Since the Russia-Ukraine conflict and its tragic consequences are in news lately, we try to shed light on some of the issues surrounding international law in situations of war/armed conflicts and related conventions.
It is well-established by political researchers across the world that the field of international relations is dominated by power politics and self-interests rather than any law. The proliferation of supranational organizations adjudicating different aspects of disputes in the last few decades strongly indicates the failure of nations to co-operate amidst the growing complexities in international affairs. While the relatively weaker nations enjoy the advantage of protection against powerful nations, the powerful ones view it as a blow to their assertive tendency. International law is riddled with challenges- in interpretation, in an application and even in its enforcement, thereby questioning its legitimacy and efficiency in resolving international disputes.
Since the Russia-Ukraine conflict and its tragic consequences are in news lately, in this article, we try to shed light on some of the issues surrounding international law in situations of war/armed conflicts.
Why international law for armed conflict?
Irrespective of the location, type and duration of the war, civilians always end up bearing the brunt. Armed conflicts cause destructions of property and disruptions in livelihoods and aspirations. And when armed conflicts happen between nations, the issue of ‘territoriality’ and ‘sovereignty’ arises, which makes the adjudication of these crimes complex. The evolution of the field of ‘International Humanitarian Law’, referred to as IHL, aims to remove these complexities and hold the perpetrators accountable.
‘Rules of War’:
It is often perceived that wars have no rules. But ‘Wars do have rules’. These rules are mostly on the conduct or the operational modalities of the war rather than the reasons to resort to war itself. As mentioned earlier, there are serious disagreements on ‘who’ has the authority to enforce or interpret these rules. Despite all these disagreements, there is a consensus that wars must be governed and adequate limits of conduct during the war must be enforced.
The history of rules of war date back to the guiding principles of international humanitarian law – humanity, neutrality, and impartiality. The earlier models of rules of war are the code of Hammurabi of Babylonian King and the Lieber Code, promulgated during the civil war in the United States. But the impetus to this came with the establishment of the International Committee of Red Cross (ICRC; formerly Known as Committee of Five) in 1863 at Geneva. This paved the way for the creation and successful adoption of the Geneva Convention – a comprehensive document addressing different aspects of the war. The convention consists of four conventions adopted on 12 August 1949, and two additional protocols of 1977 and 2005, that complement the existing conventions.
After witnessing the Battle of Solferino in 1859 and the hardships due to that battle, Henry Dunant of ICRC initiated measures for the protection of persons in situations of conflict. His focused efforts led to the formation of the International Committee of Red Cross (ICRC). These initiatives are further codified in various conferences in 1864, 1899, 1906-07, 1929. With the breakout of the Second world war, the necessity for strengthening these provisions and initiatives is clearly demonstrated. Accordingly, the four Geneva conventions were adopted in 1949, with two additional protocols adopted in 1977 to supplement these conventions and the third protocol in 2005. The four conventions of 1949 are:
- The First Convention:
- Convention for the Amelioration of the condition of the wounded and sick in Armed Forces in the field.
- It protects the soldiers who are hors de combat (Out of the battle).
- The Second Convention:
- Convention for the Amelioration of the condition of the wounded, sick, and shipwrecked members of armed forces at sea.
- It is the same as the first convention but at sea. It protects the wounded and sick combatants while on a ship or at sea.
- The Third Convention:
- Convention for the Treatment of Prisoners of War (PoWs).
- It sets the rules that provide for humane treatment of the PoWs including their criminal trial.
- The Fourth Convention:
- Convention for the protection of Civilians during the time of war.
- It includes citizens from the areas of occupied territories or armed conflicts.
In addition to these, there are two protocols that supplement the above four conventions.
- Additional Protocol 1 of 1977 extends the protection for military and civilian medical workers as well as the civilian population in international armed conflicts. It also provides for the establishment of a fact-finding commission for alleged non-compliances.
- Additional Protocol 2 of 1977 extends the protection to the victims involved in non-international conflicts. It does not apply to riots & conflicts that are internal in nature. It prohibits torture, taking of hostages, rape, & any other form that outrage personal dignity.
