Ishi Rohatgi & Sanya Sethi, currently, third year students of the Jindal Global Law School, pursuing the B.A. LL.B course. 

DATE OF PUBLICATION- 25/07/2021

Introduction

 International Humanitarian Law (IHL) gained traction in the 19th century, however, the

principles of this law were rooted in the ancient civilizations. Ancient India is regarded as a harbinger of such principles which perceived war as undesirable and advocated for peaceful negotiation before use of force. These principles were codified in the Rig Vedas, Manusmriti and through customs.[1] An important turning point in Ancient India took place with the Kalinga War in 256 BC. The war, described as a deadly war, entailed suffering and violence on the battlefield.

On witnessing the suffering that it caused, Ashoka renounced war and promulgated his rock edicts to encompass his policy of Dhamma. [2] This policy of Dhamma was secular in nature, and focused on the moral teachings including non-violence, equality of law and non-discrimination. While he rejected aggressive warfare, Ashoka was comfortable with conquest through the policy of dhamma. However, this had to be accompanied with light punishments, and no torture. He preached this policy not only in his empire, but also to his neighbors and maintained friendly relations with them. The significance of this war and the policy of Dhamma can be seen through the modern-day efforts to humanize armed-conflicts.[3] Human rights and IHL aim to ensure that the world does not have to witness a modern-day Kalinga. This paper focuses on how the policy of Dhamma has been incorporated in IHL, and its present-day implications on armed-conflicts.

International Humanitarian Law and Dhamma

Geneva convention is one of the earliest attempts by modern states to acknowledge and improve humanitarian conditions during wartime. The Geneva Convention came into force in 1863 but has undergone major improvements after World Wars I & II, which were instrumental in identifying areas where the convention lacked.[4] The widespread suffering caused in the wars prompted the states to improve the humanitarian conditions of the war, similar to what Ashoka went through. The International Committee of Red Cross (ICRC) which is given the right to assist the wounded, the sick, captured civilians,[5] bears resemblance to the office of Mahamatras who attended to the needs of Ashoka’s empire.[6] The most important aspect of both the Geneva Convention and the Policy of Dhamma was the treatment of the prisoners of war. This includes humane treatment, access to sufficient food, clothing, medical care and housing. They can be tried by the laws of the captor country, but the process must be impartial and without discrimination.[7] Ashoka believed that if the war is necessary, it has to be accompanied with light, reformatory punishments, and there must be equality of law. [8] Article 35 of Protocol I bans the use of weapons which cause unnecessary suffering and damage to the natural environment and aims to prohibit aggressive warfare. At present, most armed-conflicts arise due to internal conflicts. In pursuance of this, Common Article 3 extends its applicability to such conflicts as well. Similarly, while Ashoka had largely envisaged war with enemies and neighbors, he was cognizant of the conflict existing within his own empire owing to the hierarchies of the caste system. [9] With the progression of such internal conflicts, this was a necessary element added to the Geneva convention.

Furthermore, Article 5 of the Rome Statute, the treaty that established the International Criminal Court (ICC) enumerates some of the most serious crimes in International Law, which include genocide, war crimes, crimes against humanity and the crime of aggression. Additionally, under Article 8 of the Rome Statute, a grave violation of the Geneva Conventions is considered to constitute a war crime.[10] It can be argued that Ashoka’s policy of Dhamma resonates in the preamble to the Rome Statute of the ICC. It acknowledges that such grave crimes threaten the peace, security and well-being of the world, similar to what Ashoka promulgated in his 13th rock edict[11] which emphasised on conquest through peace and non-violence, and not war. The preamble also acknowledges that different cultures are pieced together in a shared heritage and this delicate mosaic may be shattered at any time due to which it becomes important to tolerate differences in opinions as they are not conducive to happy relationships, something which was also propounded by Ashoka through his 12th rock edict.[12]

Moreover, he was in favour of distributing the task of implementation of dhamma to selected officials (Mahamatras) who would act as intermediaries between him and his people, different from the usual functionaries of bureaucracy[13] which is similar to the role of the independent permanent ICC which acts as an intermediary between the party states and the international community as a whole. Moreover, the Office of the Prosecutor[14] (OTP) which acts as an independent organ of the ICC acts as an intermediary between the Court and the parties to a particular matter. Lastly, enslavement is prohibited as it is considered a crime against humanity,[15] and even Ashoka was particularly concerned about the relationship between the servants and masters, as well as the treatment of prisoners[16] because he believed that these should be the subjects of general concern in any society.

