बिनय न मानत जलधि जड़, गए तीनि दिन बीति। बोले राम सकोप तब, भय बिनु होइ न प्रीति ।।
-Ramcharitmanas
War and War Crimes: A Conceptual Note
War, in common parlance is a word that signifies a conflict between two or more nations, based typically upon political considerations as final end objectives, military being actively involved in combat scenarios, and civilians spearheading the national emotional phenomenon to synchronise the same with the national interest. Since time immemorial, it has been a norm that great powers overpower the lesser ones or the meek ones to establish a much wider control of theirs so as to exploit national natural resources of the conquered land, venture out and capture what is alluring to the eye, extract what is wanted whether animate or inanimate; and do all of this via methods- either inhumane or humane. War for that matter since earlier centuries has been quintessential to maintain one’s superiority over the subordinate jurisdictions. The theory of ‘White Man’s Burden’ is a point in this matter. Well known across the world, and deftly as well as blindly followed by the British conquerors, this doctrine resulted in badly demarcated borders, troubled populations, lost homes, severed familial ties, broken relationships and horrors of the worst imaginable types. The India-Pakistan border crisis and the cross-border migration from both sides, is a locus classicus of the same.
If one sees the history of wars, not only overt warfare operations, but also silent covert intelligence operations also crop up in one’s memory. Wars have led to economical failures, political instability, traditional and cultural erosion of values, ethos, morals, breakdown of civilian contact and critical infrastructure, fear of large scale migration of population, and national disunity in times of crisis beyond control. War is a human-made calamity with weapons of mass destruction, and nuclear warfare looming large as a frightening perils on the innocent populations. War does not only lead to the aforementioned consequences, but also war crimes, which lead to prolonged fog of war and smoked mirrors, long after the actual ground battle ends. Humanitarian laws and code of conduct in a war can be traced way back to the principles of Bhagavada Gita, military code of conduct of Mahabharata and Ramayana, the Code of Hammurabi (partly), philosophies of Henry Dunant in France and Austria, and various Geneva Conventions.
War crimes lead to incurring of personal criminal responsibility to the individual involved in war, who is debarred from taking the defense ‘working under the authority of the superior’ in such case scenarios. The Geneva Conventions of 1864, 1906, 1929, and 1949 led to establishment of protection of – affected soldiers in a war on land, care and protection of soldiers at sea, protection and treatment of prisoners of war, and protection of civilians during war, in that order. Additional protocols of 1977 and 2005, add on meaningfully to the existing laws. The infamous Nuremberg Trials and Tokyo Trials, are some examples of trial of war criminals much after the actual wars ended on paper. Additionally, act of war can be simply termed as an action by a hostile state that includes armed conflict/ any recognised act that is considered hostile, and effectively marks the throwing open of war-related hostilities, leading to open conflict in a military manner.
Act of War and Indian Legislations
War crimes are considered as acts against the humanity and an act of war is considered an open-ended hostility against the whole population of another State. Indian constitution, by all means establishes the principles of justice, equity, fairness, and constitutionalism, by all means whatsoever, and the closest that the grundnorm of the nation comes to addressing war-like situations, or act of war is Article 352 that deals with national emergency provision. Supplementing the same is Article 356 that deals with President’s rule and has provision to extend the ‘state emergency’ in a state, if war is persisting in any part of the country. Apart from this, Article 51 deals with maintenance of international peace and prosperity but does not addresses any war-like scenario. Under the International law, Article 2(4) of the UN Charter, member states are prohibited from using force against the political independence and territorial sovereignty of any other member state. However, substantially, Article 51 allows for the right to self defense when a war is raged on one’s jurisdiction or if the action is allowed/permissible by the UN authorities. Thereby, retaliating against an act of war includes both military action and diplomatic measures, which ever suits the attacked nation.
India, in consequence of the dastardly Pahalgam attack, declared that an act of terror will be an act of war and the supporters of terrorism and terrorists will be unequivocally viewed as terrorists themselves. Thereby meaning, that safe havens of terrorism will now be regarded as active supporters and collaborators of Pakistan, instead of separating the two entities. This leads to a beautiful synchronization with the Unlawful Activities (Prevention) Amendment Act, 2019, which gave the status of ‘terrorists’ to individual non-state actors as well, apart from recognising terrorist organisations, alone as perpetrators of hatred and non-state activities. This has led to enlarging the scope of ‘terrorism and terror-related activities’ under and against the Indian jurisdiction. Apart from this, the recent announcement has also added to the problems of both terrorists ans supporters of the same.
This change and bold move in the Indian military doctrine in addition to the already existing UAPA (Unlawful Activities Prevention Act), the Army Act 1950, the Navy Act 1957, the Air Force Act 1950, the Territorial Army Act 1948, and the National Security Act, 1980 has added a new front in the Indian national security paradigm. The Defense of India Act 1962, under the emergency powers and civil defense rules also deals with this situation matrix, with specialised tribunals with equally special jurisdiction being set up to deal with war-related cases. In addition to all of this, Article 246 of the Indian Constitution gives powers to the Parliament to make laws for the defense of India. India, thereby possesses adequate laws and legislations that deal with war-related scenarios and prosecution of those accused of the same, in any way whatsoever.
Parting Note
India, though possessing a number of laws and regulations in different spheres for national security issues, and protection of integrity and sovereignty of the nation, the same if supplemented with a national security strategy, will definitely work wonders for Indian territorial protection. Apart from this, the steps taken by the Indian government and the definitive retaliatory action committed by the Indian Armed forces, Indian Navy, and the Indian Air force along with other security agencies, are truly applaudable. India’s foreign diplomacy strategy and diplomatic breakthroughs have subsequently aided in putting India’s perspective at the forefront after Operation Sindoor. This definitely has aided in putting to the fore the perspective of the Indian side- that is totally against the idea of terrorism. The equivalent treatment of terror attack to an act of war is definitely a substantial step in the right direction. This will not only strengthen the Indian response to nay future terror attack but will also lay down a fertile ground for a robust and militarily sound national security strategy. Jai Hind.
