War is a phenomenon of organized collective violence that affects either the relations between two or more societies or the power relations within a society. War is governed by the law of armed conflict, also called "international humanitarian law." The concept of international humanitarian law goes back to ancient history and exists in every culture, religion, and tradition. It is closely linked to the history of war. In all historical periods, leaders set up rules and taboos that determine what is allowed and what is forbidden in military activities.

These rules aim at trying to maintain control, discipline, and efficiency of military forces. They also aim at limiting the impact of violence and destruction on the physical and mental integrity of combatants, in order to facilitate their return to society after the conflict has ended. The first laws of war were not universal but regional. Indeed, the first Chinese treaty was drafted by Sun Tzu during the sixth to fifth centuries BC.

Most of its principles were inspired by religion and aimed at humanizing social, political, and military relationships. However, these rules were enforced only between people of the same cultural background. If the enemies did not speak the same language or were from a different religion, these rules were not respected. The theory of "just wars" or "holy wars" is an illustration of the ambiguity of such a phenomenon.

This theory progressively moved from the requirement of "just war" to the requirement of "just means." Subsequently, European lawyers such as Grotius, Vittoria, or Vattel, as well as Muslim lawyers such as Chaybani, transformed moral standards into legal rules, thereby anticipating contemporary universal codification.

It is worth noting that, in the area of jus gentium, important Islamic writings were drafted before-and therefore probably influenced-European codification. Contemporary international law encompasses these traditions-therefore giving them a universal character. Contemporary international law limits the conditions under which a State may resort to force. It restricts the means and methods of war allowed, regardless of the objectives pursued.

Since the beginning of mankind, humans have resorted to violence to settle disagreements. Therefore, the suffering surrounding the violence has been immense ever since. Moreover, just like the advancements in all aspects of life, violence has also been right up there. Earlier, people used to fight with swords to acquire the lands of other kings.

Then, the discovery of gunpowder and guns was witnessed, and later with increasing wars all around the globe, there was a need for better resources that's when nuclear weapons were established. However, with so much violence around through the ages, the ones that suffered and continue to suffer the most are civilians and those who are incapable to fight. Therefore, some people have restored to limit the brutality of the war. This humanitarian spirit led to the formation of the 'Law of war' or as we commonly know them as International Humanitarian Law (IHL).

"Only the dead have seen the end of the war." -- George Santayana

Objective Of International Humanitarian Law

Wars are fought between countries to achieve a purpose or to resolve disputes. Therefore, the major object of the humanitarian laws is to achieve the purpose and not cause unnecessary destruction to human life. Moreover, this initiative of less destruction to human life is achieved by limiting the war amongst the soldiers and not attacking civilians or non-competent in the war. Furthermore, treating every person in the war with humanity regardless of which side they are on. For example, humane treatment for prisoners of war and wounded or sick soldiers.

Difference Between International Humanitarian Law And Human Rights Law

IHL and international human rights law are complementary bodies of international law that share some common aims. Both IHL and human rights law strive to protect individuals' lives, health, and dignity. However, people often confuse the two with each other but they both have a different meaning and apply to different sets of people. Let's understand this. IHL applies to situations where armed conflict is involved, whereas when we talk about the international human rights law it applies to peacetime activity as well as armed conflict.

Therefore, it will be safe to say that, IHL talks about treating the non-combatants with humanity during a situation of war. However, the international human rights law deals with treating everyone with basic human dignity at all times.[1]

Another major difference between the two is their geographical application. It is evident that the IHL applies to situations of war, therefore, the countries party to the war will be under the ambit of these laws. However, human rights laws apply to all persons within the jurisdiction of a state. Therefore, the IHL has an extraterritorial jurisdiction limited to the countries of war whereas the human rights law has unlimited extraterritorial jurisdiction.

Definition Of War

According to Hall, "when differences between State reach a point at which both parties resort to force, or one of them does acts of violence which the other chooses to look upon as a breach of peace, the relation of war is set up,in which the combatants may use regulated violation against each other, until one of the two has been brought to accept such terms as his enemy is willing to grant."

