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ISIL Year Book of International Humanitarian and Refugee Law |
| You are here: | WorldLII >> Databases >> International >> Journals >> ISILYBIHRL >> 2001 >> [2001] ISILYBIHRL 21 |
For the past more than eighteen years, Sri Lankan Tamils have taken refuge all over the world, including within their own country, Sri Lanka, in search of their life and liberty. A large number of these refugees, nearly 250,000, at one stage, have come to the state of Tamil Nadu in India. Professors Suryanarayan and Sudersen have done well to focus on the plight of these refugees and the way they have been treated in India during the different phases of their influx and return. This has been done not only in the overall context of refugee movement all over the world, but also against the persisting ethnic war that drove them out. An interesting point brought out by the authors is the high percentage of Indian Tamils, about 30%, among the refugees.
The way the Sri Lankan refugees have been treated in India has been discussed objectively by the authors. The tensions generated by the presence of refugees between the Central and the state governments in India as well as the Indian concerns about their security and foreign policy interests have been explained. The authors are right in saying that not adhering to the 1951 UN Convention on Refugees has not hindered India from evolving a balanced and humanitarian approach towards the refugees. They seem to be inclined to favour in India adopting a national refugee law, but how will that facilitate the Indian approach, is not clarified. India has, entertained individual refugees even without such a law all along.
On the whole the treatment of the subject by the authors is scholarly, compassionate and meticulous. Cross-country comparisons about the status of the Sri Lankan refugees could yield relevant policy insights. It would also have been interesting to explore the tensions generated among the refugees due to their diverse social, economic and regional backgrounds. Perhaps, the authors did not have the time and space to attempt a comprehensive study of this nature. Hope that this book will encourage them and the UNHCR, to get such a study done.
S.D. Muni[1]
Towards National Refugee Laws in South Asia is an edited book. The first part analyses the 1997 Model National Law from a legal perspective. The second part is generally political in nature. The volume does not, however, succeed in doing justice to either approach raising “Why this hybrid?” Since the first two papers have already been published and disseminated in South Asia under the title: “Fifth Informal Regional Consultation on Refugee and Migratory Movements” (Kathmandu, 1999, pp. 60-74) and is also not clear why these two papers were chosen to be reprinted.
It may have been better for the book to have focussed on specifics, for instance, the idiosyncratic circumstances in Bangladesh warranting amendments of the 1997 Model National Law. Unfortunately the book deals only very sporadically with this. An up to date pithy overview of the refugee situation in Bangladesh has not yet been covered in RMMRU publications (Malik gave an excellent overview in Third Informal Consultation”, New Delhi, 1996, pp. 24-56); its concomitant impact on the provisions of a national Refugee Act would have dovetailed with the more general discussion.
S. S. Wijeratne’s International Refugee Law and the Proposed Model National Law on Refugees for Countries in South Asia and The Model National Law on Refugees: A Comparative Review of the 1951 Convention relating to the Status of Refugees, the OAU Convention and the AALCC Principles by Wei Meng Lim-Kabaa contextualise the Model National Law by referring to other international refugee instruments. An interesting addition would have been a reference to the (more detailed) AALCC Model Legislation.
“Towards National Refugee Laws in South Asia” is a reflection of RMMRU’s ongoing campaign for national refugee laws in South Asia; particularly SAARC countries.
With regard to the Model National Law, it would be useful to make a compilation of the travaux preparatoires for future use by scholars and judiciary alike. In perspectives from the Region only eight South Asians experts have been interviewed regarding the need for refugee legislation. Other legal experts in this field could have been interviewed regarding the need for refugee legislations. While all the interviewees are proponents of a national legislation, not all seem to favour acceding to the 1951 Convention and / or 1967 Protocol. Each participant provides the prevailing arguments in the respective countries for and against a legal regime, but the policy-making processes are hardly touched upon and remain opaque.