- Additional Protocol 3 of 2005 relates to the adoption of an additional distinctive emblem: the red crystal.
Support for Geneva Convention:
India is the 5th country in the world to ratify the Geneva Convention in 1960. India is also the first country in the region to adopt this convention. However, India did not ratify the additional protocols 1 and 2 of 1977, but it ratified the third protocol of 2005. In response to a question in parliament in 2019, the government informed that no decision has not yet been taken to ratify protocols 1 and 2.
Worldwide, as of 2022
Ratifications grew in successive decades. 74 States ratified in the 1950s, 48 additional states in the 1960s, 20 in the 1970s and 20 in the 1980s, 25 states in the 1990s, and seven states since the 2000s, making the Geneva Convention universally applicable.
- State Party: A party to a treaty is a state with treaty-making capacity that has expressed its consent to be bound by the treaty by means of accession, approval, or ratification where that treaty entered into force.
- State Signatory: It is a state that expresses its willingness to be bound by such a treaty without any need for approval, ratification, or accession.
The recent clashes in the Galwan Valley that claimed the lives of 20 Indian Soldiers had invited the attention of the International Committee of Red Cross (ICRC), which appealed to both India and China to adhere to the principles of the Geneva Convention. India had also asked Pakistan to follow Geneva Convention principles when wing Commander Abhinandan Varthaman was caught by Pakistan Army.
In response to a question in the Parliament from February 2022, the Government said that there were 83 Indian defence personnel including the Prisoners of War in the custody of Pakistan. However, their custody is not acknowledged by Pakistan.
International Criminal Justice
There are several tribunals established to deal with the war crimes happening across the world.
- International Criminal Tribunal for former Yugoslavia (ICTY): Established in 1993, it is a UN court that deals with the crimes that took place during conflicts in Balkans since the 1990s. It changed the landscape of humanitarian law and established that an individual’s capacity will not protect from prosecution.
- International Criminal Tribunal for Rwanda (ICTR): Established to prosecute people responsible for genocide in Rwanda region in 1994. Jurisdiction is limited to crimes committed in Rwanda or by Rwanda citizens across neighbouring regions.
The above two tribunals expired in 2014, and a new United Nations Mechanism for International Criminal Tribunals (MICT) was created to functions of both tribunals, as part of their closing strategy.
Mixed tribunals and special chambers
- Special Tribunal for Lebanon: Established in March 2009. Main agenda is to conduct the trials of people accused in the attacks on 14 February 2005, that killed their former Prime Minister and 22 other people. It is also the first international tribunal to try crimes under domestic law.
- Special Court for Sierra Leone (SCSL): Established in 2000, this court has jurisdiction over all violations of Sierra Leone law and international Humanitarian law.
- Special Chambers were established in courts of Serbia (War crimes chamber), Cambodia (Extraordinary Chambers), East Timor (Special Panel for serious crimes), and Bosnia -Herzegovina (War crimes chamber).
- Governed by Rome Statute, 1998
- World’s first permanent international criminal Court
- Aims to end global impunity of war crimes and to help in preventing them in the future.
- Principle of Complementarity: Not intended to replace the national criminal justice system but to complement its functioning. Acts ONLY when the state is unable or unwilling to prosecute war criminals in its jurisdiction.
- No Jurisdiction over states. ONLY individuals come under its jurisdiction.
- Situations for exercising jurisdiction:
- Either the state on whose territory the crime is committed asks
- Either the state to which the alleged perpetrator of the crime belong instigates
- Security Council may refer a situation to investigate
- States have CLEAR obligations to co-operate with the ICC, including enacting legislation, collecting evidence and so on accordingly.
- A total of 123 countries are parties to Rome Statute
- 33 are from African Nations
- 19 are the Asia-Pacific States
- 18 are from Eastern Europe
- 28 are from Latin American and the Caribbean States
- 25 from Western Europe and other states.
- One Major disadvantage of ICC is that it is not backed by powerful countries; that is the countries that have a military presence outside their own territories.
- A total of 30 cases have come before the ICC, out of which there are 35 arrest warrants, 10 convictions, 9 summons to appear and 4 acquittals. Some of these cases have more than one suspect.