Tracing International Humanitarian Law To Hinduism

Picture by Ben Heine

Picture by Ben Heine

Written by Garima Tiwari

India is party to the four Geneva Conventions of 1949 and has incorporated them into its municipal law, but India is not a signatory to the two Additional Protocols. This post examines how far the concepts of Hinduism have helped in the development of international humanitarian law.

War as an art as well as a science was equally well understood in ancient India.[i] The ancient Indians recognized war as a relation between states, the Agnipurana[ii] defines war “as the direct result of the injuries done to each other by two hostile monarchs.” Professor H. H. Wilson calls the ancient Indian laws of war are very chivalrous and humane, and prohibit the slaying of the unarmed, of women, of the old, and of the conquered.[iii]

In ancient times the first and foremost duty of the king was to protect his people. Protection consisted in countering internal threats as well as external aggression to man‟s liberty.[iv] Hinduism has mentioned wars in its various sources. Francois Bugnion has stated of Hinduism having “law of armed forces on the principle of humanity” in the following words,  “The ancient Hindu law of armed conflict, founded on the principle of humanity, had many rules limiting violence. The Upanishads     taught that all human beings are one and that all are his children…”[v]

The source of the “Hindu law of armed forces” as stated by Francois Bugnion was only Upanishads. But, in real sense, it will not be correct to say so. Hinduism is based on numerous texts. The primary sources of Hinduism are Sruti and Smriti. Sruti literally means what is heard, while Smriti designates what is remembered. In this regard, Sruti is revelation and Smriti tradition. Srutis are the four Vedas, the Rig Veda, Sam Veda Yajur Veda and Atharva Veda. Each Veda consists of four parts: the Samhita (hymn), the Brahmana (rituals), the Aranyakas (interpretations) and the Vedanta (Upanishads). The Bhagavad Gita part of the epic poem Mahabharata, is the most influential Hindu text.[vi] Manu, Yajnavalkya and Prasara are the most celebrated law-givers of ancient India. There are eighteen main Smritis or Dharma Sastras. The Dharma Sastras and epics recognized two kinds of war: Dharma Yuddha (righteous war), and Adharma Yuddha (unrighteous war).

Hinduism does not forbid war but consider it as a last resort for a state. The Manusmriti, provides that a king should first try to conquer his foes by conciliation, by gift and by causing dissension if possible: if all these fail then and then only should he wage war.[vii] The policy of conciliation and making gifts should be tried first before engaging in war.[viii]

The code of Manu advises the king:“when he fights with his foes in battle, let him not strike with weapons concealed (in wood), nor with (such as are) barbed, poisoned, or the points of which are blazing with fire.”[ix] Whether he himself fights or engages others to fight for him, the king must ensure that the battle will be an honest duel.[x]

The Rig Veda also laid down the right conduct of war. Vedic rules maintain that it is unjust to strike someone from behind, cowardly to poison the tip of the arrow and heinous to attack the sick or old, children and women.

The ancient Indian war was a war of righteousness, i.e., Dharmayuddha; hence, any kind of inhumane acts were discouraged and frowned upon. Whose weapons are broken; who finds himself in trouble; the string of whose bow is snapped; whose battle horse is killed – he should never be attacked. Such an enemy falling into one‟s hands, his wounds should be tended, and he should be taken to his home.[xi]

The laws of war in ancient India drew a clear distinction between civilians and belligerent.[xii] The ancient Indian texts like Mahabharata, being the greatest epic ever written in the history of mankind, and Manusmriti, lay down the laws governing war in ancient India, are congruous to the provisions of Geneva Conventions[xiii], as in the Basic Rules of the Geneva Conventions and their Additional Protocols.[xiv]

According to Manu: “persons walking on the road, not participating in the conflict, or mere travellers, or those who are engaged in eating and drinking or pursuing their special avocations or activities or diplomatic errands and of course the Brahmins, unless they are engaged in war, were not to be killed.”[xv]

For example, combat between mounted and unmounted soldiers was strictly forbidden. Furthermore, combat between warriors of officer rank and foot soldiers was not allowed, since the former would generally be much better armed and trained than the latter. Collective attacks against a single soldier and the slaying of a warrior who was temporarily at a disadvantage during battle were strictly prohibited.