Starke has also pointed out that "war in its most generally understood sense was a contest between two or more States primarily through their armed forces, the ultimate purpose of each contestant or each contestant group being to vanquish the other or others and impose its own conditions of peace." According to Prof. Oppenheim, the chief objective of war is to overwhelm the enemy and to impose conditions upon it.[2]

According to the old definition of war, is mainly a contest between the armed forces of the belligerent States. But in the modern period it is often seen that war takes place not only between the armed forces of the belligerent States, but also affects the citizens of the States concerned. The most glaring example of this is the dropping of atom bombs at Nagasaki and Hiroshima, during the Second World War which caused devastation unprecedented in the annals of the World.

It may, therefore, be said that the old definition of war does not conform to the modern wars. According to Oppenheim the time-honoured distinction between members of the armed forces and civilians has been deeply affected by following five developments which have appeared during and since the First World War:

• Growth of the numbers of combatants
• Growth of numbers of non-combatants engaged in war preparation
• The development of aerial warfare
• Economic measures
• The advent of totalitarian States

He further adds, "However, while these factors have had the effect of blurring the established distinction in many respects and of necessitating a modification of some of the existing rules, they have left intact the fundamental rule that non-combatants must not be made the object of direct attack by the armed forces and the civilian population."

Early Sources & Modern Sources.
Early Sources
From the perspective of Indian subcontinent mythology the earliest definition or discussion of war was done under the "Mahabharata"

"One should not attack chariots with cavalry; chariot warriors should attack chariots. One should not assail someone in distress, neither to scare him nor to defeat him. War should be waged for the sake of conquest; one should not be enraged toward an enemy who is not trying to kill him."

The first part of Christian Bibles, based primarily upon the Hebrew Bible, a collection of ancient religious writings by the Israelites believed by most Christians and religious Jews to be the sacred Word of God.[3]

Deuteronomy the fifth book of Torah.

"When you besiege a city for a long time, making war against it in order to take it, you shall not destroy its trees by wielding an axe against them. You may eat from them, but you shall not cut them down. Are the trees in the field human, that they should be besieged by you? Only the trees that you know are not trees for food you may destroy and cut down, that you may build siegeworks against the city that makes war with you until it falls."

It even describes that the "offer of peace" should also be given.

In the early 7th century, the first Caliph, Abu Bakr, whilst instructing his Muslim army, laid down the following rules concerning warfare.

Stop people, that I may give you ten rules for your guidance in the battlefield.

Do not commit treachery or deviate from the right path.

You must not mutilate dead bodies. Neither kills a child, nor a woman, nor an aged man.

Bring no harm to the trees, nor burn them with fire, especially those which are fruitful. Slay not any of the enemy's flock, save for your food.

You are likely to pass by people who have devoted their lives to monastic services; leave them alone.

Modern Sources
With the evolving in the practice of the warfare, there has been considerable change in the meaning and the perspective towards the war.

First modern international lawyer, "Hugo Grotius" in his classic treatise "De Jure belly ac Pacis"

Definition of war by Prof. Oppenheim in his "British Manual Of Military Law, Part III" "A contention between two or more States, through their armed forces, for the purposes of overpowering each other and imposing such conditions of peace as the victor pleases." An armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.[4]

However, this definition was not questioned or criticized till 18th Century. In one of the leading case "Bas vs Tingy"[5] arguments for recognition of a state of partial war. In this case it was particularly discussed the position of France whether the word 'enemy' cannot be applied to the French; because the section in which it is used, is confined to such a state of war, as would authorize a re-capture of property belonging to a nation in amity with the United States, and such a state of war, it is said, does not exist between America and France. The former law relates to re-captures from the French, and the latter law relates to re-captures from the enemy.

Held-If congress had chosen to declare a general war, France would have been a general enemy; having chosen to wage a partial war, France was, at the time of the capture, only a partial enemy; but still, she was an enemy.

Professor Hanson says: Ultimately, war is a question of economics, in which the options of all states are confined by their ability to produce goods and services; thus, every armed force calibrates the greatest military power for the least cost.[6]

Objective Approach
The traditional approach to define war is based on objective tests. According to this approach, war exists as a matter of international las when certain things are done. The traditional approach treats intention of the States engaged in war irrelevant. The main focus of this approach is the existence of armed hostilities between the States.

According to Oppenheim, war is a contention between two or more States through their armed forces for the purpose of overpowering each other and imposing such conditions of peace as the victor pleases. Oppenheim's definition has three elements, namely: firstly, war is an armed contention; secondly, the parties to war are States, and thirdly, the purpose of war is imposition of unilateral conditions of peace by the victor over the vanquished.