In state, Refugees and the Need for a Legal Procedure C.R. Abrar in favour of lines up most arguments a national law while taking a critical view of the Bangladesh track record of refugees’ treatment. While it was “generally quite satisfactory, if not ideal” (p.49). Abrar observes that serious human rights violations committed by the Bangladeshi authorities against both asylum seekers (flagrant cases of refoulement) and refugees (in order to expedite ‘voluntary’ repatriation), attracted major international criticism. However, a former Bangladesh Foreign and Law Minister is quoted as saying “We do not drive the Burmese refugees out or torture them” (p. 53)
Proceeding of the Consultation on The Need for a National Law on Refugees, Dhaka, 28 August 1999) was the first such national consultation in Bangladesh in which MPs, Ministry of Foreign Affairs officials, academicians, the UNHCR representative and jurists interacted and expressed their views. Most of them supported a national law. The chairperson concluded the proceeding metaphorically: “The suggested model legistation is not only a skeleton, the skeleton also has missing limbs” (p. 81 ) A lot of work remains to be done on the Model law, starting with the acceptance of the principle that such a law is required (a consensus could not be arrived at in the Consultation), and then details have to be worked out. The ongoing discussion would also provide an occasion to dispel a number of misconceptions of refugee law (see infra).
Where should the bird fly after the last sky? is the Postscript to the National Consultation by Shahdeen Malik pleading Bangladesh to reach out to refugees. He takes exception to the utterance of an MP in the National Consultation who claimed that “I am sure that if we accept the Conventions designed and imposed by the West, we will be patted on the head and sent to the bed like good little boys and more so if we carry out these in our municipal legislation. [... ] Why am I to pass refugee legislation - a country least able, to keep refugees? Why [...] not [...] Americans[...] Canadians, or [...] Australians, who have masses of land, plenty of money, enough resources to take these refugees?” (p. 66).
The suffering of others, according to Malik, is the focus of refugee law and status. Hence, a nation such as Bangadesh, born itself amidst enormous suffering, has no right to exclude others, suffering in places beyond the border, as borders are mere lines on a map. He adds that a state which refuses to establish a mechanism for dealing with the suffering of others will soon cease to care for its own suffering population.
A great merit of the book is undoubtedly the discussion between South Asians as they give a rich insight into the current regional thinking on refugee law. Any publication on the refugee situatian in South Asia is laudable, for relatively little interest is shown by South Asian or other scholars as compared to the proportion of refugees in the region vis-a-vis the world total. Unfortunately, as most material in the book stems from 1997, 1998 and 1999, a more timely publication would have increased the value.
The main drawback of the book is the significant number of inaccuracies: it is striking how some refugee resource persons lack clarity in their use of the precise terminology and fundamental concepts of international (refugee) law. An incorrect use of terms often reveals a limited or even erroneous understanding of the issues at hand; as for instance, the definition of refugees (“refugees (from abroad)” (p. 28); “Refugees [...] specially [...] those who had been forced to leave their country’ (p. 51 ), or of asylum (“The laws [...] in other countries are those on political asylum. That is basically sought by political leaders, political workers” (p. 62);
It may prove to be counter-productive when a book containing “handy tool for refugee law campaigners” (preface): At a time when the raison d’ etre of the 1951 Convention is publicly being questioned (most recently in Great Britain), and non-entree measures are being implemented in most western countries, publications such as this make a real contribution to the global refugee debate. More water will have to flow under the Meghna bridge, however, before it will be entirely clear whether South Asia is moving in the same direction of increasingly restrictive measures, but the writing is already on the wall: India adopted the Immigration (Carrier Liability) Act, 2000. [2]
While edited volumes of articles and essays are a familiar feature of contemporary publishing, the notion of a ‘reader’ - a themed collection of extracts from a variety of different books and articles - has generally fallen into disuse. That is something of a shame. For as B.S. Chimni demonstrates with this new publication, there is considerable value in a volume that provides readers with direct and easy access to a wide variety of literature on a given subject.
As the title of the volume indicates, Chimni’s given subject is that of international refugee law - a concept that he interprets in a sensibly broad manner. Thus in addition to chapters on the refugee definition, asylum, UNHCR, and the rights and duties of refugees, Chimni’s collection examines issues such as causes of refugee flows, the notion of state responsibility, durable solutions and the protection of internally displaced persons. In addition, Chimni provides a concluding chapter of readings on the legal condition of refugees in India.
Chimni’s volume has a number of important assets. It is comprehensive in scope. The readings presented are generally well chosen, drawing from a wide range of contemporary and historical sources. And Chimni’s commentary, presented in a preface and in the introduction to each chapter, provides an incisive, honest and user-friendly guide to the contents of the book.
In the opinion of this reviewer, Chimni has correctly resisted the temptation of assembling a set of purely legal readings, choosing instead to incorporate a substantial amount of material from anthropology, sociology, political science and philosophy. The result is a volume which places international refugee law in an operational context, and which provides an ideal introductory resource for students, scholars and practitioners alike.