The Agni Purana clearly mentions that prisoners of war should not be enslaved. If soldiers  were taken prisoner, they were to be released at the cessation of hostilities. Kautilya advocated the humanitarian treatment of conquered soldiers and citizens. In particular, he maintained that a humanitarian policy toward a defeated people was practical, pointing out that if a king massacres those whom he has defeated, he frightens all the kingdoms that surround him and terrifies even his own ministers,[xvi] whereas more land and loyal subjects can be gained if the defeated are treated magnanimously. Kautilya advised that the conquering king should order the release of all prisoners and give help to the distressed, the helpless and the sick. He thus called for the establishment of a righteous course of conduct for sound military policy.[xvii]

Regarding weapons to be used in war field K.R.R.Sastri quotes Kautilya and written: “Our modern strategists who have killed two or three hundred thousand at Hiroshama and Nagasaki are invited to read the following passage from Kautilya(Book XIII. Ch. IV):”When if fort can be captured by other means, no attempts should be made to set fire to it; for fire cannot be trusted; it not only offends the Gods but also destroys the people, grain, cattle, gold, raw materials and the like. Also, the acquisition of a fort with its property all destroyed is the source of further loss”.[xviii]

In the Shanti Parva of the Mahabharata, it is mentioned: This means to kill someone not in combat; to rape a woman, or misbehave with her; ingratitude; to rob one devoted to learning and knowledge; to deprive another of all he has – these are considered very low acts even among robbers.[xix]

A conquering king should reassure that defeated people that not much has changed except their rulers. He should adopt a character, dress, language and behaviour similar to when the former king was ruling (similar to those of the subjects). Moreover, he should show the same devotion at festivals in honour of deities of that country, festive gatherings and sportive amusements.[xx] He should honour the local deities and make grants of land and money to men distinguished in wisdom and piety. The conquering king should show his goodwill toward the defeated by instituting a righteous custom that had not previously been introduced. Kautilya commented that “one must kill a dangerous person; however, the king must leave his property untouched and shall not appropriate the land, property, sons or wives of the killed one.”[xxi]

Kautilya also held that the fundamental rule about immoveable property was that it did not belong to the victor by right; only such things as chariots, animals, and war material belonged to the conquering forces. The king should personally examine all such captured wealth and should then keep a part for himself and distribute the rest among his armed forces according to rank.[xxii]

According to the Manusmriti, only the warriors who actually fight in the battle can take the spoils of war. Yet they are to be shared with the ruler inasmuch as the kings who have engaged them to settle scores with the enemies demand the best part of the booty.[xxiii] In this connection, the conqueror is advised to grant remissions on taxes instead of looting the conquered territory. He must seek to win over the commoners of conquered territory and not do anything that would increase their bitterness. He should not be vengeful but should instead offer an amnesty to all who have surrendered to him.

Thus, humanitarian law principles found their existence in India long before the Geneva Conventions and Protocols.

References

  1. Manoj Kumar Sinha ,Hinduism and International Humanitarian Law, International Review of the Red Cross, Volume 87 Number 858 June 2005
  2. Gaurav Arora, Gunveer Kaur, Supritha Prodaturi, Vinayak Gupta,International Humanitarian Law and Concept of Hinduism, , International Journal of Multidisciplinary Research Vol.2 Issue 2, February 2012, PP.452-458
  3. Modh, Bhumika Mukesh, International Humanitarian Law: An Ancient Indian Perspective (January 12, 2011). Available at SSRN: http://ssrn.com/abstract=1738806 or http://dx.doi.org/1

[i] H. B. Sarda, Hindu Superiority: An Attempt to determine the position of the Hindu race in the scale of nations, Scottish Mission Industries Company, 2nd Ed., Pune, 1917, p 349.

[ii] Agnipurana is one of the 18 Mahapuranas, a genre of Hindu religious texts, contains descriptions and details of various incarnations (avataras) of Lord Vishnu.

[iii] H. H. Wilson, Essays and Lectures on the Religions of the Hindus, Vol. II, Trubner & Co., London, 1861, p. 302.

[iv] Pandurang Varman Kane, History of Dharmasastra, Poona, 1973, Vol. 3, p. 56.

[v] Francois Bugnion,Customary International Humanitarian Law, ISIL Yearbook of International Humanitarian and Refugee Law Vol. 7,2007, p. 1.

