruse the many official publications. There are also memoirs of various
past leaders; official manuals on legal questions, diplomatic interchanges and the
opinions of national legal advisors. All these methods are valuable in seeking to
determine actual practice of the countries.

Most important element in proving a custom before any international court is a

psychological element or mental element of practice. It is not enough that you prove
27
What is Law? What is the existence of practice, duration of practice, consistency, uniformity and generality
International Law?
of practice. You would have to prove further that while observing a particular practice,
the countries felt psychologically legally bound to follow the practice in such a way.
Thus, it becomes necessary to consider mental state of the country while observing
a practice. Is the practice of a country regarded as merely moral or political or legal
act? If the practice is regarded as merely moral or political act, then the practice
lacks the required mental element necessary to prove custom. But if the practice is
psychologically regarded as legally binding, then the practice fulfills the mental element
of custom.

For example, in the decided case of North Sea Continental Shelf Cases, it was
held by the International Court of Justice that the requisite psychological element in
the practice of delimiting continental shelves by adopting equidistance formula was
absent. Continental shelf is a part of the maritime zone of a country. Similarly, it was
again held by the court that the practice of abstaining from instituting criminal
proceedings by the country which citizens are killed in cases of maritime collisions
on high seas lacks the requisite mental element. This case is very famous and is
known as Lotus case. In that case, France alleged that there existed a rule of
customary law to the effect that the flag country of the accused (France) had exclusive
jurisdiction to try the persons charged with murder on the high seas and accordingly
the national state of the victim (Turkey) was barred from trying him. To justify this,
France referred to the absence of previous criminal prosecutions by such countries
in similar situations and from this deduced mental element in the practice which
therefore became a legal custom. However, the Court rejected French contentions.

Lastly, you must know that customary international law may be also regionalor even
local. Regional customs were recognized by the Court in the Asylum Case. In that
case, the International Court of Justice discussed the Colombian claim of a regional
custom of granting diplomatic asylum by unilaterally qualifying the nature of the
offence cominitted by the asylum seeker. Colombia claimed that this practice was
peculiar to the Latin American countries. Although Colombia could not prove this
practice before the Court, yet the Court recognized the possibility of regional custom.
It held that the party which seeks recognition of such custom must prove that the
custom is established in such a manner that it has become binding on the other party.
The court found that such a custom could not be proved because of uncertain and
contradictory evidence.

Local customs may also be successfully proved as a source of international law

before the court. In the Right of Passage over Indian Territory case, Portugal
claimed that there existed a right of passage over Indian territory as between the
Portuguese enclaves of Dadra and Nagar-Haveli. India objected to Portuguese
contentions and argued that no local custom could be established between only two
countries. But the Court rejected India's arguments and laid down a rule that if the
court was satisfied that there had in the past existed a constant and uniform practice
allowing free passage and that the practice was accepted as law by the parties, then
that local custom may be a source of international law.

2.7 WHAT ARE GENERAL PRINCIPLES OF

LAW?
Lawyers practicing international law usually disregard the vital furictions that general
principles of law may play in the decisions of international courts and tribunals. But
28
 Where do We Find
you must know that this is an important source of international law as recognized by
International Law?
Article 38 (1) (c) ofthe Statute of International Court ofJustice. Whenever Intemational How is it made and
Court of Justice decides a dispute, it may look up to this source if treaties or How does it Function?
customary practices are not applicable there. The Rome Statute establishing
International Criminal Court may also apply general principles oflaw derived by the
Court from national laws of legal systems of the world including, as appropriate, the
national laws of countries that would normally exercise jurisdiction over the crime,
provided that those principles are not inconsistent with this Statute and with intemational
law and internationally recognized norms and standards.

Areas in which general principles of law have been commonly applied are: rules of
procedure, evidence and the machinery of the judicial process. Examples of some
of the general principles of law recognized by civilized nations are: res judicata,
estoppel, prescription, principle of making reparations in case of violation of
international obligations, principle that no man would be a judge in his own cause,
equity principles, principle of pacta sunt servanda etc. The location of general
principles of law can be found in municipal legal systems. This basket of legal
systems of around 195 countries is very bulky. This source is therefore considered
to be as an inexhaustible reservoir of legal principles from which the tribunals can
enrich and develop international law.

How can you determine that a given principle of law recognized by one municipal
legal system would also be recognized by all nations? You do not have to bother that
much to see the legal systems and principles contained therein of all the legal systems
of the world. You may notice in due time that there are.certain common themes that
run through the majority of municipal legal systems. For example, Anglo-American
common law has influenced a number of countries throughout the world, as have the
French and Germanic systems. There are many common elements in the law of Latin
America, and most Afro-Asian countries have borrowed heavily from the European
experience in their efforts to modernize the structure administering the country. Those
common elements present in almost all municipal legal system could-be general
principles of law recognized by civilized nations. The term 'civilized nations' means
that if a country's legal system is modern and not tribal and it is a mature legal
system, it means the country is a civilized country for this purpose.

Let us see the application of some of these principles. In one case, the International
Court of Justice relied heavily upon the municipal law concept of the limited liability
company. The Court emphasized the relevance of rules of municipal law at intemational
level, particularly when there are no corresponding institutions of international law to
which the Court could resort. In another case, the principle of estoppel was applied.
The Court held that a State party to international obligation is bound by its previous
acts or attitude when they are in contradiction with its claims in the litigation. Thailand's
claim before the Court against Cambodia was contradictory to its previous acts and
attitudes. The Court stopped Thailand to claim a relief not in accordance with its
earlier acts.

The principle of resjudicata was applied by International Criminal Tribunal for the
Former Yugoslavia (ICTY) in many cases. The Trial Chamber ofICTY dismissed,
in one case, the Motion for reconsideration of Application for Separate Trial filed by
an accused because the matter had already been adjudicated. Similarly, in another
case, the tribunal held that the rule of res judicata would not be applicable if the issue
of the nature of conflict in Bosnia and Herzegovina was not finally settled by the
highest court of the tribunal, namely the Appeals Chamber. 29
What is Law? What is Principles of equity are also applied by international courts as general principles of
International Law?
law. Equity principles are used to mitigate the rigors of written rules of law by the
application of the principle offaimess and reasonableness. For example, in the~ann
of Kutch Arbitration between India and Pakistan in 1968, the Arbitral Tribunal
agreed that principles of equity formed part of international law and that accordingly
the parties could rely on such principles in the presentation of their cases. The
International Court of Justice in North Sea Continental Shelf Cases directed a fmal
delimitation between the parties -West Germany, Holland and Denmark - 'in
accordance with equitable principles' .

2.8 SUMMARY
• In this unit, we discussed the basic concepts of international law, like definition,
distinction and analogies between national and international law, differences between
international law and other law closely resembling international law, the position of
countries, international organizations and individuals. These concepts would help.
you to understand further concepts of international law.

• ,We also discussed the various sources of international law, like treaties, conventions,
customary practices, general principles oflaw recognized by civilized nations,judicial
decisions, and teaching of highly qualified publicists. The relative importance of these
sources is useful to understand. Intrernationallaw in a holistic prespective knowing
about the sources means knowing about the places where you can find international
law.

• We further discussed the process of making international law. Treaty making is a

combined result oflong negotiations amongst parties, adoption of the text ofthe
treaty, signature by the representatives of countries, exchange of instruments. We
learnt the requirement of ratification in some cases of treaty making. We also
discussed the possibility of making of international law by actual practices of the
countries (international customary law). The effect of general principles oflaw in
making of international law has also been examined in this unit.

2.9 TERMINAL QUESTIONS

1) Can you defme international law? What are the basic concepts of international law?
Discuss.

2) Discuss the various sources of international law. Would you suggest that customary
intemationallaw is very tough to prove before a court?

3) How is a multilateral treaty agreed to and how does it come into force?

2.10 ANSWERS AND HINTS

Self Assessment Questions
1) Refer to Section 2.3

2) Refer to Section 2.4

30
 Where do We Find
Terminal Questions
International Law?
How is it made and
1) Refer to Section 2.3 How does it Function?

2) Refer to Section 2.4

3) Refer to Section 2.5

2.11 GLOSSARY
Pacta sunt servanda: The obligations taken up by the parties to a treaty must
perform the obligations in good faith ..

Opinio juris Psychological element in the formation of customary

international law

Estoppel A party to a dispute would be stopped by the court to

make a claim before the court which is different from its
previous act or attitude.