Explaining the first element, Oppenheim points out that war is a violent struggle between States through the application of armed forces and, therefore, the unilateral acts of force by one State (reprisals, pacific blockade, etc.) without a previous declaration of war may be a cause of the outbreak of war, but not war in themselves, so long as they are not answered by similar hostile acts by the other side, or at least by a declaration of the other side that it considers them to be acts of war.

Therefore, Oppenheim objectively concentrates upon the acts of the belligerents and not the intention of the belligerents. In relation to the second element of his definition of war, Oppenheim interprets the word "State" literally and treats a vassal State and a Member State of a Federal State as "State" within the meaning of his definition of war. Obviously, Oppenheim does so to make room for the coming into operation of the rules of warfare contained in customary and conventional international law.[7]

Hall also holds traditional view. According to him, when difference between States reach a point at which both parties resort to force, or one of them does act of violence which the other chooses to look upon as a breach of peace, the relation of war is set up, in which combatants may use regulated violence against each other, until one of the two has been brought to accept such terms as his enemy is willing to grant. Starke also seems to be influenced by the traditional view when he points out that war, in most generally understood sense, is a contest between two of more States primarily through their armed forces, the ultimate purpose of each contestant group being to vanquish the other and impose its own conditions of peace.

The abovementioned definitions suffer from two main fallacies. Firstly, the use of armed force is not necessary for the existence of war. For example, if two nations declare war one against the other, war exists, though no force whatever might have been used. Several states which declared war on Germany during World War II never resorted to acts armed force against her. Furthermore, act of one state is sufficient to resort to war. It is not necessary that all the warring States should perform such an act for the existence of war between them. The state of peace between government requires a concurrence of governmental wills. The state of war arises when one of these wills is withdrawn.

Subjective Approach
The subjective approach focuses itself on the intention of the belligerent States. According to this approach, war exists when both or possibly one of the contesting States means it to exist. The actual things done are treated as irrelevant even if these things amount to fighting with the authority or without the authority of its own government. The major thrust of subjective approach is that animus belligerandi or the animus (intention) of at least one of the belligerents is material in determining whether a state of war exists or not.[8]

Julius Stone considers that under customary international law, international war is a relation of one or more governments to at least one other government in which at least one of the such governments no longer permits its relations with the other or others to be governed by the laws of peace. Stone's conception of war appears to be more realistic in as much as it excludes armed hostilities from the scope of war. Furthermore, Stone's conception of war envisages that the act of one State is sufficient for the existence of war between two or more States. Stone wittily observes that while it takes two to make a quarrel, it takes only one government to make a war.

Thus, Julius Stone's conception of war avoids the fallacies of the definitions of those writers who hold the traditional view. Stone adopts subjective view as he concedes that to constitute a war in the sense of international law, the hostile intention must at least be directed by one government against another government, or some authority which for the purpose of hostilities has the status of a government since it has been accorded the status of a belligerent.

The "intent" test to determine the legal state of war is subjective in as much as it is not possible to define "intent". The "intent" can only be deduced from the acts and statements of both or at least one of the belligerents. One evidence of such "intent" may be a declaration of war, either absolute or conditional (that is, by way of ultimatum) by both or at least one of the belligerents.[9]

Non-War-Armed Conflict
As remarked by Lord Mac Naughten, "The law recognises a State of peace and State of war but it knows nothing of an intermediate State which is neither one thing nor the other-neither peace nor war." As pointed by another author "the legal condition of war has not arisen since 1945, and upon an optimistic view of international relations and the role of the United Nations is unlikely to occur in the near future. But the text books of international law distinguish only conditions of war and peace, not the conditions of limited hostilities which have occurred, and unhappily will continue to occur.

The question that arises is how much of the traditional law of war is applicable to this twilight situation which is neither peace nor war and is unrecognised by many jurists". He further adds, "Finally, a definition of limited war will prove to be, helpful in classifying the concept of law to be utilized. It is proposed that the expression 'limited war covers the situation of hostilities not amounting to declared war, which, are limited in respect of

1. the area of operations
2. the weapons employed and
3. the targets engaged.

We have sufficient experience of limited war in this sense for international lawyers to be able to propose new rules for what is new phenomenon. As pointed out by Starke, significant changes have come in the modern wars. In the modern period, many armed conflicts have taken place in which neither the war were followed and nor the rules of war were followed nor there were the effects of war in accordance with the laws of war.