[vi] Surya P. Subedi, The concept in Hinduism of just war, Journal of Peace and Conflict Studies, 2003, Vol. 8,p. 339-361.

[vii] Ancient India developed a method in four successive stages for the settlement of disputes between States: the first stage is called peaceful negotiation (sama); the second stage consists of offering gifts (dana) to appease the enemy; the third is a veiled threat (bheda); and the last stage allows the use of force (danda).

[viii] K. R. R. Sastry, “Hinduism and International Law”, Recueil des Cours, 1966 (I), Vol. 117, pp. 507-614

[ix] V. Nagarajan, “Manusmriti as Socio-political Constitution”, available at <http://www.geocities.com/vnagarajana402/manusmrti1.htm&gt;

[x] Ibid

[xi] Bhagshastro vipinnashch krittajyo hatvahanaha| Chikitsyaha syaat svavaishaye prapyo svagrahe bhavet|| shanti 15.13||

[xii] Lakshmikanth Penna, “Traditional Asian approaches: An Indian view” Australian Yearbook of International Law, 1985, Vol. 9,p. 108-191

[xiii] The modern laws of war were developed mainly by The Hague Peace Conferences of 1899 and 1907, and in the four Geneva Conventions of 1949 and the two 1977 Additional Protocols thereto

[xiv] Basic Rules of the Geneva Conventions and their Additional Protocols, ICRC publication 1988, ref. 0365

[xv] Supra xii

[xvi] Roger Boesche, Kautilya’s Arthasastra on War and Diplomacy in Ancient India, available at <http://muse.jhu.edu/demo/journal-of-military-history&gt;

[xvii] C. H. Alexandrowich, “Kautilyan principles and the law of nations”, British Yearbook of International Law,1965-66, Vol. 41,p.301-320

[xviii] K.R.R. Sastri, Hinduism and International Law, Recueil Des Cours Vol. 117, 1966 p. 507.

[xix] Chaturvedi Badrinath, The Mahabharata: An inquiry in the human condition, Orient Longman Pvt. Ltd., New Delhi, 2006, p. 152

[xx] Supra xvii

[xxi] Supra xvii

[xxii] Supra xvii

[xxiii] Supra xii

Targeted Killings: a Summary

Targeted Killings

Currently there is no legal definition of targeted killings in either international or domestic law.[1] ‘Targeted killing’ is rather a descriptive notion frequently used by international actors in order to refer to a specific action undertaken in respect to certain individuals.

Various scholars propose different definitions. Machon, for example, refers to ‘targeted killing’ as an “intentional slaying of a specific individual or group of individuals undertaken with explicit governmental approval,”[2] whereas Solis suggests that for there to be a targeted killing (i) there must be an armed conflict, either international or non-international in character; (ii) the victim must be specifically targeted; (iii) he must be beyond a reasonable possibility of arrest; (iv) the killing must be authorized by senior military commanders or the head of government; (v) and the target must be either a combatant or someone directly participating in the hostilities.[3] But whereas some scholars seek to use a human rights-based definition, [4] others propose those which do not entail the applicability of international humanitarian law. [5]

However, such definitions are incorrect for several reasons. First of all, the definition of a ‘targeted killing’ has to be broad enough as to cover a wide range of practices and flexible enough as to encompass situations within and outside the scope of an armed conflict, thus, being subject to the application of both international human rights law and international humanitarian law, as opposed to the definition provided by some scholars and even states themselves.[6] Secondly, one should bear in mind that defining an act as an instance of ‘targeted killing’ should not automatically render the illegality of such an act at stake.[7] Moreover, the definition also has to cover situations where such an act is carried out by other subjects of international law, rather than only by states.

Therefore, maintaining an element-based approach and synthesizing common characteristics of multiple definitions, it is more advisable to use the one employed by Alston and Melzer, which refers to targeted killings as a use of lethal force by a subject of international law (encompassing non-state actors) that is directed against an individually selected person who is not in custody and that is intentional (rather than negligent or reckless), premeditated (rather than merely voluntary), and deliberate (meaning that ‘the death of the targeted person [is] the actual aim of the operation, as opposed to deprivations of life which, although intentional and premeditated, remain the incidental result of an operation pursuing other aims).[8]