Res judicata A matter finally settled by the court of final authority should
not be agitated again in the court of law.

Ratification It is a requirement to express the consent of the country

party to a treaty. It is an internal procedure of the country.

2.12 REFERENCES AND SUGGESTED

READINGS
1) Some multilateral treaties

2) Any judgment of International Court of Justice

31
 UNIT 3 WHAT IS nIL? WHEN DOES
nIL APPLY? HOW HAS nIL
DEVELOPED?
Structure

3.1 Introduction
3.2 Objectives
3.3 What is International Humanitarian Law (IHL)?
3.4 When does IHLApply?
3.5 How has IHL Developed in Buddhist Traditions?
3.6 How has IHL Developed in Christian Traditions?
3.7 How has IHL Developed in Hindu Traditions?
3.8 How has IHL Developed in Islamic Traditions?
3.9 Summary
3.10 Terminal Questions
3.11 Answers and Hints
3.12 Glossary
3.13 References and Suggested Readings

3.1 INTRODUCTION
In this Unit, we shall discuss about the definition of international humanitarian law
("IHL"). Definition ofIHL would demystify the doubts covering around this area of
international law. Is IHL a part of international law? This question would also be
answered.

The actual time of application ofIHL would also be discussed in this unit. Does it
apply during the times of peace or during any conflict or during specific type of
conflict? These answers are be very important to understand and develop a good
concept of IHL.

Finally, the development ofIHL would be discussed in this unit. The development has
stretched over thousands of years of human civilization. What have been the necessities
to develop these rules? For this purpose,_ we have divided the whole period of
development of IHL into three periods. One period deals with the development of
IHL up to mid nineteenth century because before mid nineteenth century, there was
no codification ofIHL. The rules ofIHL were developing on the basis of scattered
rules. Another period deals with the development of IHL during mid nineteenth to
mid-twentieth century. This period is separately dealt with because, in this period,
codification work of IHL started. The actual process of condification of rules of IHL
was a very important beginning. However, the real impetus to codification was given
after the two World Wars. After the Second World War, i.e., from mid twentieth
century, the most important phase of codification was started. This period stretches
from mid-twentieth century to our own times in twenty-first century.
32
 What is IHL?
3.2 OBJECTIVES When does IHL Apply?
How has IHL Developed?
After reading this unit, you should be .able to:

• know the definition of international humanitarian law;

• understand the time of application of international'humanitarian law; and

• discuss the development of international humanitarian law during early religious

traditions.

3.3 WHAT IS INTERNATIONAL

HUMANITARIAN LAW (IHL)?
You might have heard the popular saying, 'everything is fair in love and war'. It is
not the proper place here to discuss the fairness of matters in love, but we can
discuss the matters related to war. Can the opposite parties in war use any means
and methods of warfare or are there any limits? The answer to this question is
important to know because in war if parties are given freedom to use any means and
methods of warfare, then the all kinds of brutalities may also be committed which
may outrage the conscience of human civilization. If the persons who fight war,
become sick or wounded, can they still be the enemies to be worth fought against
or they should be rather given first aid so that they can recover and then fight for
their nation? If there is a naval warfare, and suppose the ship of one party is
wrecking inside the sea, can the fight still continue to finish the persons inside sea?
In other words, if some members of the parties to warfare are no longer participating
in the hostilities (because of sickness, or becoming wounded etc.), can it be allowed
to continue fighting against those non-participating members.? If the parties to warfare
adopt the use of weapons which, if used, would cause suffering beyond your
imagination and which use is too much disproportionate to the objective sought to
be achieved, would your conscience allow use of such weapons?

History of human civilization is replete with wars of all nature, local, regional, national,
and international Same is true of the brutalities committed during these wars. Wars
are the blots to humanity and involve brutal and arbitrary violence. Therefore, several
attempts have been made at all levels to make some rules of conduct even during
warfare. Those attempts have been instrumental in shaping the modem laws of
warfare. Law of warfare is given the new nomenclature, "international humanitarian
law" because in our times, wars have been declared illegal under international law.
Now-a-days, there are many examples of armed conflicts resorted to by the nations
which are not in the nature of war.

It is very difficult to define international humanitarian law in exact detail, yet the
following definition has been acceptable to many nations and jurists: 'International
Humanitarian Law is a branch of international law containing a set of rules which
seek, for humanitarian reasons, to limit the effects of armed conflicts. It protects
persons who are not or are no longer participating in the hostilities and restricts the
means and methods of warfare.' .

Thus, first part of this definition emphasizes the close linkage of international
humanitarian law with international law. It is not separate from international law.
International law includes international humanitarian law. In other words, international
33
What is Law? What is humanitarian law is a special branch of international law which deals with the rules
International Law?
of armed conflict! warfare. As you know that international law primarily deals with
the relations between nations and international organizations, similarly international
humanitarian law regulates the conduct of members of armed forces of nations and
international organizations. You might have heard that United Nations has the power
to create armed forces, which are called peace keeping forces. These powers of
these forces can be regulated during warfare by international humanitarian law.

The second part of the definition focuses on the substantive content of international
humanitarian law. It specifies the nature of content ofthe rules of humanitarian law.
This branch of international law contains those rules which apply for some objectives.
Those objectives are: to set limits on the means and methods adopted by the parties
to an armed conflict. International humanitarian law aims to restrain belligerents from
wanton cruelty and ruthlessness, and to provide essential protection to those most
directly affected by war. By reducing and limiting the most brutal and arbitrary
violence, international humanitarian law contributes to the objective of the general
international law: to maintain international peace and security amongst nations as
soon as possible. Thus, it is said that international humanitarian law aims to mitigate
the human suffering caused by war. In brief, its aim is to humanize war. The purpose
of international humanitarian law is not to take the war victims to heaven but to save
them from hell.

Can we argue that if we want to mitigate the sufferings of war, which amounts to
making the situation of war more acceptable, more endurable? Does the very existence
of humanitarian law of armed conflict contribute to perpetuating the phenomenon of
war? Will war fought in accordance with humanitarian rules last longer than the one
fought without any restraints? Does it follow that all restraints should, therefore, be
removed? What ought one to prefer: a longer war or a worse war? The argument
that international humanitarian law may prolong war and therefore ought to be
abolished, is not founded on sound basis. It amounts to nullification of the basic
purpose of international law which is to maintain international peace and security. The
whole mankind cannot be subjected to the fear of unlimited war with maximum
cruelty and ruthlessness. Without legal constraints, war may degenerate into utter
barbarism. Moreover, after the termination of such barbaric war, the restoration of
peace between the parties that have fought each other with such ruthlessness may
become virtually impossible.

Self Assessment Question

1) Define International Humanitarian Law? Discuss the various components of the
definition with examples.

......................................... , .

34
 What is IHL?
3.4 WHEN DOES IHL APPLY? When does IHL Apply?
How has IHL Developed?
International humanitarian law is applicable in the situations of an armed conflict
between the armed forces of two or more States or between the armed forces of
a State and an organized resistance movement inside the country. It is not relevant
for international humanitarian law to know about the reasons of the armed conflict.
Only the fact that an armed conflict has arisen that international humanitarian law
starts to step in.

Does it mean that international humanitarian law indirectly justifies armed conflict or
war? The answer is no. International humanitarian law does not justify war. On the
other hand, it regulates war or armed conflict. It is not directly concerned with the
issues of legitimization of violence. It is primarily concerned with the protection of
victims of any violence. As far as the prohibition of war by nations is concerned, it
is not in the domain of internationalhumanitarian law.That is the function of international
law. The Charter of United Nations prohibits war. Two terms are generally important
in this regard. One is called 'jus in bello' and another is called 'jus ad bellum'. Jus
ad bellum means rules of international law related to prohibition of the use of force
against another nation. On the other hand,jus in bello means the rules of international
law related to regulation of armed conflict by promoting humanity.

The Charter of United Nations does not only prohibit war, but also prohibits the
threat to use force against the territorial integrity or political independence of any
nation. The nation States are ordained by international law to settle their differences
in all circumstances by peaceful means. Even if a nation state justifies the use of force
on some moral grounds, it is not legal unless the use of force is for self defense. The
UN Charter permits the use of force in self defense. Self defense means that if a
nation state is attacked, then it has to defend itself. For that purpose, use of force
is justified. These rules are the rules of jus ad bellum.