In this connection, he cites the examples of the Korean conflict from 1950 to 1953:
Indo China War, Cango conflict of 1960 to 1963 and Indo-Pak, conflict of 1965. Since the declaration of war is not made, neither are there full effects of war in accordance with laws of war nor the duties and rights of the neutral States are properly defined and determined. In view this consideration, Starke has called such wars as non-war armed conflicts. In his view following are some of the reasons for the development of this category of war.

1. The States concerned do not want that their conflicts should be regarded as the violation of obligations arising out of international treaties. For example, they do not want that the conflict should be regarded as the Paris Pact of 1928 through which the States had renounced war as an instrument of national policy.
2. The belligerent States also do not want the States not taking part in the wars may declare their neutrality so as to evade the rules of neutrality.
3. It is also their desire to localize the conflict and not to allow it to take the form of general war.

Further practice in the non-war conflicts has revealed the tendency of States to apply most of the rules governing a war stricts sensu to non-war armed conflicts.[10]

Difference Between Jus In Bello And Jus Ad Bellum

Jus in bello and jus ad bellum are two major ingredients for countries that are going to indulge in armed conflict. The latter talks about whether the countries may resort to war or not. The right to war is discussed under jus ad bellum. Moreover, it not only talks about the prohibition but the exceptional conditional under which the countries can go to war. However, the former talks about the condition after the war has been declared. Therefore, it is crystalline that it governs the laws on how the state conducts the war. It seeks to minimize suffering in armed conflicts, notably by protecting and assisting all victims of armed conflict to the greatest extent possible. It is essential to note here that IHL is a part of jus in bello and it aims to protect both parties irrespective of any circumstances.[11]

Roots Of International Law Of War

Hostilities between two dynasties, nations, or people from the inception of time have been dealt with violence. People never thought of it as a social ill until the late 1800s. They always thought that war is a necessity to survive, and lived by the philosophy of the survival of the fittest. Therefore, the inhumane treatment of the people during the war was the least of their worries. Subsequently witnessing all these sufferings various treaties and customary international laws were formed and accepted as a medium to regulate war over the years.[12]

Need For Amendment Of The Laws Of War

According to Judge Nagendra Singh, in view of change in the methods of war of development of devastating weapons particularly nuclear weapons, it has become necessary to bring about changes in the laws of war. Besides this, following are the reasons which have necessitated changes in the laws of war:

1. Development of the concept or total war
2. Expansion of the world community as a result of the independence of new States
3. Development of human rights
4. Need for protecting the civilian population from the scourge of war
5. Need for enforcement of human rights during war
6. The laws of war were codified long ago since then revolutionary changes have taken place

They should, therefore, be revised and recodified. The First and Second World Wars exhibited the inadequacy of the existing laws of war. Josef L. Kunz has, therefore, rightly remarked, That the Laws of War are actually in a chaotic state and urgently need revision, is a fact which cannot be challenged.[13]

Law By Treaty

The law of war was first founded by Henry Dunant, in his book, 'A memory of solferino' he wrote about his experiences during the battle of solferino. After seeing so much suffering around the war, he was shaken. That is when he wrote his book and took the initiative to devise a law that differentiates between combatants and non-combatants. He was of the view that wars are bound to happen but there should be certain rules binding to the countries at war, in order to minimize the suffering for the non-soldiers. His initiative and views were later converted to, what is today known as the Geneva Convention, which is one of the major conventions of international humanitarian law.[14]

Geneva Convention

When people talk about the Geneva convention, they associate it with the last and final draft of the convention, that is, Geneva Convention 1949. However, it was first formulated in 1864 and was revised three times, in 1906, 1929, and lastly in 1949. The last and final amendment deals with 4 volumes, and each one talks about different issues related to war. Let's see what these issues are:
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1. Protects wounded sick soldiers on land (GCI).
2. Protect wounded, sick, and shipwrecked soldiers at sea (GCII).
3. Treatment of prisoners of war (GCIII).
4. Protection of civilian persons (GCIV).