Dr. Jeff Crisp [3]
This is an excellent monograph touching upon the different groups of refugees in the countries in the South Asian region. This very useful monograph which deals with a major live issue of considerable significance to the overall security and stability of South Asia.
This monograph has attempted to look at the refugee problem prevailing in the South Asian sub-continent in all its perspective and in so doing, has thrown up some fresh food for thought. By looking at the four major issues, even if not very exhaustively, which are of direct importance to the context, namely, protection, aid, state behaviour and regional approach, the monograph makes out a case for evolving a regional approach to deal with refugee problems in the area rather than on a restrictive national scale by each of the South Asian countries. This suggestion has to be viewed in the light of the prevalent geo-political confronting this region. In this context, the factors enumerated by the author which generate refugees in this region, beside the politics behind the manner in which the unfortunate refugee situation has been put to abuse in furthering violence and terrorist activities, highlight the geo-political ground realities which are not necessarily conducive for evolving a regional approach at least for the present. Therefore, it seems that one has to wait for opportune moments to make the suggestion of the author a practical possibility.
The author has taken pains to identify the specific causes of flow of refugee in South Asia. Author has made it a point to draw attention to the fact that unlike in the case of ‘population displacements’ which was characteristic of the cold war confrontations between super powers, it is “destructured conflicts” or “low intensity wars” that is causing such movements in the South Asian region.
It is noteworthy that the monograph has drawn pointed attention “Refugees as a Threat to the Host Country” an aspect of the `refugee scene’ which is not frequently touched upon. The author has identified situations when the refugee situation gives rise to “security/instability framework”.
He has therefore, rightly drawn attention to a reality that “The sending-country can be at risk as well, especially when the host country arms the refugees to invade the home country”. These aspects have been dealt with in the monograph with the help of examples and events which have and, in some cases are continuing, to happen nearer home. What is more, the all important linkages with drug trade as well as narco-terrorism and their consequences both to the host and receiving countries have not been lost sight of by the author.
The monograph is a timely addition to the literature on such a vital segment of governance at the national and international levels.
T. Ananthachari[4]
It is generally difficult to compile a book such as this as there are far too many documents on the topic to fit into a single volume such as the present one. All one can hope for is to intelligently extract the most relevant and important documents on the subject. In this endeavour, Dr. Sinha has succeeded admirably.
The book contains some of the most important, and therefore basic, documents in the field of International Human Rights and Refugee Laws. Having been a student of law, and a practising lawyer, I have often felt the need to refer to a single source where I could find some of the basic documents on human rights and refugee laws, and have often rued the fact that such a compilation did not exist in India, or was not easily available, or was not exhaustive enough. Dr. Sinha’s venture has fulfilled a long felt need on the subject.
The division of the book into segments containing the various aspects such as the International Bill on Human Rights, Genocide and War Crimes, Rights of the Child, Rights of Indigenous Peoples, Regional arrangements for the protection of Human Rights, Refugee Instruments and also the inclusion of important Indian legislation makes the book easy to use and a pleasure to browse. In fact, the exhaustive bibliography offers a treasure of reading material for persons who desire to be introduced to the subject, and is also a handy reference point for those already initiated to the subject.
Jayant Tripathi[5]
West Bengal has been a major host to the massive refugee inflows. The partition led influx of Hindus from Pakistan during 1947-50 and the Liberation war triggered refugees during 1971-72 changed the very demographic content of West Bengal for many years to come. The management of East Pakistanis (Bangladeshis) is still afresh when over 10 million refugees came to Eastern and North Eastern India on the eve of Liberation War in Bangladesh. After a massive relief operation most of them were voluntarily repatriated within a year of their arrival. A UNHCR document entitled A Story of Anguish and Action, (Geneva, November, 1972 p. 79) mentioned that:
“During the peak months of Jan. and Feb. 1972 the repatriation effort placed great pressure... encouragement was hardly needed. Visitors to the camp areas during that period marvelled at the unending streams of people on the trek, walking, riding bicycles or rickshaws, standing on truck platforms, with the single purpose in mind of reaching as soon as possible their native places in East Bengal. In January, a daily average of 210,000 persons crossed the Bangladesh Border.”