Jus in bello concerns itself when the war has started or there is an armed conflict.
It does come into application before the war has started or the armed conflict has
started. A look at the history after the coming into force of Charter of United Nations
reveals that armed conflicts happen too often. It ha snot stopped. Thus, the relevance
of international humanitarian law is still there. If you look at the trend of armed
conflicts,you can broadly classify those conflicts into 4 (four) types. The first kind
of conflict arises when one nation State attacks another and the result is armed
aggression. Second kind of conflict arises when in response of armed attack; force
is used by the victim State to defend itself exercising its right to self defense. In that
effort, other friendly nations may join to support the victim state, resulting into collective
self defense. Third category would be when the United Nations resolves to use force
against the aggressor State. Fourth category would be when there occurs an armed
conflict inside a nation state itself. Such situations are known as situations of civil war.
In all these situations,there is a general agreement that rules of internationalhumanitarian
law would apply with majority of its rules applying on the first three situations, and
less number of rules applying to the fourth situation.

Thus; you can understand that international humanitarian law becomes applicable
during the times of war or armed conflict. For example, just three months after India
became independent; she faced armed raiders from its close neighbor Pakistan. At
that the new rules of international humanitarian law did not exist. Yet India declared
to abide by the then existing rules of international humanitarian law. In other instances
35
What is Law? What is of compliance of international humanitarian law by India, the armed conflict in Goa
International Law?
in December 1961, military confrontation with China in 1962, anned conflict with
Pakistan in 1971, Kargil conflict in 1999 can also be helpful. In Nepal, where there
has been an internal armed conflict between Maoists and the State, Maoists claim
protection under the rules of international humanitarian law. In Sri Lanka also, there
has been an ethnic conflict between the Singhalese and the Tamils and both sides
claim protection under the rules of international humanitarian law.

Another point to be understood in this regard is that it is not that a clash between
the armed forces of one country and any group inside that country would attract the
rules of international humanitarian law. There may be variety of situations in which
these clashes occur inside a country, like riots, sporadic violence, etc. International
humanitarian law-would not become applicable in these situations. There is always
a presumption that there is ascertainable organization present in a group of persons
who have taken to anns. Ifthere is no organization, there wouldbe nobody upon
whom responsibility for the violation of the rules of international humanitarian law
would be fixed. So, there must be hierarchy of leadership in an organized armed
group. The leadership ensures flow of orders from the top to bottom and can also
ensure compliance of the rules of international humanitarian law. For example, in
Nepal, Maoists are organized and there is the presence of ascertainable leadership.
Similarly, in Sri Lanka, ethnic Tamils are organized and leadership is also present

Further, the struggle by domestic organized group for national liberation could also
attract the-rules of international humanitarian law. Thus, it is not any group which is
organized and resorting toanned conflict would attract international humanitarian
law. The group in question must be having specific legal goal of liberation of the
country or other similar legitimate goals. For example, India was of the view that 'the
struggle of national liberation movements should clearly come within the framework
of international armed conflicts'. However, if the group is having only financial goals,
it would not be protected by the rules of international humanitarian law. Such groups
are called 'mercenaries'. They act for private interests, not in any national interest.
They have no cause except earning money. These groups can be used by a person
or entity having huge money to pay them. Lastly, you must understand that the
attitude of the nation-States is that they do not like the umbrella protection of the
rules of internationalhumanitarian law for the 'groups espousing secessionistmovements.

Self Assessment Question

2) When does International Humanitarian Law apply?

36
 What is lHL?
3.5 HOW HAS IHL DEVELOPED IN When does IHL Apply?
How has IHL Developed?
BUDDHIST TRADITIONS?
Buddhism is one of the major religions of the world. It was founded in 525 B.c. by
Gautam Buddha, also called Siddhartha (563-483 B.c.). This religion is mainly
practiced in China, Tibet, Korea, Mongolia, Nepal, Bhutan, Thailand, Japan, Laos,
Myanmar, Sri Lanka, Cambodia, Taiwan, Indonesia, and Vietnam. It is estimated
that 6% of the population of the world practice Buddhism. A very important collection
of Buddha's teachings are contained in Tripitaka (also called 'Sutras'), Anguttara
Nikaya, Mahavamsa, Dhammapada, etc .. Buddhist traditions have made an
important impact on the modem development of international humanitarian law. The
prime reason is that the principles of compassion and non-violence are given highest
place in this religion. Buddhism does not recognize war or armed conflict in its
religious precepts. However, armed conflicts do take place because of practical
necessities. In such a situation, the applicable principles would need to be worked
out in reference to its general teachings regarding the dignity and sanctity of human
life, its general principles relating to treatment of and attitudes towards other human
beings, its respect for nature and life support systems and its concepts on proper
behavior in general.

The principles to protect sick, women and children, to prohibit forced labor, collective
punishment etc. are innate in Buddhist traditions. It is specifically stated that 'carrying
out duties of the state' is not an excuse for killing. This tradition gives a lesson that
superior orders are no defense. In the context of war, the lesson is that all forms of
wrongdoing such as torture, environmental damage, and enslavement of enemy
populations, use of cruel methods of punishment and the like are prohibited. If these
wrongdoings are committed, individual responsible for the commission of these acts
would be punished. Thus the principle of individual criminal responsibility was also
recognized. Further, the Five Precepts prescribed for all lay Buddhists starts with the
prohibition against killing. This prohibition extends beyond the circle of human life to
all forms of life. There is also a deep respect for the environment and for all living
things, including flora and fauna. Acts such as the wanton destruction of crops, or
damage to the environment would be in violation of the teachings of Lord Buddha.

Applying the principle of compassion to Prisoners of War, it can be inferred that even
prisoners of war should be treated humanely. They would need to be treated with
the same care and concern as one's own soldiers. In matters of food, clothing,
shelter, and protection a heavy obligation would rest upon the capturing power to
ensure humane treatment to prisoners. Upon the completion of hostilities, they would
need to be given safe passage back to their countries of origin. Forcing them to labor
is also prohibited. Proper health care of these persons is also a responsibility of the
capturing power. Correspondence facility with the family members has also to be
facilitated.

The punishment of entire village, or group for the acts of the wrongdoer would also
be not allowed by the Buddhist traditions. This form of punishment is known as
collective punishment. The Buddhist tradition is that no one can be punished for the
act of another. Even if punishment is to be imposed for an act of heinous crime, that
punishment must be imposed on the wrongdoer and not on fellow members of the
wrongdoer. Thus, Buddhism reminds us that individual alone is responsible for his
actions, not other persons who have no role in the commission of such wrongful act.
37
What is Law? What is
Buddhist tradition also prohibits the use of cruel weapons which cause unnecessary
International Law?
suffering. For example, poisoned arrows, weapons of mass destruction, biological
and nuclear weapons are not permissible in this tradition. Weapons causing defoliation
are also not permissible. You might have heard ofthe Kalinga war fought by Ashoka,
the Great. Ashoka was so moved by the unnecessary suffering caused to the people
during this war that he declared that he would never fight aggressive war. Ashoka
adopted Buddhism after this war and he set innumerable examples of showing
compassion to fellow human and other living beings during the his whole life. Thus,
you may see that Buddhist traditions have enriched the ideas which have contributed
to the development of modem international humanitarian law.

3.6 HOW HAS IHL DEVELOPED IN

CHRISTIAN TRADITIONS?
Christianity is also one of the major religions of the world. About 2000 years ago
(5 B.C.-A.D.30), Jesus Christ, also called Jesus of Nazareth founded this religion.
This religion is practiced all over the world. It is not area specific or region specific.
The believers in Christianity are called differently as Catholics, Protestants, Orthodox,
Anglicans, and others. Around 60% of the whole population of the world believe and
practice this religion. The most sacred scripture of this religion is Bible (Old Testament
and New Testament). The Christian tradition has made an important impact on the
development of modem international humanitarian law. According to the leading
jurists, Christian tradition maintains two divergent views on ~ar. According to one
view, there is no place of aggressive war in this religion. According to other, wars
could be fought on just grounds. .

According to one of the Commandment in the scripture, killing of human being is

totally prohibited. Advancing this belief, several Popes have described resort to war
as not permissible in Christianity. According to them, 'whatever the grievance ofthe
State may be, and howsoever objectionable it may find the status quo, warfare
undertaken on the sovereign decision of the national state is an immoral means for
settling the grievance and for altering existing conditions.' Until the reign of the
. famous ruler Constantine (313 A.D.), a military career for Christians was considered
not good and was even disapproved. It was only when Constantine became the
ruler, that Christians accepted warfare and took part in hostilities. It was from his
time that a new interpretation was given to Christ's teachings and use of armed force
was justified in the cause of justice. For that purpose, wars of Crusades were
justified.