Additional protocols in the Geneva convention widen its scope. There were three protocols: API, APII, and APIII. The first protocol deals with international armed conflict (conflict between two or more countries) and the second protocol deals with non-international armed conflict (conflict within one country). Both these protocols were added to the Convention in the year 1977. However, the latest addition to these protocols was made in the year 2005, which deals with the additional distinction emblem. Under this red crystal emblem (emblem used by medical professionals, non-competent, etc.) was introduced. [15]

Another important founder is Francis Lieber, he is the founder of the Lieber Code. However, this Code was not accepted internationally, it was accepted in the national law. Moreover, all the countries found it hectic to formulate their laws of war, therefore, it was copied by many countries. Interestingly, it became the basis for the formation of the Hague law, which is the most important law in international humanitarian law and one of the first laws that were accepted by the countries at war.

Initially, the Hague conventions talked about two different issues. The Geneva conventions talked about the protection of people that are no longer part of the war or have not been a part since the very beginning. However, the Hague convention talked about the means and methods of warfare. Let's understand the Hague convention.

Hague Convention

Hague conventions were introduced twice, initially in 1899 and then in 1907. At the time no exhaustive laws were surrounding the issue of humanitarian law. Therefore, Martens Clause in the Convention was added for the countries that did not give their assent for the peace convention, which stated that in case of any law in force, the principle of humanity and the order of public conscience shall be obeyed. Four major issues were talked about in the initial convention, they are:

1. Prohibiting the discharge of projectiles or explosives from balloons.
2. Prohibiting the use of asphyxiating gases.
3. Prohibiting the use of expanding bullets.
4. Limitation of weapons proposal.

All the countries agreed on the first three issues because they were causing excessive suffering to the people. However, none of the countries agreed on the last issue of restricting their weapons in the war. Subsequently, in 1907 only the first issue was raised and was agreed upon.[16]

However, it is essential to take note here that, these are a few of the most important conventions, there are a lot more conventions that talk about international humanitarian law. These were just the very first ones that started the revolution of giving humane treatment to people during external aggression or armed conflict.

Law By Custom

According to Salmond, "custom is the embodiment of those principles which have commended themselves to the national conscience as principles of justice and public utility". Therefore, it will not be out of place to state here that law by custom is an established pattern of behaviour that can be objectively verified within a particular social setting. Two essential features have to be looked into when talking about the customary law during the war:

• A certain legal practice is observed and
• The relevant actors consider it to be a law (opinio juris)

Judicial decisions play a major role in customary law. An international military tribunal was set in Nürnberg and Tokyo post World War II, to charge people for the crime of war. Moreover, they also delivered guidelines for the other international court to follow, as the number of cases after the war seemingly were very high.[17]

For example, In Shimoda v. Japan[18], a Japanese Court held that the use of atomic weapons against Nagasaki and Hiroshima was contrary to international law, not merely because of the type of weapon used but because bombardment, by any means, of the civilian population of those two cities, was contrary to the Article 23 of the Hague Conventions of 1907. This set a precedent for all the wars in the future, to abandon the use of such deadly weapons.

Another acceptable form of customary law is opinio juris, an example of this is the Martens clause of the Hague Convention. Which clearly stated that regardless of the state's party to the treaty in force they have to follow the humanitarian law.

Effects Of The Outbreak Of War:

The convenience of our study, we will discuss the effects of the outbreak of war under the following headings:

General Effects

Besides affecting the neutral States, war mainly affects the belligerent States. According to Oppenheim, it is wrong to say that due to the outbreak of war all the relations of belligerent states and that of their citizens come to an end. Although peaceful relations of the belligerent States and, international law prescribed certain limitations and prohibitions and the relations of the belligerent States during war are governed by the laws of War.

Diplomatic and Consular Relations

At the outbreak of the war the diplomatic and consular relations between the belligerent States are broken and consular relations immediately. Consequently, the belligerent States recall their diplomatic agent from each other States. Often at the outbreak of war the receiving belligerent States hand over the passport to the diplomate agents of the enemy country which means that they should immediately return to their home State.

In this connection Art. 44 of the Vienna Convention on Diplomatic Relations, 1961 provides that it is the duty of the receiving States to provide necessary facilities to such agents so that they may return safely to their home State. In other words, we may say that until the diplomatic agents return to their respective countries and so long as they remain within the receiving State, it is the responsibility of the receiving State to see that their person and property are protected. As of October, 2018, 192 countries have become parties to Vienna Convention on Diplomatic Relations, 1961.

