from the two epics, the law pertaining to warfare was also found to exist in
the Code of Manu i.e. Manusmriti which was developed on the basis of customs,
rules and laws in force in India between B.C. 200 and 200 A.D.. The manusmriti
referred to the protection of war victims which in today’s world in a very
important aspect of the IHL.
China, the law of warfare was seen to be prescribed in “The Art of War” which
was a foremost classic of Chinese literature on military strategy. It included
aspects like respect for prisoners of war, avoiding needless violence to enemy
military and civilian personnel. Infact, in this “The Art of War” Sun Tzu
advocated the idea of defeating the enemy with morality and emphasized on
devising skilful strategies to subdue enemy army without engaging it.
Succinctly, it focuses on avoiding unnecessary suffering.
in ancient India there was a practice among the Greeks and Romans pertaining to
announcing of commencement of the hostilities by a formal declaration of war.
This custom prevalent in those times is found to be present in today’s ‘The
Hague Convention (III) Relative to the Opening of Hostilities, 1907 in Article
1. The Article 1 provides that the hostilities between the contracting powers
‘must not commence without previous and explicit warning, in the form either of
a party’s reasoned declaration of war or of an ultimatum with conditional
declaration of war’.
first “modern” developments of IHL arose from the expansion of maritime
international trade and the corresponding need for an enhanced protection for
commercial vessels. This led to the adoption of a treaty called the 1856
Declaration of Paris, signed at the end of the Crimean War (1853-1856). The
Declaration has been argued to be the first time states used a treaty to create
new rules on the laws of war. Before then treaties had been used to cement
alliances or bring wars to an end, but such agreements were concluded without
purporting to change the law itself. Certainly the Declaration of Paris was the
first general IHL treaty and was centered on the maritime law of neutrality.
Declaration of Paris primarily had three
focal points; the first one being abolishing of privateering; privateering was
an act by way of which the belligerent states used to attack the enemy shipping
as well as the merchant vessels and this posed a great threat to world maritime
trade and safety; the second being seizure of enemy goods on neutral vessel and
neutral goods on enemy vessel, so the merchant goods were afforded protection
against the acts of the belligerent states. However an exception was provided for
contraband goods and goods that would aid in prosecution of war meaning
thereby, that these kinds of goods could be seized; the third issue centered
around maritime blockade; since the entire Declaration of Paris revolved around
the maritime aspect of warfare therefore the third element was concern
regarding maritime blockade, the belligerent states in times of war had the
tendency of obstructing the maritime commerce routes which in turn hindered the
world maritime trade and commerce and its security. Thus, at this Declaration
it was sought to end this maritime blockade. This however was again seen as protecting
trade without any efforts to mitigate the effects of war on civilians.
of the major development in IHL occurred during the American Civil War wherein
Lieber Code came into being. The code was completed in 1863 and contained 157
articles. It was a first ever attempt towards codification of the laws and
customs of war and it covered many areas thereof. The Lieber Code had a great
influence in the codification of the modern day IHL and finally internationally
legal binding treaties were adopted the first being in the Hague Conference of
1899 and then revised in 1907.
came the Geneva Convention of 1949 and the Additional protocol I in 1977 which
acts as the binding law even now. Another major component of the corpus
of contemporary IHL treaties are the four Geneva Conventions adopted in 1949,
just after the Second World War. The “Geneva Conventions” of 1949 were
adopted in order to prevent the abuses seen during that war. The “Geneva
Conventions” contain hundreds of provisions, all dealing with the protection of
persons rather than the conduct of hostilities. The two first conventions
concern the protection of wounded and sick in armed forces in the field
and at sea, respectively. They result from the revisions of former conventions
on that subject. The third one deals with the protection of captured
combatants, who are entitled to the status of prisoner of war. This is a
fundamentally revised version of the 1929 Geneva Convention. Only the fourth
Geneva Convention adopted in 1949 introduced a wholly new category of
“protected persons;” namely civilians. The development of new forms of
weaponry and the embrace of a “total war” philosophy meant that the Second
World War affected a far higher proportion of ordinary civilians than conflicts
in the recent past. The vast majority of the four Geneva Conventions apply only
to international armed conflicts. Only one provision is applicable to
non-international armed conflicts. This is Article 3 and, as it is written in
the same way in all the four conventions, it is generally called “Common
Article 3.” Common Article 3 to the four Geneva Conventions is a
rudimentary provision and grants only the most basic protection.