Wars could be fought on just grounds became the new trend. However, rule of
proportionality must be adhered during the times _ofwar. This rule prescribed that use
of armed force should not be disproportionate to the military objective of defeating
the opposite party. Conduct of war must be just. No wanton violence, profaning of
temples, looting, massacre, or burning, vengeance, or atrocities and reprisals were
permitted. St. Augustine (A.D. 353-430) had a huge influence on the people practicing
Christianity. Augustine was of the view that wars can not bring lasting peace. War
may be an evil necessity against even greater evils. The monks or clerics were
believed to be bound by the Ten Commandments of Christ, but the other followers
of Christ were not bound by that Commandment which prescribed not to kill human
beings. '

In Christian tradition, the teachings ofSt. Thomas Aquinas (A.D. 1224-1274) enjoy
38
 What is IHL?
an important place. According to him, the king has the right and duty to resort to the
When does IHL Apply?
necessary measures of war. The nature of his power authorizes the destruction of life How has nIL Developed?
and property, provided the war is just. An offensive war is just-when three conditions
are satisfied: it must be declared by the sovereign (private wars were not allowed);
cause of war must be just (when a state is attacked because it neglected to punish
some crimes committed by one of its members or when it failed to make restitution
of something that had been unjustly seized); and purpose of war should be to lay the
foundations of a better and more lasting peace (there must not be evil intentions).

In Christian traditions, it is also emphasized that not only the ends of war must be
justified, but also the means of war should be justifiable. The principles of proportionality
of use of armed force, use of lethal weapons, and other means of combat, protection
of civilians, and protection of the sick and the wounded are all meaningful and
binding. It is believed that it is unchristian to indulge in wanton destruction of human
life and civilian property, of religious houses, schools and hospitals, of those who
seek asylum, and of cultural property. Thus, you may find now that the Christian
traditions, from Jesus to Aquinas, have made the roots of modem international law
even stronger.

3.7 HOW·HAS IHL DEVELOPED IN HINDU

TRADITIONS?
Hinduism is also one ofthe major religions ofthe world. About 13.5% ofthe world
population believes in this religion. Hinduism was founded in about 1500 B.c. in
India. The followers of this religion can be found concentrated mainly in India and
Nepal. However, they are scattered in other parts ofthe world now, like Bhutan, Fiji,
Guyana, Indonesia, Mauritius, Sri Lanka, South Africa, Surinam, Trinidad and Tobago.
The sacred texts of this religion are: Vedas, Upanishads, Bhagavad Gita, Mahabharata,
and Ramayana. Hindu traditions have also contributed in strengthening the roots of
modem international humanitarian law.

Wars could be fought, but as a means of last resort. According to the tradition, the
King should conquer his foes by conciliation, by gifts, and by creating dissension,
never by fighting. Because of the fact that wars are uncertain and only one party
wins, resort to war should be avoided. If, however, the attempts not to wage war
failed, then war could be permissible. Further, war could be justifiable on certain
specified grounds, like.the theft ofthe wife of king, transgression of territory, or the
capital of the state, national honor, loss of fortune, the preservation of the balance
of power, death, or injury sustained by an ally, or the prevention of oppression by
a monarch of his subjects. The use of war for demonstration of prowess through
ashwamedha yagna and vajpeya yagnas was also allowed. Religious differences
did not provoke war because Hindu tradition lays great emphasis on tolerance.

Hindu tradition also throws light on the conduct of belligerents during the war.
According to these traditions, a victory obtained through unrighteous means in a war
was not good. Wars should be subject to certain humane conduct. A code ofhonor
was laid down for the warrior class, called Kshatriya Dharma. Initially, these rules
were applicable in wars fought between Aryans (for example, Lord Rama justified
his action of killing Bali from behind on the plea that the latter was a wild beast to
whom the law of war did not apply), but gradually these rules were applicable on
non-Aryans too. Further, the persons not engaged in warfare should be spared.
Soldiers who surrender should not be killed. Persons who are unable to fight should
39
What is Law? What is also not be killed. Women, aged men, Brahmins should also be spared from the
International Law?
ravages of war. The cultivators or tillers of soil should be left spared during war.
Similarly, husbandmen should not be hurt. Enemy's country should not be burnt
down and the trees or plants should be not cut. Very often, these principles were
violated by several kings, yet there is also a lot of evidence by foreign contemporary
writers (like Megasthenes, Yuang Chwang, Selukos) that these rules were followed
during war time.

Victims of war should be protected, not killed. Various Hindu scriptures allowed
enslavement and others did not allow. For example, Rigveda refers to dasa (slaves),
Ramayana and Mahabharata refer to the enslavement of war prisoners; and Agni
Purana and Srnritis forbid the enslavement of prisoners of war. In some text-books,
it was provided that if soldiers were taken prisoners, they were to be set at liberty
upon the termination of hostilities. The Mahabharat declares that a victorious monarch
should express his profound sorrow at the death of the soldiers of the enemy prince.

Rules on means and methods of warfare can also be found in Hindu traditions. Use
of arrows with poisoned tips, barbed weapons should be avoided. Weapons should
be not disguised, it should be visible. Weapons carrying fire heads were not permissible
because it was considered that fire was unreliable and a divine calamity, the destroyer
of innumerable creatures, grains, animals, money, forest produce and goods. In some
exceptional circumstances, weapons having fire heads were allowed. Use of secret
agents and spies during the times of war was permitted. Deceitful means, like trickery,
stratagems could be legitimately resorted to against deceitful belligerents. Thus,
Aswathama, a sage in the sacred text Mahabharata, justified his conduct of murdering
the enemy generals stealthily in the dark of night by citing the example ofIndra (a
Hindu God) as a precedent.

Taking booty in times of war was permissible. The victor side in a war was entitled
to receive the booty gained in battle. However, unwarranted plunder and loot by the
victor party was not permitted. If there was a belligerent occupation, the customary
laws of the conquered country should be allowed to be normally practiced. The
conqueror was mandated to protect the land and people of the conquered territory,
and to maintain law and order therein. Thus, you may note that the Hindu tradition
left a great imprint upon the future generations of human being to develop the modem
international humanitarian law.

3.8 HOW HAS IHL DEVELOPED IN ISLAMIC

TRADITIONS?
Islam is also one of the major religions of the world. This religion was founded by
Prophet Mohammad (A.D. 570-632) in A.D. 622. Prophet Mohammad was born
in Mecca in Saudi Arabia. This religious tradition is practiced from west coast of
Africa to the Phillipines including Tanzania, Southern part of Russia and China, India,
Pakistan, Bangladesh, Malaysia, Indonesia, Maldives, Arab world and Afghanistan.
Almost 18 % of the world population continue to carry on this tradition. The most
sacred scripture ofthis tradition is Quran (the words of God delivered to the Prophet
by the angel Gabriel). Other very important text is Hadis (collection ofthe Prophet's
sayings). Islamic traditions have made an important impact on the modem development
of international humanitarian law.

Islamic traditions forbid Muslim combatants to torture their enemies or to subject

40
 What is IHL?
them to treatment contrary to human dignity. The Quran recognizes the special
When does IHL Apply?
position enjoyed by man and therefore human dignity has to be respected. According How has IHL Developed?
to Prophet, 'Do not commit treachery and do not mutilate.' The Prophet expressly
ordered: 'Never mutilate even a dog'. That order has always been mentioned among
the several instructions given to Muslim soldiers by their commanding officer. This
shows the concern of Islam for the dignity and integrity of the human person in the
midst of hostility.

The Quran further says, 'Fight in the cause of Allah those who fight you, but do not
transgress limits', Thus, one must never transgress the limits of justice and equity and
fall into unwarranted conduct. The objective of war should not be to achieve personal
goal or acquire enemy's property, but to universalize the Islamic faith (Jihad). Islamic
traditions therefore advise the Muslim soldiers to refrain from the shedding of blood,
or the destruction of property not necessary for the achievement of that religious
objective. Furthermore, this tradition also provides guidelines to protect the natural
environment. The Quran condemns the man who 'when he holds authority makes
efforts in the land to cause mischief in it and destroy crops and cattle'. Moreover,
the successor to Prophet Mohammad, Caliph Abu Bakr stated: 'Do not hew down
a date palm nor bum it; do not cut down a fruit tree; do not slaughter goat or cow
or camel except for food'. Thus, unnecessary cutting down of fruit trees and
destruction of crops or any wanton destruction of natural environment was forbidden.