Treaties

According to the old view, all treaties are terminated between belligerent States after the outbreak of war. In the present times, many significant changes have come in this respect. The present practice of States shows that all the treaties between the belligerent States do not come to an end. Some treaties are completely terminated, some remain in force, while some others are simply suspended during war times. There are two main tests in this connection:

• Subjective test
• Objective test

According to the subjective test, in order to ascertain whether the treaty concerned is to be terminated at the outbreak of war, intention of the parties to the treaties is examined. If it is clear from the intention of the parties that the treaties are only for peace time, then they are terminated at the outbreak of war, in case it is clear from the intention that the treaties will remain in force irrespective of the war, then the treaties remain in force. According to the objective test, the termination or remaining in force of the treaties depends upon the facts whether the provisions of the treaty can be enforced in the context of war or to more precisely whether they it put it are inconsistent or not with the outbreak of war. On the basis of the above tests the practice of the States and the views of the jurists.
Starke has summed up as follows:

• Those treaties between the belligerent States for which common political action or good relations are essential, terminate at the outbreak of war. An example of such type of treaty is a treaty of alliance.
• Treaties regarding the establishment of completed situations or the fixation of boundaries remain unaffected by war.
• Treaties or conventions regulating the conduct of war remain binding during war upon the parties to such treaties or conventions. The Hague Conventions of 1899 and 1907 are such types of conventions.
• Those multilateral law-making treaties which are related to health, medicines, protection of industrial property, etc., are not completely terminated at the outbreak of war. They are simply suspended and are revised after the outbreak of war.
• Sometimes there are express provisions on the treaties which make it clear whether the treaties will remain in force at the outbreak of war.
• There are some types of treaties such as treaties relating to extradition which are simply suspended at the outbreak of war.

Thus, much depends upon the provisions of the treaties, intention of the parties, nature of the treaty, etc.

Trading and Intercourse in Commerce

All trading and intercourse between the belligerent States are prohibited during the war. It is a well-recognised rule of International Law that the treaties relating to trading and intercourse between the belligerent States stand terminated at the outbreak of war.

Contracts

The effect of the contracts at the outbreak of war between the belligerent States is a matter of municipal law rather than that of International Law. Consequently, belligerent States are free to make rules and to enforce them in accordance with the contracts. International Law leaves them free to make necessary laws regulating the validity or invalidity of contracts at the outbreak of war. The practice of the States however, shows that the executory contracts become completely invalid whereas executed contracts remain unaffected at the outbreak of war.

Enemy Property

Enemy property may be of two kinds:

• Public enemy property
• Private enemy property

Public Enemy Property: At the outbreak of war all movable public enemy property situated in the enemy State may be seized. The position in regard to the immovable public enemy property is, however, different. Immovable public enemy property may be temporarily taken but cannot be permanently seized. After the outbreak of war, it is determined as to what should be done in regard to this property. Consequently, the sale or disposal of the immovable public enemy property is not possible during war. Private Enemy Property: The practice of the States shows that the private enemy property situated in the territory of the belligerent State may be taken over for a temporary period. After the end of the war its fate is decided in accordance with the provisions of the peace treaty concluded, if any, between the belligerent States, the belligerent State is not entitled to seize the private enemy property, but can only take it if it is necessary for local needs. In short, we may say that private property can be temporarily taken only when it is essential for military purposes of the belligerent States.

Its plunder or seizure is contrary to International Law. For example, when India occupied certain Pakistani territories in the Indo-Pak war, 1971, it did not require the right to take private property of the inhabitants of those areas and to dispose them of. India, however, acquired the right to take over or use that property if it was necessary for the administrative purposes or for maintaining law and order in that area. There are, however, certain exceptions in this connection. The rules of International Law mentioned above are not applicable in case of enemy ship in the sea. The ship of enemy, whether, they are public or private, can be seized during war.

Combatants and Non-Combatants

Under International Law the soldiers of the belligerent States are divided into two categories:

• Lawful
• Unlawful

At the outbreak of war, lawful soldiers can be killed, grievously hurt, asserted or made prisoners of war. Lawful soldiers are ordinarily those soldiers who are in the regular army.