However, this major refugee flow, its management and its after effects were largely submerged and diluted in the jubilance and cacophony caused by independence of Bangladesh. This was possibly one of the most serious refugee flows to India and in South Asia that drew maximum worldwide attention. Yet surprisingly even the academic treatment extended to this entire refugee issue has been utterly poor and inadequate.
This volume puts together a dozen of articles on various issues related to refugees in West Bengal, which for many years remained a major theatre as the refugee host region. More importantly, this volume deals with the two major influxes of the immediate aftermath of partition and the liberation war of East Pakistan.
Pradip Bose raises the issue of cultural dimension of refugee hood, a much ignored aspect. He tries to relate it to the question of rehabilitation. If effective rehabilitation is to be built then the refugee managing institutions should go much beyond the construction of ideal-typical refugee concept and incorporate in them the cultural and social milieu that have characterised the past of the refugees.
Sandip Bandyopadhyay mentions as how the local organizations mobilized both human and financial resources to deal with the 1971 influx. He only touches about the role of international organizations including the UNHCR. This issue has been of critical importance, as India has not signed both the international refugee instruments viz., the 1951 UN Convention Relating to the Status of Refugees and 1967 Protocol Relating to the Status of Refugees, and also not enacted a domestic refugee law or procedure.
Possibly this was for the first time India permitted the UNHCR to involve itself in the relief and rehabilitation operation. This issue of extending UNHCR a role in the refugee management in the country has hardly been meaningfully discussed and debated in the academic circle also.
There are interesting analysis of the legal rights of the refugees and their resettlement pattern by Sarbani Sen, Alok Kumar Ghosh and Dipankar Sinha. Sinha gives an interesting account of Bijoygarh market which is called the oldest and the largest refugee settlements of West Bengal whereas Ghosh looks into very fundamental issues faced by the refugees at Dandakarayna. He concludes that this project “a delayed and hastily improvised scheme for dispersal of the refuges ultimately failed to rebuild the broken minds of those uprooted people who needed a tremendous psychological boost to contain their frustration”. Manas Ray tries to recount some of the vivid memories of the refugees both at the country of origin and at the host country.
There exists a very meager amount of literature on the refugees in India. This book definitely adds significantly to the existing debate on how refugees are to be treated and managed with or without the international support. This also highlights as what went wrong in some of the refugee related institutions. Equally interesting issue which runs as an undercurrent in this book is about the gradual resistance the host could develop because of compassionate fatigue. The debate on the refugees is likely to enliven in very near future both in the context of its security implications and the South Asia wide humanitarian concern about them. West Bengal is an example which absorbed the onslaught of the refugees in a quiet and effective manner.
Dr Mahendra P Lama [6]
In the Swahili language the term for the refugee is Mkimbizi, which literally means “a person who runs”. In the well known edited volume, Selected Papers on Refugee Issues, Marc Sommers has contributed a thought provoking essay on the Burundi refugees in Dar es Salaam. Many refugees express disgust at the continued use of the refugee label even after two decades of exile. Some believe that being “Mkimbizi not only identifies them as people who were compelled to flee their homeland in fear for their survival, but who continue to flee”.
Being a refugee is one of the most tragic experiences in life. It forcibly separates one from familiar surroundings, from near and dear ones and leads to a gloomy feeling of estrangement. As an Iranian refugee in Canada put it:” Exile like death, but without death’s ultimate mercy, has torn millions of people from the nourishment of tradition, family and geography”. Ezat Mossallanejad has graphically described how the refugees are used as scapegoats for all the socio-economic shortcomings of the host society. What the Greek dramatist, Aeschylus, wrote in 403 BC, holds true even today after the lapse of 2,500 years. To quote Aeschylus: “Everybody is quick to blame aliens. This awkward situation creates impassable barriers for exiles in their attempts to participate in the social life of their host countries”.
The book under review examines the major refugee crises of the last fifty years and the changing nature of the international response to the problem of forceful displacement. As Sadako Ogata, the UN High Commissioner for Refugees, mentions in her Foreword, “With over a million people forced to flee their homes in Kosovo, East Timor and Chechnya in the last year of the 20th century alone, it is clear that the problem of forceful displacement has not gone away, and is likely to remain a major concern of the international community in the 21st century”. It is also a sobering reminder of the international community’s “continuing failure to prevent prejudice, persecution, poverty and other root causes of conflict and displacement”.