Islamic tradition prohibits the killing of anyone who deserts the enemy army. Nor
does it allow an adversary to be killed if a promise has been made to spare his life.
It enjoins upon all Muslims that they must undertake, if necessary, to guarantee the
safety of those who have surrendered. The method of perfidy (acting in a treacherous
or disloyal way) for the purpose of killing is not permitted. However, ruses (deceitful
way of doing something or getting something, trick) of war were allowed. Thus,
camouflage, decoys, mock operations, and misinformation were permitted.

Distinction between the combatants and non-combatants was also be maintained

during war. The Quran clearly says: 'Fight those who fight you'. A Muslim soldier
is always obliged to distinguish the combatant from a non-combatant and direct his
weapon at the former only. Other traditions lay down, 'Do not kill any old person,
any child, or any woman'; 'Do not kill monks in monasteries'; 'Do not kill people
who are sitting in places of worship' . According to one Islamic scholar, Al-Awzai,
labourers, peasants, shepherds, old people, hermits, children, women, traders,
merchants, and contractors not taking part in hostilities should not be made object
of any military attack.

The prisoners of war should also be shown respect, not contempt. According to the
Quran, after the combatants have been subdued and captured 'thereafter, is time for
either generosity or ransom until the war lays down its burdens ..' The Prophet said
at one occasion: 'Prisoners are your brethren. It is by the grace of God that they are
in your hands. Since they are at your mercy, treat them as you would treat yourself
as regards food, clothing, and shelter. Do not demand of them labor which exceeds
their strength; help them rather in what they have to do'. The caliph Abu Bakr
demanded from his victorious soldiers to treat prisoners of war with pity. Mother
prisoners are not to be separated from her child Correspondence with the family
members should also be allowed. Making a will by the prisoner of war should also
be permitted. These principles found in Islamic traditions greatly influenced the modern
codification of international humanitarian law in the second half of the twentieth
century.
41
What is Law? What is
International Law? 3.9 SUMMARY
• In this unit, we learnt the definition of international humanitarian law and the relation
of international humanitarian law with international law. This definition is useful in
understanding the concepts of international humanitarian law.further. The threat to
humanity comes from various factors. One factor is armed conflict. The regulation
of armed conflicts therefore becomes important. International humanitarian law serves
this concern ofthe international community.

• Further, we discussed the time of application of this branch oflaw. You might have
probably understood very well that international humanitarian law applies during
war time, not during peace time. Second, this branch of international law is not
concerned with the legality of armed conflict. This is the concern of international
law. International humanitarian law deals with the legality of actual conduct ofthe
participants in the war.

• We further discussed the various religious traditions and their impact upon the modem
development of international humanitarian law. Modem international law started
developing in the second part ofthe twentieth century Christian era, but the various
religious traditions have also laid down several rules in the nature of international
humanitarian law way back in pre-Christian era or in the first century of the Christian
era. In this context, we discussed Buddhist, Christian, Hindu, and Islamic traditions
and their influence on the development of international humanitarian law.

3.10 TERMINAL QUESTIONS

1) Define international humanitarian law? Discuss the various components of the
definition with examples.

2) When does international humanitarian law apply? Is there any difference between
legality of war and legality of actual conduct of the participants in war?

3) How have the various religious traditions influenced the development of modem
international law in the twentieth century?

3.11 ANSWERS AND HINTS

Self Assessment Questions
1) Refer to Section 3.3

2) Refer to Section 3.4

Terminal Questions

1) Refer to Section 3.3

2) Refer to Section 3.4

3) Refer to Section 3.5, 3.6, and 3.8

42
 What is IHL?
3.12 GLOSSARY When does IHL Apply?
How has IHL Developed?
Jus in bello The law on the conduct of people during warfare

Jus ad bellum The law on the legality of warfare

Five Precepts of In Buddhist tradition, these precepts lay down rules of

Buddha human conduct.

Prophet Mohammad: A legendary and extraordinary human being founding the

religion called' Islam'.

3.13 REFERENCES AND SUGGESTED

READINGS
1) V.S. Mani (ed.), Handbook ofIntemational Humanitarian Law (2007)

2) Marco Sassouli, How does Law Protect in War (1999)

43
 UNIT 4 WHERE DO YOU FIND IHL?
Structure

4.1 Introduction
4.2 Objectives
4.3 What are the Current Sources ofIHL?
4.4 What are the Names of IHL Instruments?
4.5 How has the Hague Law Developed?
4.6 How has the Geneva Law Developed?
4.7 How have the Hague Law and the Geneva Merged into One?
4 .8 Summary
4.9 Terminal Questions
4.10 Answers and Hints
4.11 Glossary
4.12 References and Suggested Readings

4.1 INTRODUCTION
In this unit, we shall discuss about the current sources of international humanitarian
law, like customary practices, treaties, Conventions, Protocols and resolutions of
General Assembly and Security Council of the United Nations. Identifying the sources
of international humanitarian law would make your the easy to apply those rules in
any given situation.

We shall also be familiar with the names and the major contents of the international
humanitarian law instruments. There are about two dozens of major international
humanitarian law instruments which are important to be understood.

We shall discuss the development of Geneva Law which regulates the protection of
victims of warfare, like wounded, sick, and shipwrecked. We sl!all also discuss the
development of the Hague Law which regulates the conduct of the participants in
war, like soldiers and other person actively supporting them. At last, we shall learnt
that in our times, the Geneva Law and the Hague Law have merged into each other
in the form of treaties, namely, Additional Protocols I and H.

4.2 OBJECTIVES
After reading this unit, you should be able to:

• know the current sources of international humanitarian law;

• discuss the names and essential contents of some of the important instruments of
international humanitarian law; and

• discuss the development of the Law of Geneva and the Law of The Hague and
their final merger.
44
 Where do You Find IHL?
4.3 WHAT ARE THE CURRENT SOURCES OF
IHL?
As you already know the importance of the sources oflaw, it would be insignificant
to tell you the importance of the current sources of international humanitarian law.
Suffice would be to say that customary rules, treaties, Conventions, Protocols,
Resolutions of the General Assembly and of Security Council of the United Nations
are the current sources of international humanitarian law.

Treaty based rules are not enough to constitute the one and only source of international
humanitarian law. Customary rules of international humanitarian law solve the problems
related to the application of treaties as these would fill some of the gaps in the treaty
based internationalhumanitarian law rules applicable in the situation of non-international
armed conflicts. Non-international armed conflicts comprise the majority ofthe armed
conflicts in the world today. Customary rules of internationalhumanitarian law improves
the compliance of law as a whole and tries to effectively reduce the unnecessary
suffering and provides better protection for the victims of armed conflict.

Many of the fundamental principles and rules of international humanitarian law are
customary in nature. Most of these rules are applicable in both international and non-
international armed conflicts. For example, principles of distinction, proportionality,
the notions of military objective, protection of the civilian population and precautions
in the attack are found in customary law. According to International Committee of
the Red Cross study spanning over ten years, it was established that there are one
hundred and sixty one rules worldwide to be customary in nature. Out of those rules,
one hundred and forty seven are applicable in non-international as well as international
armed conflicts. Further these rules are binding on both sides to a conflict, whether
government forces or rebel/insurgent groups. There are very good indications of the
future development of international humanitarian law because treaty based international
humanitarian law rules are ineffective upon non-international armed conflicts.

These customary rules of international humanitarian law are particularly important and
relevant to South Asian region. This region has witnessed several armed conflicts and
other situations of armed violence. Countries in this region also have a rather weak
record of ratification of international humanitarian law treaties and only a few States
have taken adequate steps necessary to implement their treaty based obligations into
domestic law. The recognition and application of customary rules of international
humanitarian law is, therefore, very important in order to regulate armed conflicts for
many countries in this region. Customary rules of international humanitarian law can
help fill the gaps for those countries currently engaged in non-international armed
conflicts.