Present-Day Implications and Challenges

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While IHL echoes the principles laid down by Ashoka, their real value comes from their effectiveness during the armed-conflicts. During the Eritrea & Ethiopia war, ICRC visited over 1,000 Ethiopian Prisoners of War and 4,300 Civilian internees. They were also successful in exchange of messages between the prisoners and their families. ICRC played a similar role in Iraq in 2003-2004, in the Russian & Georgia War in 2008, and many others.[17] However, the violations of the Geneva Convention are much more prevalent than its benefits. Inhumane treatment of prisoners, murder, torture, and the suffering of civilians is part of every armed-conflict. [18] Moreover, Geneva has failed to keep up with the pace of the changing nature of war.

The ambiguities that exist within Common Article 3 has provided states with a loophole to evade this provision altogether.[19] Moreover, the growing use of private military, security companies, and other non-state actors, who have made civilians as their soft target are just some of the ways that the Geneva convention falls short. [20]

The Syrian conflict, which has lasted for over 10 years has been one of the worst violators of the provisions of the Geneva convention. While the ICRC is able to deliver some medical care, and relief supplies,[21] the reality of the conflict is marked by the use of weapons of mass destruction, bombing of hospitals, schools, along with arbitrary detention of people.[22] The conflict in Sudan was marked by similar violations, including burning people alive, killing people with disabilities and so on. Syria and Sudan have made rampant use of chemical weapons, cluster munitions and landmines, weapons which have been expressly prohibited by the Geneva convention.[23]

While the Geneva convention has been ratified by most countries, it is mostly neglected. For instance, in 2015, in Kunduz, Afghanistan, Taliban attacked the only functional hospital of the city. Soon after, the US conducted an air strike, which caused widespread suffering and injury.[24] After the bombing, the US claimed that the bombing was a mistake. [25] This incident shows the ease with which the states can evade responsibility in absence of any sanction mechanisms. The humanitarian violations and the suffering caused in these conflicts not only represent a repetition of the Kalinga war, but have also worsened with the modern-day developments. Therefore, in order for the importance of the Geneva Convention to not get diminished, it is required for it to adapt itself with the changing warfare.

Furthermore, although the ICC has been helpful in filing the gaps that existed in the international legal system previously by acting as a deterrent and increasing the possibility of bringing a conflict to an end, it is perceived by many states as a failure despite the glimmer of hope that it appeared to be. A major reason for the disappointment was its inactivity till the year 2009 when the first case was opened. Luis Moreno-Ocampois, the first Chief Prosecutor has been generally critiqued for his continuous failure which added to the reluctance of the states to be a part of the Rome Statute. [26] As many countries have still not ratified the Rome Statute due to which they do not fall under the Court’s jurisdiction, this becomes another factor causing problems in administering justice across the board.

​Besides achieving success as well as failures, the ICC, just like any other international body has been facing challenges with respect to dealing with war crimes. Since its inception, enforcement has been a major problem hampering the success of the ICC. For instance, in the conflict in Darfur, Sudan where certain ministers were issued arrest warrants for committing crimes against humanity and war crimes, the Sudanese government claimed that it does not need to execute the warrant as Sudan is not a party to the Rome Statute.[27] A commission was ordered by the United Nations Security Council (UNSC) to probe into the matter and a resolution was passed by the UNSC in 2005 which provided the ICC with jurisdiction to indict for the crimes committed in the region. [28] Consequently, charges against Omar-al-Basheer were filed by the ICC for committing war crimes and crimes against humanity in the year 2008. [29] However, wide condemnation of the warrant by the African Union and the Arab League [30] as well as the lack of cooperation on Sudan’s part proved to be a serious challenge to the ICC in Darfur. Furthermore, criticisms were raised with respect to the Court’s investigations of war crimes in Uganda on the claims that it did not reflect a true picture and the approach jeopardised citizens and the state in war-affected areas.[31] Therefore, it is important to develop an independent mechanism for enforcement in order to surmount these problems and to enable the ICC to achieve its mission for dispensing justice.

Is History Repeating Itself?

After witnessing the suffering that ensued during the conquest of Kalinga, Ashoka renounced war and turned to Buddhism and non-violence. 32 Similarly, the Geneva Conventions and ICC developed in the aftermath of two major wars in world history, World War II and the Cold War’s respectively. They aimed to make the world a better place by attempting to avoid conflicts among nations and reduce suffering during conflicts. However, given the challenges that they currently face, they are not in a position to counter situations similar to the Kalinga War. Therefore, it becomes extremely important to find viable solutions to avoid such future conflicts.