The qualitative difference in the response of the international community becomes apparent if one compares the present with the past with particular reference to African continent. In the 1950’s and the 1960’s, when the winds of liberation began to sweep Africa, from Algiers in the far north to Angola and Mozambique in the south, hundreds of thousands of people fled to the safety of neighbouring countries. They were welcomed as comrades in struggle. They could return to their homelands after independence to become political leaders, teachers, doctors, lawyers, farmers and businessmen. Botswana offered citizenship to few displaced people. Tanzania went further and offered land to those refugees who wanted stay permanently. Recalling those heady days, Julius Nyerere, President of Tanzania, remarked: “This was a colonial struggle and we expected that one day they would go back to their countries. Africa’s leadership was also very optimistic about the future and very innocent of what they would encounter in building that future... We never expected that after colonial rule, we would have flights of refugees from independent states, tearing themselves apart”.
Thirty years after the signing of Organisation of African Unity (OAU) Convention on Refugees, the African continent is seething with refugees. Refugees are on the move. The book describes the exodus of over two million Rwandans to Zaire, Tanzania, Burundi and Uganda following the Rwandan genocide in 1994. The chapter highlights “how many of the refugees in the camps were effectively held as political hostages and how they were used as “human shield” by those who had carried out the genocide”. The chapter also illustrates “how the politicisation or militarisation of refugee camps and settlements can result in armed attacks and incursions into neighbouring countries, which can destabilise entire regions in the process”.
The UNHCR started as a small organisation in the early 1950’s to solve the problems of displacement of 400,000 refugees who were rendered homeless after the Second World War. Today the number of UNHCR employees has increased; its range of activities has multiplied and its geographical scope has expanded. Its annual budget in 1999 has reached US Dollars one billion; it has offices in 120 countries and employs more than 5000 people. During early years, its activities were “reactive, exile oriented and refugee-specific”. In contrast, today it is “pro-active, homeland oriented and holistic”. It caters to the needs of not only the refugees, but also internally displaced people, returnees, asylum seekers, stateless people and others”.
The book traces the major crises situations faced by the UNHCR - for example, mass displacement in Europe after the Second World War, flight of the refugees from Hungary after 1956, the aftermath of the decolonisation in Africa, the Bangladeshi refugee situation, the travails of the Boat People from Indo-China, and the refugee outflow from Afghanistan, Horn of Africa and Central America; displacement from the former Soviet Union, war and humanitarian crisis in the Balkans and the Rwandan genocide. This significant, timely publication will be of immense value to all those interested in international affairs, especially the problems of the refugees. Sadako Ogata underlines “the linkages between human displacement and international peace and security:” It is vital that the international community continue to seek lasting solutions to problems of human displacement. Those who would ignore them do so at their peril. History has shown that displacement is not only a consequence of conflicts; it can also cause conflict. Without human security, there can be no peace and stability”.
V. Suryanarayan[7]
The recent border skirmish between the Indian Border Security Force Personnel and the Bangladesh Rifles Organisation personnel involving the killing and mutilation of the dead bodies of sixteen soldiers of the former by the latter has brought to the fore the need for knowledge, understanding and awareness of the rules of International Humanitarian Law on the part of political leaders and government officials of the member countries of the world community in general and in particular the defense personnel of these countries. It is axiomatic that similar incidents are bound to recur in the context of wars and other armed conflicts between the nation-states, which may drive the skeptics to surmise that the laws of war are at the “vanishing point of international law”. It is needless to say that there is an urgent need, in the status of present context of the international relations, for the replacement of the kind of skepticism by a resurgent optimism based on respect for, and observance of, the rules of International Humanitarian Law. This object can be effectively achieved only by a programme of more concerted and vigorous efforts of teaching of International Humanitarian Law at various levels and, in particular, to the members of the defence personnel of the member countries of the international community. This object should not remain as a mere unattainable international aspiration for too long. It is imperative that this aspiration has to be transformed into an international reality.
It is a matter of common knowledge for the students, scholars and lawyers of international law that while the first phase of international concern for the protection and observance of human rights has culminated in the adoption of the crucial international instruments aimed at the protection of human rights in general, the second phase of this concern has resulted in the adoption of the major instruments of international humanitarian law aimed at the protection, and observance of, human rights of the victims of both international and non-international armed conflicts. It may also be appreciated, in this context, that the main object and purpose of the induction of human rights standards in armed conflicts is to ensure that the physical suffering and agony of those involved in, and affected by, the armed conflicts is minimized.