Treaty/Convention/Protocol based rules of international humanitarian law are more

concrete and precise than customary rules as these are written rules and agreeable
to countries. These are directly the sources of international humanitarian law. Currently,
there are around hundred instruments on international humanitarian law. However, we
would enumerate two dozen instruments for our purposes. On the protection of
victims of armed conflict, the nine important instruments are: the four Geneva
Conventions of 1949, Additional Protocol I of 1977, Additional Protocol II of 1977,
Additional Protocol III of 2005, and Child Rights Convention of 1989, Optional
Protocol to Child Rights Convention of 2009. On the protection of cultural property,
the three main instruments are: Hague Convention of 1954, Hague Protocol of 1954,
45
What is Law? What is and Hague Protocol of 1999. On the protection of environment, one major instrument
International Law?
is ENMOD (Environmental Modification Techniques) Convention of 1976. On the
regulation of the use of weapons, the eleven major instruments are: Geneva Gas
Protocol of 1925, Bacteriological Weapons Convention of 1972, Convention on
Conventional Weapons of 1980, Five Protocols of Convention on Conventional
Weapons of 1980, Chemical Weapons Convention of 1993, Ottawa Landmines
Treaty of 1997, and Cluster Munitions Treaty of 2008. One more treaty of very
important significance is Rome Statute ofInternational Criminal Court of 1998.

You can understand the importance of this source if you consider the number of
nation-states parties to these treaties. One hundred and ninety four nation-states are
parties to the Four Geneva Conventions of 1949. One hundred and sixty nine nation-
states are parties to Additional Protocol I. One hundred and sixty five nation states
are parties to Additional Protocol II. Fifty two nation states are parties to Additional
Protocol I1I. One hundred and ninety three nation states are parties to Child Rights
Convention. One hundred and thirty two nation-states are parties to Optional Protocol
to Child Rights Convention. One hundred and twenty three nation states are parties
to Hague Convention. One hundred nation-states are parties to 1954 Protocol to
Hague Convention. Fifty six nation-states are parties to 1999 Protocol to Hague
Convention. Seventy three nation-states are parties to ENMOD Convention. One
hundred and thirty six countries are parties to Geneva Gas Protocol. One hundred
and sixty three countries are parties to Bacteriological Weapons Convention. One
hundred and eleven countries are parties to Convention on Conventional Weapons
{CWC) Convention. One hundred and nine countries are parties to the First Protocol
to CWC Convention. Ninety three countries are parties to Second Protocol to
CWC Convention. One hundred and five countries are parties to the Third Protocol
to CWC Convention. Ninety five countries are parties to the Fourth Protocol to
CWC Convention. Sixty five countries are parties to the Fifth Protocol to CWC
Convention. One hundred and eighty eight countries are parties to Chemical Weapons
Convention. One hundred and fifty six countries are parties to Ottawa Landmines
Treaty. Thirty countries are parties to Cluster Munitions Treaty. One hundred and ten
countries are parties to the Rome Statute of International Criminal Court.

In South Asian region, India, Sri Lanka, Bangladesh, Pakistan, Maldives, Bhutan,
and Nepal (all South Asian countries) are parties to the Four Geneva Conventions
of 1949. Bangladesh and Maldives are parties to Additional Protocol to I and II of
Geneva Conventions. No country in this region is party to the Third Additional
Protocol of Geneva Convention. All South Asian region countries are parties to the
Child Rights Convention. Except Pakistan, all South Asian region countries are parties
to the Optional Protocol to Child Rights Convention. India, Sri Lanka, Bangladesh,
and Pakistan are parties to Hague Convention. India, Bangladesh, and Pakistan are
parties to 1954 Protocol to Hague Convention. No country of this region is party
to 1999 Hague Protocol. India, Sri Lanka, Bangladesh, and Pakistan are parties to
ENMOD Convention. All South Asian region countries are parties to Geneva Gas
Protocol Except Nepal, all are parties to Bacteriological Weapons Convention.
Except Bhutan and Nepal, all are parties to Convention on Conventional Weapons
(CWC). Same position remains with the First Protocol to CCW Convention. India,
Sri Lanka, Bangladesh, and Pakistan are parties to Protocol II of CCW. India, Sri
Lanka, Bangladesh, Pakistan, and Maldivesare parties to Protocol III of CCW.
Except Bhutan and Nepal, all countries are parties to Protocol IV to CCW. India
and Pakistan are parties to Protocol V of CCW. All countries are parties to Chemical
Weapons Convention. Bangladesh, Maldives, and Bhutan are parties to Ottawa
46
 Where do You Find IHL?
Treaty. No country is party to Cluster Munitions Convention. Same position remains
with the Rome Statute of International Criminal Court.

Apart from the customary rules of international humanitarian law and treaties, the
resolutions passed by the General Assembly and Security Council of the United
Nations might become the source of this branch of international law. In the case of
Former Yugoslavia and Rwanda, the resolutions passed by the Security Council of
the United Nations became the basis of administration of justice by International
Criminal Tribunal for the Former Yugoslavia, and International Criminal Tribunal for
Rwanda in 1993 and 1994 respectively. Although the resolutions passed by the
General Assembly do not become the source of international humanitarian law directly,
these may be the evidence of the practice of the countries in a particular situation.
Thus, if you want to prove a customary practice of international humanitarian law
before a court, you may adduce evidence of the resolutions passed by the General
Assembly to prove the existence of a practice amounting to international custom. The
Court may look into the fact that how the resolution in question was passed by the
General Assembly. The conditions of voting may be very important to determine the
strength of practice of the country. The factors (political, economic and security etc.)
which influenced the voting in favor of the resolution may be an important question
to decide the issue. Finally, it can be concluded that the resolutions of General
Assembly may be an important tool to identify the source of international humanitarian
law.

Self Assessment Question

1) What are the main sources of International Humanitarian Law?

.
.........................................................................................

4.4 WHAT ARE THE NAMES OF IHL

INSTRUMENTS?
The Geneva Convention for the Amelioration of the Conditions of Wounded and
Sick in Armed Forces in the Field, 1949 (or, Geneva Convention I) protects wounded
and sick soldiers during war. It contains sixty four articles. These articles provide
protection not only for the wounded and sick, but also for medical and religious
personnel, medical units and medical transports. The Convention also recognizes the
distinctive emblems. It has two annexes containing a draft agreement relating to
hospital zones and a model identity card for medical and religious personnel.

The Geneva Convention for the Amelioration of the Wounded, Sick and Shipwrecked
Members of the Armed Forces at Sea, 1949 (or, Geneva Convention II) protects
wounded, sick and shipwrecked military personnel at sea during war. This Convention
closely follows the provisions of the Geneva Convention I in structure and content.
It has sixty three articles specifically applicable to war at sea. For example, it
protects hospital ships. It has one annex containing a model identity card for medical
and religious personnel.

47
What is Law? What is The Geneva Convention relative to the Treatment of Prisoners of War, 1949 (or,
International Law?
Geneva Convention Ill) applies to prisoners of war. It contains one hundred and
forty three articles. The categories of persons entitled to POW (Prisoners of War)
status were broadened. The conditions and places of captivity were more precisely
defined, particularly with regard to labor of POW, their financial resources, the relief
they receive, and the judicial proceedings instituted against them. The Convention
establishes the principle that POW shall be released and repatriated without delay
after the cessation of active hostilities. The Convention has five annexes containing
various model regulations and identity and other cards.

The Geneva Convention relative to the Protection of Civilian Persons in Time of War,
1949 (or, Geneva Convention IV) affords protection to civilians, including in occupied
territory. Before 1949, civilians were not protected from the effects of war by any
treaty. Thus, this is an important advancement over the other treaties. This Convention
is composed of one hundred and fifty nine articles. The bulk of the Convention deals
with the status and treatment of protected persons, distinguishing between the situation
of foreigners on the territory of one of the parties to the conflicts and that of civilians
in occupied territory. It spells out the obligations ofthe Occupying Power vis-a-vis
the civilian population. It also contains provisions on humanitarian relief for populations
in occupied territory. It also contains a specific regime for the treatment of civilian
internees. It has three annexes containing a model agreement on hospital and safety
zones, model regulations on humanitarian relief and model cards.