Moreover, being a descriptive notion, ‘targeted killing’ does not entail legal rights and obligations per se. The legality of the actions referred to as an instance of ‘targeted killing’ is rather dependent on the compliance of such an action with the norms of international law applicable to it. As it has been argued before, given its descriptive nature and a broad scope of practices referred to as ‘targeted killings’, the notion is subject to the application of a complex legal framework. The legality of every instance of ‘targeted killing’ is to be assessed on a case-by-case basis, and whether or not a specific targeted killing is legal depends on the context in which it is conducted: in an armed conflict, outside an armed conflict, or in relation to the use of force.[9]

In cases of an armed conflict specific norms of international human rights law seize to apply and are substituted by those of international humanitarian law as lex specialis.[10] Whether a particular targeted killing is legal under international humanitarian law, whose applicability is triggered by the existence of an armed conflict,[11] is determined by several criteria. Firstly, a killing is lawful only when the target is a combatant or a civilian directly participating in hostilities.[12] Additionally, the killing must constitute a military necessity, the use of lethal force must be proportionate to the direct military advantage anticipated, whereas everything feasible must be done to minimize collateral damage and harm to the civilian population.[13] Moreover, these standards apply regardless of the character of an armed conflict.[14]

Whether a particular targeted killing is legal under international human rights law depends on the compliance of the use of lethal force with the requirements of necessity and proportionality. The requirement of necessity implies that there are no other means rather than the use of lethal force in order to prevent the threat to life, whereas proportionality implies that a killing is only legal to protect life.[15] Thus, proportionality limits the permissible level of force based on the threat posed by the suspect to others, whilst necessity imposes an obligation to minimize the level of force used, regardless of the amount that would be proportionate through, for example, the use of warnings, restraint, and capture. [16]

Therefore, the use of lethal force under international human rights law is legal if it is strictly and directly necessary to save life and, thus, ‘targeted killing’ as a deliberate, intentional and premeditated deprivation of life is illegal under international human rights law with killing itself being a sole objective of an operation, unless, such an operation is intended to save the lives of others.

It is customary international law that States have the right to use force to maintain domestic order. [17] However, a targeted killing conducted in the territory of another state might violate the principle of sovereignty and amount to aggression,[18] which is prohibited by Article 2(4) of the UN Charter.[19] Nonetheless, there are certain exceptions justifying such an extra-territorial use of force. An extra-territorial targeted killing does not violate the principle of sovereignty either if the state whose sovereignty is at stake consents, [20] or if the targeting state has a right to use force in self-defense in response to an ‘armed attack’ as provided for by Article 51 of the UN Charter. [21] The second exception entails the following prerequisites: the second state is either responsible for an armed attack against the first state[22] or the second state is unwilling or unable to stop armed attacks against the first state emanating from its territory. [23]

Moreover, the use of lethal force in self-defense in response to an ‘armed attack’ must also comply with the principles of necessity and proportionality. Proportionality requires that a state acting defensively employ no more force than reasonably required to overcome the threat. In the context of cross-border operations, this limitation means that the scale and nature of the force employed cannot exceed that which is necessary. [24]

Article 38(1)(b) of the Statute of the International Court of Justice accepts ‘international custom’ as a source of law, [25] but only where this custom signifies a general practice which constitutes opinio juris, i.e is accepted as law. [26] As it has been argued above, ‘targeted killings’ do not have a legal definition and, thus, are not treated as such by states.[27] Given the absence of such a treatment, we can reasonably argue that there is no opinio juris present and that there is, thus, no rule of customary international law emerging. Moreover, the legal framework governing targeted killings contains jus cogens, i.e. peremptory norms from which no derogation is possible and which can be modified only by subsequent norms of general international law of the same character. [28] What is most important in this context is that only several subjects of international law cannot create jus cogens and thereafter impose their interpretation on the majority of States. [29]

Therefore, both insignificant contemporary state practice and the absence of opinio juris do not attest the emergence of a rule of customary international law nor do they provide any justification for such actions, which are rather governed by the legal framework described above.

Written by Jan Guardian


[1]       Philip Alston, The CIA and Targeted Killings Beyond Borders , 2 Harv. Nat’l Sec. J. 283 (2011)(hereinafter Alston, Targeted Killings), p. 295.

[2]       Matthew J. Machon, Targeted Killing as an Element of U.S. Foreign Policy in the War on Terror. Fort Leavenworth, KS: School of Advanced Military Studies, 2006, p. 20.