Unlawful combatants, however, enjoy certain facilities or concessions. They may also be arrested and made prisoners, but they cannot be killed or grievously hurt during war. As pointed out by Starke, Traditionally International Law maintains a distinction between combatants and non-combatants in as much as non-combatants are not in principle to be wilfully attacked or injured. Certain classes of non-combatants, for example, merchants' seamen may, however, be captured and made prisoners of war.[23]

In June 1977, Diplomatic conference on Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts was held on 8 June, 1977 two protocols to the Geneva Conventions of 1949 were adopted. The first Protocol is the Protocol Additional to the Geneva Conventions of 12 August, 1949, and Relating to the protection of victims of International Armed conflicts. Articles 43 to 45 of the Protocol contain some provisions relating to combatants.

Article 43 provides that members of the armed forces of a Party to an armed conflict (other than medical personnel and chaplains) are combatants that is to say they have the right to participate directly in hostilities. Article 44 provides that any combatant as defined in Article 43 (as noted above), who falls into the power of an adversary Party shall be a prisoner of war. In order to promote the protection of the civilian population from the effects of hostilities, combatants, are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack.

A combatant who falls into the power of an adversary while failing to meet the requirements set forth above shall forfeit his right to be a prisoner of war, but he shall nevertheless, be given protections equivalent in all respects accorded to prisoner of war by the third convention and by this Protocol. Article 45 further provides that a person who takes part in hostilities and falls into the power of an adverse party shall be presumed to be a prisoner of war and therefore shall be protected by the third convention if he claims the status of prisoner of war or if he appears to be entitled to such status, or if the Party on which he depends claims such status on his behalf by notification to the detaining power or to the Protecting Power.

Concept Of Total War

In accordance with the traditional definition of war, war is a contest between the armed forces of the belligerent States. Its object is to overwhelm the enemy and impose conditions upon the enemy. As pointed out earlier, this definition has become inadequate in view of the scientific developments and development of destructive weapons in the modern times. In the modern times, war not only affects the armed forces but also the civilian nature of the war is such that observance of the rules of war becomes impossible.

Such a war has, therefore, been called 'total war'. The term 'total war' was first used by Grotius. In this view thirty years war of Europe was 'total war'. According to Josef L. Kunz, the religious wars of 16th and 17th centuries were fought with such cruelty and barbarity that they can be called "total war'. He further adds, in accordance with the traditional definition of war, war is a contest between the armed forces of the belligerent States.[24]

Its object is to overwhelm the enemy and impose conditions upon the enemy. As pointed out earlier, this definition has become inadequate in view of the scientific developments and development of destructive weapons in the modern times. In the modern times, war not only affects the armed forces but also the civilian nature of the war is such that observance of the rules of war becomes impossible. Such a war has, therefore, been called 'total war'.

The term 'total war' was first used by Grotius. In this view thirty years war of Europe was 'total war'. According to Josef L. Kunz, the religious wars of 16th and 17th centuries were fought with such cruelty and barbarity that they can be called "total war'. He further added that 'total wars' do not depend upon the unprecedented development of natural sciences.

According to him "It is also clear that the total war will make illusory even such laws of war as are considered 'compatible with total war' such as rules concerning prisoners of war, sick and wounded and so ended that 'total wars' do not depend upon the unprecedented development of natural sciences. According to him "It is also clear that the total war will make illusory even such laws of war as are considered 'compatible with total war' such as rules concerning prisoners of war, sick and wounded and so on.

COMMENCING HOSTILITIES
'War' defined by Webster's Dictionary is a state of open and declared hostile armed conflict between states or nations, or a period of such conflict. However, it will be safe to say that not all armed conflicts are an act of war. For example, in the fighting over Manchuria between Japan and China from 1937 to 1945, the Japanese refused to call the conflict a war. The important question here is that can any country declare war against any other just because they wished to.

e answer is no, the UN Charter clearly states that no country can go into war. However, they do have a right to defend themselves against any hostilities from another counter under Article 51 of the UN Charter. For example, if one of the countries breach the peace with an act of aggression or at the border start deploying heavy weapons, then, in that case, the neighbouring country has the right to defend themselves and deploy some weapons of their own and if need to be use them to protect their country.[25]

Fides Etiam Hosit Servanda (Non-Hostile Relations Of Belligerents)

As noted above due to outbreak of war, non-hostile relations between the belligerent States, come to an end. But there are certain exceptions to this rule. Due to necessity of Circumstances, considerations of humanity and some other factors, some kinds of non- hostile relations of belligerents may continue.