It is in this context that one has to appreciate the relevance and importance of this invaluable book under review which is a compilation of the major articles, cases and basic documents on International Humanitarian Law. The most striking feature of this work is its comprehensive treatment of the subject as the authors seek to present to the reader all the relevant materials on International Humanitarian Law at one place. The book has been divided into three major parts which are devoted to an extensive discussion of various humanitarian dimension of the laws of armed conflicts, international as well as non-international. While Part I, which is subdivided into 15 chapters, covers and deals with all important aspects of the laws of armed conflicts under the title “Out line of International Humanitarian Law”, Part II which is sub-divided into 2 chapters, has been devoted to an instructive and incisive analysis of a large number of cases and basic documents relating to the past and contemporary armed conflicts. Part III with its sub-division into 5 chapters, exclusively deals with the teaching of International Humanitarian Law.
The authors have commenced Part I with a discussion of the “Concept and Purpose of International Humanitarian Law” in chapter 1, highlighting the conceptual and philosophical aspects of the International Humanitarian Law and have concluded the same with an account of “The International Committee of the Red Cross (ICRC)” in chapter 15, focusing approach to the humanitarian problems that arise during armed conflicts. In between the authors have discussed several aspects of International Humanitarian Law including those concerning “International Humanitarian Law as a Branch of Public International Law”, “Historical Development of International Humanitarian Law”, “Combatants and Prisons of War”, “The Protection of Civilians”, “The Law of Non-International Armed Conflicts”, “Implementation of International Humanitarian Law” and “International Law and International Human Rights” in chapter 2, 3, 6, 8, 12, 13 and 14, respectively.
Examining the status of International Humanitarian Law as a branch of Public International Law against the backdrop of a brief analysis of the contentious issue of its legal status, the authors in chapter 2, have expressed optimism about the efficacy of the rules of International Humanitarian Law. The authors feel that the rules of International Humanitarian Law, developed at a time when the use of force was lawful in international relations will have great impact on the contemporary international relations in which the use of force, subject to certain exceptions, has been abjured by a peremptory norm of international law. According to them, the claims of International Humanitarian Law for respect and observance must be viewed independently of any argument of jus ad bellum which should be distinguished from jus in bello. The authors are of the view that there should be complete separation between jus ad bellum (legality of the use of force) and jus in bello (humanitarian rules to be respected in warfare) as they think that “[a]ny past, present and future theory of just war...cannot justify...that those fighting a just war have more rights or less obligations under IHL than those fighting an unjust war”.
Chapter 4 deals with the sources of contemporary International Humanitarian Law which are both conventional and customary. These are: the Hague Conventions of 1907, the Four Geneva Conventions of 1949 and the two additional Protocols of 1977. As is evident, the IHL which is one of the most codified branches of international law has the great advantage of being non-controversial and beyond doubt as the codified rules are in “black and white and ready to be applied by a soldier without needing first to make a doctoral research on practice”. According to the study, the only disadvantage of this treaty law, as of any treaty law, is that it does not have an automatic binding effect on all states. And this is the main reason for the 1977 Additional Protocols, which are crucial for the protection of the victims of contemporary armed conflicts, not being able to bind nearly 50 states which include “some major powers frequently involved in armed conflicts”.
Chapter six has been devoted to a discussion of the legal principles that deal with the status and responsibilities of the combatants and the treatment of the Prisoners of War. The combatants, who are members of armed forces, have an obligation to respect the IHL which includes the obligation to distinguish themselves from the civilian population. While dealing with the rules regulating the treatment of Prisoners of War, the authors rightly opine that the regulations of the Geneva Convention III constitutes a compromise between the interests of the detaining power, the interests of the power on which the prisoner depends and the prisoner’s own interests.
In chapter 12, the book highlights the need for the applicability of the rules of IHL in situations of non-international armed conflicts. Despite the differences between the legal regimes for international and non-international armed conflicts, the authors rightly think that from the humanitarian point of view the victims in both situations need similar protection. This distinction would involve a needless and unnecessary exercise on the part of the humanitarian actors and the victims of qualifying the non-international armed conflicts before they can invoke the protective rules of IHL. They are of the opinion, and rightly so, that such a qualification is not only theoretically difficult but also always politically delicate. Therefore, they advocate the plea that the present rules of contemporary International Humanitarian Law of international armed conflicts should be made applicable to situations of non-international armed conflicts even though such a plea will not be in harmony with the very concept of the contemporary international society of sovereign states with all implications. The authors are of the view that the study of the law of non-international armed conflicts is more important as it is these kinds of conflicts that occur more frequently than the international armed conflicts and entail more suffering to the victims than the international armed conflicts and that the IHL of non-international armed conflicts should provide solutions to similar problems than those arising in international armed conflicts. They have also expressed their concern at the utter lack of respect being shown to the black-letter provisions of common Article 3 to the 1949 Conventions and of the Protocol II of 1977 which are meant to provide some kind of protection to the victims of contemporary non-international armed conflicts.