In the two decades that followed the adoption of the Geneva Conventions, the world
witnessed an increase in the number of non-international armed conflicts and wars
of national liberation. New methods of warfare, like guerilla warfare was adopted.
In response, two Additional Protocols to the Geneva Conventions were adopted in
1977. Protocol I (Additional Protocol to the Geneva Conventions of 1949, relating
to the Protection of Victims of International Armed Conflicts) strengthens the protection
of victims of international armed conflicts whereas Protocol Il (Additional Protocol
Il to the Geneva Conventions of 1949, relating to the Protection of Victims of Non-
InternationalArmed Conflicts) strengthens the protection of victims of non-international
armed conflicts. Protocol Il was the first ever international treaty devoted exclusively
to situations of non-international armed conflicts. In 2005, Protocol III was also
adopted. It creates an additional emblem, the Red Crystal, which has the same
international status as the Red Cross and Red Crescent emblems.

The Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or
other Gases, and of Bacteriological Methods of Warfare, 1925 (usually called the
Geneva Gas Protocol) is a treaty prohibiting the first use of chemical and biological
weapons. It entered into force an February 8, 1928. It prohibits the use of chemical
and biological weapons, but has nothing to do with production, storage or transfer
of these substances.

The Convention of 10April 1972 on the Prohibition of the Development, Production

and Stockpiling of Bacteriological (Biological) and Toxic Weapons and Their
Destruction (also called BWC) prohibits not only the use of these weapons but also
the development, production, stockpiling and acquisition of these weapons. This
Convention supplements the Geneva Gas Protocol of 1925. This Convention entered
into force on 26 March 1975.

The Convention of 10 October 1980 on Prohibitions or Restrictions on the Use of

Certain Conventional Weapons which may be deemed to be Excessively Injurious
48
 Where do You Find IHL?
or to have Indiscriminate Effects, (also called CCW) and its Five Protocols seek to
prohibit or restrict the use of certain conventional weapons which are considered to
be excessively injurious or whose effects are indiscriminate. Protocol I of CCW,
1980 restricts weapons with non-detectable fragments. Protocol II of 1980 restricts
certain categories of landmines and booby-traps. Protocol III of 1980 restricts
incendiary weapons. Protocol IV of 1995 restricts blinding laser weapons. Protocol
V of 2003 regulates the clearance of explosive remnants of war.

The Convention on the Prohibition of the Development, Production, Stockpiling and

Use of Chemical Weapons and on Their Destruction, 1993 (also called CWC) bans
the production, stockpiling and use of chemical weapons, like mustard agent and
chloroacetaphenone. The Convention on the Prohibition of Military and any other
Hostile Use of Environmental Modification Techniques, 1976 (also called ENMOD)
intends to nip in the bud the expansion of the conduct of hostilities using environmental
modification techniques.

The Ottawa Treaty or the Convention on the Prohibition of the Use, Stockpiling,
Production and Transfer of Anti ...Personnel (AP) Mines and on their Destruction,
1997 completely bans all AP landmines. It has become effective from March 1999.
Besides stopping the production and development of AP mines, a state party must
destroy all AP mines in its possession within four years. However, mixed mines, anti
tank mines are not covered by this Convention. Finally, the Convention on Cluster
Munitions (CCM), 2008 prohibits the use of cluster bombs, a type of explosive
weapons which scatters bomblets over an area. This Convention is going to enter
into operation from August 1,2010.

The Rome Statute of International Criminal Court, 1998 has also come into operation
since 2002. The Court has jurisdiction in four specific kinds of international crimes,
viz., genocide, crimes against humanity, aggression, and war crimes. The Court has
its seat at The Hague in Europe.

Self Assessment Question

1) What are the main instruments ofInternational Humanitarian Law?

4.5 HOW HAS THE HAGUE LAW DEVELOPED?

You must know that the process of modem development of international humanitarian
law started with the codification of already existing customary rules of warfare. This
codification was started in the middle of nineteenth century with the conclusion of
multilateral treaties. Two multilateral treaties of fundamental importance in the world
of international humanitarian law were concluded: one at St. Petersburg (prohibiting
the use of explosive rifle bullets) in 1868 and another at Geneva (relating to the
protection of wounded soldiers on the battlefield) in 1864. These modest beginnings
led to the emergence of two distinct trends in the law of armed conflict, namely The
Hague Law (so named because of the conclusion of some treaties related to the area
in The Hague Peace Conferences of 1899& 1907) relating to the conduct of war
49
What is Law? What is proper and permissible means and methods of war; and The Geneva Law (so named
International Law?
because of the conclusion of a number of treaties related to the area in Geneva)
relating to protection of victims of war.

The aim of the Hague Law has been to avoid unnecessary suffering and superfluous
injury by regulating the use of certain means and methods of warfare. At the First
Hague Peace Conference in 1899, four Conventions were adopted whereas at the
Second Hague Peace Conference in 1907, 13 Conventions were adopted. Of these,
the most important for the development of international humanitarian law was the
Hague Convention No. IV of 1907 concerning the laws and customs of war on land.
In this Convention, a very important principle is embodied, which is known as de
Martens clause (the clause is so named after the name of a Russian jurist, Frederick
de Martens). This principle lays down a great normative rule which states:

"In cases not covered by any other international agreements, civilians and combatants
remain under the protection and authority of the principles of international law derived
from established custom, from the principles of humanity and from the dictates of the
public conscience."

This clause testifies to the completeness of humanitarian protection: in the absence

of an explicit rule for a certain type f conduct, it may not be assumed that such
conduct is permitted. On the contrary, a solution must be found on the basis of
principles of humanity and the beauty of public conscience. This rule finds expression
in all the four Geneva Conventions as well as in Article 1(2) of Additional Protocol
I of 1977.

The major revision of The Hague Law was necessitated by the experience of World
War I (1914-1919). The human civilization was particularly shocked by the use of
poisonous gases during the war. In 1925, a Protocol was adopted for the prohibition
of the use in war of asphyxiating, poisonous and other gases, and of bacteriological
methods of warfare. The Protocol banned not only chemical means of warfare but
even the bacteriological means of warfare.

The principles embodied in the Hague Convention and regulations on land warfare
of 1899 & 1907 became widely accepted by the nation-states. By the time the
Second World War broke out, these principles were regarded to be part of customary
international law. Such a view was also endorsed by the International Military Tribunal
at Nuremberg in its judgment on the conduct of the major war criminals participating
in the Second World War. It was contended before the Military Tribunal that as
Germany was not a party to Hague Convention of 1907, the provisions related to
the conduct of war did not apply to it. Rejecting this contention, the Tribunal held
that by the year of 1939, these rules laid down in the Convention were recognized
by all nations, and were regarded as being declaratory of the laws and customs of
war.

After the Second World War, the Hague Law on conduct in the war proper and on
regulation of means and methods of warfare was further strengthened by adoption
of Hague Convention of 1954 on the protection of cultural property. This Convention
was supplemented by Hague Protocol of 1954. Thus, you can understand that the
Hague Law developed until this time on its own, retaining its prominent traits.

and of 1999. Other Conventions which furthered the cause of Hague Law are:
Bacteriological Weapons Convention of 1972, Convention on Conventional Weapons
50 of 1980 and its five Protocols, Chemical Weapons Convention pf 1993, Ottawa
Landmines Treaty of 1997, Rome Statute of the International Criminal Court of Where do You Find IHL?

1998, and Cluster Munitions Convention of2008.

4.6 HOW HAS THE GENEVA LAW

DEVELOPED?
The Geneva Law has developed since the adoption of a treaty in the year of 1864
for the protection of the sick and wounded combatants at war on land. This Treaty
had only ten articles, but the long journey of codification of law on the protection of
war victims began from Geneva. The journey started from Geneva because it was
home to a famous figure known by his name, Henry Dunant. Dunant had seen himself
with his naked eyes the full horrors of the battle between French and Austrian armed
forces. He was so moved by the misery of the victims of war that he retired from
his business activity and started working for the cause of victims of war. Out of his
several efforts to protect the victims of war, one is very important. This proposal was
to conclude a treaty by which the work of the relief societies to aid the army medical
services in time of war should be facilitated. He was responsible for the establishment
of International Committee of the Red Cross and for the conclusion of the 1864
Convention.