[3]       Gary D. Solis. The Law Of Armed Conflict: International Humanitarian Law in War. Cambridge: Cambridge University Press, 2010 (hereinafter Solis, Law of Armed Conflict), pp. 542-43.

[4]       L. Gross. Moral Dilemmas Of Modern War: Torture, Assassination, and Blackmail in an Age of Asymmetric Conflict. Cambridge: CambridgeUniversity Press, 2010, p. 106.

[5]       Michael 5 Solis, Law of Armed Conflict, supra note 3.

[6]       See e.g., Public Committee against Torture in Israel v. Government of Israel, HCJ 769/02. IsrSC 57(6) (2006), p. 285.

[7]       Alston, Targeted Killings, supra note 1, pp. 297-298.

[8]       U.N. Human Rights Council, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Addendum: Study on Targeted Killings, U.N. Doc. A/HRC/14/24/Add.6, May 28, 2010 (prepared by Philip Alston), paras. 1, 10; Nils Melzer. Targeted Killing in International Law. Oxford: OxfordUniversity Press, 2008, pp. 3-4 [online][accessed 26 February 2013].

[9]       Alston, Targeted Killings, supra note 1, p. 300.

[10]     Alston, Targeted Killings, supra note 1, p. 301.

[11]     See e.g., Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 J.C.J 226, July 8, 1996 [online][accessed 26 February 2013].

[12]     Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field art. 3, Aug. 12., 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31 [hereinafter Geneva Convention I][online][accessed 26 February 2013]; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea art. 3, Aug. 12., 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85, [hereinafter Geneva Convention II][online][accessed 26 February 2013]; Geneva Convention Relative to the Treatment of Prisoners of War art. 3, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter Geneva Convention III][online][accessed 26 February 2013]; Geneva Convention Relative to the Protection of Civilian Persons in Time of War art. 3, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter Geneva Convention IV][online][accessed 26 February 2013].

[13]     Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), art. 51, June 8, 1977, 1125 U.N.T.S. 3 [online][accessed 26 February 2013]; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), art. 13, June 8, 1977, 1125 U.N.T.S. 609 [online][accessed 26 February 2013].

[14]     Ibid.

[15]    See e.g., Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, adopted by the Eighth U.N. Congress on Prevention of Crime and Treatment of Offenders, Havana., Cuba, Aug. 27-Sept. 7, 1990.

[16]     U.N. Human Rights Council, Report of the Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions (prepared by Philip Alston), U.N. Doc. A/61/311, September 5, 2006, pp. 42-44.

[17]     Malcolm Shaw, International Law, 6th ed. Cambridge: Cambridge University Press, 2008, p. 1126.

[18]     UN General Assembly, Definition of Aggression, A/RES/3314, December 14, 1974, art. 1 [online][accessed 26 February 2013].

[19]     United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI (hereinafter UN Charter), art. 2(4) [online][accessed 26 February 2013].

[20]     See, e.g., Ian Brownlie, International Law and the Activities of Armed Bands, 7 Int’l & Comp. L. Q. 712, (1958) hereinafter Brownlie, Armed Bands), p. 732.

[21]     UN Charter, supra note 19, art. 51.

[22]     Advisory Opinion Concerning Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, International Court of Justice (ICJ), 9 July 2004, ICJ Rep 136, para 139 [online][accessed 26 February 2013].

[23]     Nils Melzer, Targeted Killing supra note 8, p. 288.

[24]     Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), December 19, 2005 , J.C.J. 116, para. 147 [online][accessed 26 February 2013].

[25]     United Nations, Statute of the International Court of Justice, 18 April 1946, art. 38(1)(b) [online][accessed 26 February 2013].

[26]     North Sea Continental Shelf Case (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands), International Court of Justice (ICJ), 20 February 1969, ICJ Reports 1969, para. 77 [online][accessed 26 February 2013].

[27]     Alston, Targeted Killings, supra note 1, p. 295.

[28]     M. Cherif Bassiouni, International Crimes: ‘Jus Cogens’ and ‘Obligatio Erga Omnes’. In: Law and Contemporary Problems. Vol. 59, No. 4, p. 68.

[29]     C. Tomuschat, Obligations Arising for States Without or Against their Will, 241 Recueil des Cours (1993), p. 307.