Author : Manoj Joshi

Originally Published 2013-10-31 07:24:47 Published on Oct 31, 2013
There is no doubt that the armed forces personnel need some form of indemnification for killing or injuring non-combatants who get caught in the crossfire when the armed forces are acting in good faith in a counter-insurgency campaign.
Vulnerabilities in armed conflicts
"Earlier this month, I had to attend the 14th Bruges Colloquium organised by the International Committee of the Red Cross and the College of Europe. The theme of the discussion was a selection of issues relating to vulnerabilities in armed conflicts, an area which the Red Cross has made its focus. The colloquium examined aspects of the protection of particularly vulnerable persons in armed conflicts.

The programme included discussions on protections guaranteed under International Humanitarian Law (IHL) to persons in detention and medical personnel. It also addressed the issue of sexual violence and the recruitment and association of children with armed forces or armed groups and cross-border humanitarian aid. Last year’s colloquium dealt with the scope and application of the International Humanitarian Law as such, and the year before the theme was legal framework relating to international peacekeeping operations.

Speaker after speaker spoke knowledgeably about this and that aspect of the Geneva Conventions and its various protocols, and the other international conventions that collectively constitute what specialists call the IHL aimed at protecting people who are not participating in hostilities and regulating the means and methods of warfare.

There were dozens of professors, bureaucrats, lawyers, and other specialists who are professionally involved in the study or practice of international humanitarian law. This contrasts sharply with the situation in this part of the world. While there are some NGOs and individuals concerned about human rights issues, there is hardly any body of knowledge and specialisation that relates to international humanitarian law.

What was striking for me was the extent to which the subject had developed depth in Europe. While Europe has certainly known terrible wars, it was the erstwhile Yugoslavia’s civil wars that once again focused on the European interest in this area. This led to the creation of a UN sanctioned International Criminal Tribunal for former Yugoslavia, which has tried and sentenced several people for grave breaches of the Geneva Conventions, laws and customs of war, genocide and crimes against humanity. This has also given impetus to the creation of the International Criminal Court which India and China have declined to join and which does not have UN sanction.

In essence, the IHL comprises of the Geneva Conventions which comprise of four treaties and three additional protocols that seek to ’humanise’ war, a seeming oxymoron, but an important one. The first three treaties of 1864, 1906, 1929 were given a realistic touch after the worst war the world has known, World War II. The fourth Geneva Convention of 1949 defined the war time rights of prisoners, both civilian and military, created protocols for the protection of the wounded, and defined ways in which non-combatants could be protected in a war zone. These conventions have been accepted by almost all the countries of the world, though several countries like India have avoided signing the additional protocols that relate, for example, to non international armed conflicts, or the small insurgencies that have afflicted us.

Grave breaches of the IHL-which can range from willful killing, torture, inhumane treatment, hostage taking, deportation, destruction of property unjustified by military necessity-are what constitute war crimes. Over the years, these have gained greater currency through the creation of the international tribunal in The Hague which has sentenced a number of people for war crimes in the Bosnian war, and more recently for some of Africa’s vicious conflicts.

At the colloquium, discussions also focused on another feature of conflict-sexual violence - which is not covered by conventional international laws.

Sexual violence was seen as a collateral damage of war and there was no perceived need to address it as an issue if IHL. But the kind of violence that women have endured in various vicious conflicts in Bosnia, Rwanda, Democratic Republic of Congo, Libya and Syria have convinced people of the need to develop the law in regard to sexual violence as well. Associated with this is the issue of the right of women who have been impregnated by rape to abortion.

There was a discussion as to what happens when armed conflict takes place between non-international actors. By and large, the Geneva Conventions apply to inter-state conflict and issues like treatment of POWs, or civilians are taken up through this. But when, say, the Sri Lankan armed forces fight the LTTE or India fights one or the other insurgent group in the North East or the Maoists, there is no real body of law dealing with the issue.

Ironically, instead of promoting laws which outline the rights and protections of people caught up in conflict involving the state and non-state actors, the Indian debate has been about a law, the Armed Forces Special Powers Act (AFSPA) which provides protection to the armed forces personnel involved in such conflicts.

Now, there is no doubt that the armed forces personnel need some form of indemnification for killing or injuring non-combatants who get caught in the crossfire when the armed forces are acting in good faith in a counter-insurgency campaign. But equally, there is need for the state to outline a law that protects the ordinary people from excesses that may be committed by errant members of the same armed forces or non-state actors involved in the conflict.

(The writer is a Distinguished Fellow at Observer Research Foundation, Delhi)

Courtesy: Mid Day, October 29, 2013

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Manoj Joshi

Manoj Joshi

Manoj Joshi is a Distinguished Fellow at the ORF. He has been a journalist specialising on national and international politics and is a commentator and ...

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