The issue of implementation of the International Humanitarian Law has been extensively discussed in chapter 13 of Part I of the book. The authors have focused on the imperative need for securing respect for, and observance of, the rules of International Humanitarian Law by advocating the proposition that the obligations provided by IHL are obligation erga omnes. This is, perhaps, implicit in Article 1 common to the 1949 Conventions and 1977 Additional Protocol I under which the states undertake not only to respect (pacta sunt servanda) but also to “ensure respect” for International Humanitarian Law. It may be noted that this principle has received the approval of the International Court of Justice in Nicaragua vs. U.S. (1986, I.C.J. Reports, p.14) when it recognized that the IHL principle belongs to customary international law and applies in situations of non-international armed conflicts. However, the authors have expressed their concern at the contemporary state practice which has unfortunately been not rich enough to determine the upper limits of law a state may ensure respect.
Examining the scope of various mechanisms for the implementation of IHL, the authors rightly feel that the traditional decentralized scheme of implementation of international law is inappropriate for the implementation of IHL applicable to armed conflicts. Even the more centralized mechanism envisaged under the U.N. Charter, which is dominated more by power structures than by rule of law, is not very appropriate for IHL. Therefore, the authors have emphasized on the need for, and obligation of, dissemination of the rules of International Humanitarian Law. In their view the whole population of a state must have a basic understanding of IHL in order to realize that certain minimum rules will apply in armed conflicts independently of who is right and who is wrong. This can only be achieved by the integration of the rules of IHL into the national legislations of the member countries which must be effected by the states as soon as they become a party to the relevant instrument. Such legislations are imperative because the rule of IHL not only permit but also require all states to prosecute war criminals regardless of their nationality, nationality of the victims and where the crime was committed.
International Humanitarian Law as an aspect and off-shoot of international human rights law has been examined in chapter 14 along with their distinctions and convergence. It goes without saying that the rules of International Humanitarian Law have been increasingly influenced by the “human rights – like thinking”.
As already mentioned earlier, Part II of the book analyses around 190 cases and several basic documents relating to the past and contemporary international and non-international armed conflicts which, for certain, will serve as a treasure trove of research materials for the students and scholars of International Humanitarian Law. While chapter 1 of this part explains the statements on International Humanitarian Law, chapter 2 deals with cases and basic documents. The most salient feature of this chapter is that all the cases and documents have been arranged in chronological and geographical order.
The last part of the book gives an extensive outline for the teaching of International Humanitarian Law. This part is highly valuable for the universities which wish to introduce courses on IHL. While chapter 4 of this part provides a comprehensive outline of different course streams which include international organizations, international criminal law, and international refugee law, etc., chapter 5 deals with the teaching of IHL to journalists who ought to develop the art of reporting the national and international news about armed conflicts from a humanitarian perspective.
In conclusion, it must be mentioned that the book under review will serve as an invaluable and handy guide for all those who wish to pursue their studies in the area of International Humanitarian Law.
Prof. B. Errabbi [8]
[1] Former Ambassador and Professor, School of International Studies, South Asian Division, Jawaharlal Nehru University, New Delhi.
[2] V.W. Peter, Ph.D scholar, Jawaharlal Nehru University, South Asian Division, School of International Studies, New Delhi.
[3] Head, Evaluation and Policy Analysis Unit, UNHCR, Geneva.
[4] Director-General, Border Security Force (Retired).
[5] Jayant Tripathi is a practicing lawyer in the Supreme Court of India and is currently engaged in refugee protection issues.
[6] Professor, South Asian Division, School of International Studies Jawaharlal Nehru University, New Delhi 110 067.
[7] Dr. V. Suryanarayan is former Director and Senior Professor, Centre for South and Southeast Asian Studies, University of Madras
[8] Visiting Professor of Law, NALSAR University of Law, Shameerpet, Hyderabad, A.P.
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