The Geneva Convention for the Amelioration of the Condition of the Wounded in
Armies in the Field had three important features. Firstly, in war on land, military
hospitals and ambulances would be recognized as neutrals. Secondly, hospital and
ambulance personnel would have the benefit of the same neutrality when on duty.
Thirdly, hospitals and ambulances would be distinguished by a uniform flag bearing
a red cross on a white ground. This Convention was accepted in an exceedingly
short time by all the then independent nation-states and by the United States in 1882

The treaty of 1864 was revised and expanded in 1906 to encompass the sick and
wounded, shipwrecked at sea, as warfare at sea became usual among countries.
After this revision, the need was felt to again revise and expand the scope of treaty
when the First World War (1914-1919) was over. This War had brought to light the
need for better protection of the prisoners of war. So, the Convention on the Treatment
of Prisoners of War was adopted in 1929 which imposed a categorical ban on
reprisals against prisoners of war. In the year of 1929 again, another Convention was
adopted in the form of a much improved treaty on the treatment of the wounded and
sick on land.

The Law of Geneva was further developed after the spine-chilling experience of
Second World War (1939-1945). Many deficiencies of the previous law of Geneva
came to the limelight, most prominent of which were the absence of any legal
protection of civilian population from the effects of war, and to provide some minimum
rules to regulate' armed conflict not of an international character' of the variety of
Spanish Civil War. Against this backdrop, the three Conventions in force (one of
1907 and second of 1929) were substituted by new Conventions. Thus, in 1949,
four Geneva Conventions were concluded dealing with the wounded and sick on
land; the wounded and sick and shipwrecked at sea; prisoners of war; and protection
of civilians. These four Geneva Conventions constitute the backbone of the whole
law relating to protection of victims of war. Out of these four Conventions, one
Convention is specially meant for the protection of civilians.

The special feature of all the four Conventions is that all these Conventions contain
51
What is Law? What is a common Article 3 which is applicable in armed conflict not of an international
International Law?
character. This Article contains a list of fundamental rules that the parties to the
conflict are bound to apply as a minimum in the event of non-international armed
conflicts. Thus, any party to an armed conflict cannot escape the obligations under
the Geneva Conventions by arguing that the conflict in question is not of an international
character as all the Conventions apply only upon international armed conflicts.

The Law of Geneva eventually, in part, gave rise to three categories of 'international
crimes', namely, war crimes, crimes against peace, and crimes against humanity.
These international crimes became a part of the law contained in the Charter of the
International Military Tribunal at the Nuremberg established by the victorious powers
at the end of the Second World War. This inclusion provided an opportunity to
develop international criminal law, which was later concretized in the shape of Rome
Statute of the International Criminal Court.

4.7 HOW HAVE THE HAGUE LAW AND THE

GENEVA LAW MERGED- INTO ONE?
The period after the year of 1949 witnessed violent armed conflicts. The main factors
of such armed conflicts were: national liberation movements in Asia and Africa,
guerilla warfare, development of new types of weapons, Vietnam War. The national
liberation movements had resulted into violent struggles between the militarily weak
and the militarily strong. The representatives of national liberation movements started
believing that the struggle of national liberation movements should clearly come within
the framework of international armed conflicts. The techniques of such national
liberation movements also changed, and the name given to such warfare was 'guerilla
warfare'. New types of weapons were made and old were developed further.
Weapons, like Nuclear, Chemical, and Biological weapons were developed further
in a sophisticated way. The range of Ballistic Missiles was increased. The bitter
experience of Vietnam War of 1959-1975, in which Agent Orange (a defoliant
herbicide) was used in a massive scale, was being examined. Thus, a strong opinion
was emerging that the basic rules on the means and methods of warfare should apply
to all categories of weapons, namely, nuclear, biological, chemical, or conventional
weapons, or any other category of weapons.

In the backdrop of these developments, it was felt that the rules of international
humanitarian law separated by the Hague Law and the Geneva Law be merged into
a single one with a better comprehensible set of rules. With this purpose in mind, the
Diplomatic Conference on the Reaffirmation and Development of International
Humanitarian Law Applicable in Armed Conflicts, held in Geneva from 1974 to
1977, adopted the two Protocols Additional to the Geneva Conventions on 8 June
1977. This Diplomatic Conference was attended by the representatives of 102
States and several national liberation movements. Additional Protocol I has brought
together the laws of The Hague and Geneva by combining the rules on limits on the
means and methods of warfare and protection of victims in an armed conflict into
one. Thus, The Hague Law and Geneva Law have merged into one in the form of
Additional Protocol I of 1977.

Additional Protocol I contains 102 Articles divided into six Parts. It has two annexes .
attached to it. Part I lays down general provisions. Part II lays down the rules on
the protection of wounded, sick and shipwrecked. Part III lays down rules on the
52
 methods and means of warfare and on combatant and prisoner-of-war status. Part Where do You Find IHL?

IV lays down rules on the protection of civilian population. Part V lays down rules
on the execution of the Conventions and of this Protocol. Part VI lays down final
provisions. If you look into the provisions of Parts Il, Ill, and IV, you would find
that this Protocol I is really merger of The Hague Law and the Geneva Law.

The major concerns of international; community are addressed in this Additional

Protocol I. Armed conflicts in which peoples are fighting against colonial domination
and alien occupation and against racist regimes in the exercise of their right of self-
determination are covered by the rules laid down in paragraph 4 of Article 1 of
Additional Protocol I. The basic rules on the methods and means of warfare laid
down in Article 35 provide that weapons, projectiles and material and methods of
warfare must not cause superfluous injury or unnecessary suffering. These basic rules
also prohibit employing methods or means of warfare which are intended, or may be
expected to cause widespread, long-term and severe damage to the natural
environment. In the subsequent units, you will learn that this Additional Protocol I
defines many important terminologies of international humanitarian law which were
not defined in the earlier instruments of law.

4.8 SUMMARY
0.. In this unit, we learnt the sources of international humanitarian law. The rules of
customary internationalhumanitarian law as compiled by the InternationalCommittee
ofthe Red Cross are very significant. The various multilateral treaties, agreements,
covenants, protocols, conventions are the direct sources of international humanitarian
law. We know the names of various instruments on international humanitarian law,
most important of which are the four Geneva Conventions of 1949and the Additional
Protocol I of 1977 .

• Further, we discussed the development of The Hague Law which deal with the
rules on the means and methods of warfare. It tries to emphasize that the choice
of the parties to an armed conflict to adopt any means and methods of warfare
time isnot unlimited. The basic objective of this law is to avoid unnecessary and
superfluous injury in an armed conflict. Injury must be intended to obtain military
advantage, and not to cause unnecessary and superfluous injury.

We further discussed the development of Geneva Law which deals with the rules
on the protection of victims of an armed conflict. In art armed conflict, the persons
who have surrendered, or the persons who have become incapacitated due to
injuries, sickness, or by wounds should not be killed or captured and tortured.
Through the personal efforts of Henry Dunant and later by the institutional efforts
by the International Committee of the Red Cross, the law of Geneva developed
into the form of four Geneva Conventions of 1949. These four Geneva Conventions 0

contain four hundred and twenty nine rules on the protection of wounded, sick,
shipwrecked, prisoners-of-war, and the civilians.
'0

• We also discussed the merger of these hitherto different branches of international

humanitarian law into one. This merger is codified in the form of Additional
Protocol I of 1977. It combines the rules on the means and methods of warfare
and the protection of the victims of an armed conflict. This merger was necessitated
because ofthe fact that the national liberation movements needed to be characterized
as international armed conflicts, and two, that the new means and methods of
warfare had developed after the Second World War. 53
What is Law? What is
International Law? 4.9 TERMINAL QUESTIONS
1) What are the sources of international humanitarian law? Discuss with examples.

2) Enumerate the instruments of international humanitarian law. Explain their main

features.

3) How have The Hague Law and the Geneva Law developed into separate areas?
Has there been any attempt to merge these two developments into one?

4.10 ANSWERS AND HINTS

Self Assessment Questions
1) Refer to Section 4.3

2) Refer to Section 4.4

Terminal Questions

I) Refer to Section 4.3

2) Refer to Section 4.4

3) Refer to Section 4.5,4.6, and 4.7

4.11 GLOSSARY
Geneva Law The law on the protection of sick, wounded, shipwrecked,
prisoners-of-war, and civilians.

The Hague Law The law on the limitation on the means and methods of
warfare

Additional Protocol It contains the Geneva Law and The Hague Law in its
I of 1977 essentials and evolved form.

4.12 REFERENCES AND SUGGESTED

READINGS
1) VS. Mani (ed.), Handbook of International Humanitarian Law (2007)

2) ICRC Website

3) M.K.Balachandran and Rose Varghese (ed.), Introduction to International

Humanitarian Law (1997)

54
NOTES
NOTES