As pointed out by Oppenheim, "It is a universally recognised principle of International Law that, where such relations arise, belligerents must carry them out in good faith. Fides etiam hosit servanda is a rule which was adhered to in antiquity, when no International Law in the modern sense of the term existed. But it had then a religious and moral sanction only. Since in modern times war is not a condition of anarchy and lawlessness between belligerents, but a contention in many respects regulated by law, it is obvious that where non-hostile relations between belligerents occur, they are protected by law.

Fides etiam hosit servanda therefore, a principle which nowadays enjoys a legal as well as moral sanction. Non-hostile relations may originate from Multilateral treaties or Convention (such as Geneva Convention of 1949) for the Amelioration of the condition of the wounded and sick, in Armed Forces in the Field, or from special agreements between belligerents. Such agreements may be entered into in respect of flags of truce, passports, cartels, surrender, capitulations and armistices.[26]

Enemy Character
Immediately after the outbreak of war between the States, a significant change comes in relations which are governed in accordance with the needs of war. States bring about changes in their behaviour against the enemies in accordance with the objectives of war. States determine their behaviour or treatment in accordance with the enemy character of the individuals, goods, corporations, ships, etc. T

Therefore, in order to regulate their activities and behaviour it is necessary to determine the enemy character of Individuals, goods, corporations, etc. Once the enemy character of individuals, goods, Corporations, etc. is determined, the beligerent State regulates its behaviour towards the enemy State accordingly.

Efforts were made to formulate the rules for determining enemy character in Second Hague Conference of 1977 and Geneva Naval Conference. But no tangible success could be achieved. During the First World War different tests and standards were used to determine the enemy character of individual goods, ships and corporations. From the practice of the States and the rules that have been formulated so far, we can derive the following conclusions:

1. Enemy character of individuals:
   Enemy character of individuals can be studied under the two headings:
   
   1. Enemy character of the individuals of the belligerent States:
      In regard to the enemy character of individuals there is no uniformity in the practice of different States. They determine the enemy character of individuals of belligerent State in accordance with the different tests and standards. For example, in Britain and America the enemy character of individuals is determined on the basis of their residence and domicile. On the other hand, the enemy character of the individuals in the continental countries (European countries excepting England) is determined on the basis of their nationality.
      
      In other matters, there is hardly any difference between the practice of Britain and America on the one hand and continental countries on the other hand. As pointed out by Starke: "Hostile combatants and subject of an enemy State residents in enemy territory are invariably treated as enemy persons and residents in territory subject to effective military occupation by enemy is assimilated for this purpose to be residents in enemy territory.[27]
       
   2. Enemy character of individuals of neutral States:
      The individuals of the neutral States who do not reside in the territory of enemy State are not deemed to be having enemy character. But if they participate in any activities against the belligerent State, then they may be deemed to having enemy character. Similarly, in accordance with the practice prevailing in America and England, if the individuals of the neutral States carry goods etc., to the enemy State or territory or continue intercourse with them, then they will be deemed to be having enemy character or in other words they will be treated as enemies. But the citizens of the enemy States living in the neutral States will not be deemed to be having enemy character.
       
2. Enemy character of Corporations:
   The enemy character of corporations is determined mainly by:
   
   1. their permanent residence,
   2. their registration.
       
   If a corporation is registered in enemy State, then it will be deemed to be having enemy character. The enemy character of the corporation is also determined by its permanent residence. By a permanent residence of the corporation is meant its existence and conduct of business. In regard to the enemy character of corporations, the leading case is Daimler Co. Ltd. v.Continental Tyre and Rubber Co., Ltd,[28] wherein important principles were propounded.
   
   In This case the most important principle that was propounded was that if the persons or agents of the corporation who are in de facto control of the company reside in the enemy State or territory, then the company shall be deemed to be having enemy characterту this case the House of Lords osbserved company may, however assume enemy character...or if its agents or the persons in de facto control of its affairs whether authorised or not, or resident in an enemy territory.[29]
    
3. Enemy character of Ships:
   The enemy character of ships is determined by their flags. This rule was adopted in Declaration of Geneva, 1909. By the flag of the ship is meant flag which the ship is legally authorised to use. For example, if a ship of France uses the American Flag, then it will be unauthorised. If the ship of an enemy State unauthorisedly uses the flag of a neutral State and is seized by the belligerent State then such a ship shall be deemed to be having enemy character. Consequently, enemy character of ships, which use the flags of neutral States but are actually under the ownership of the enemy State, will be determined according to the following tests:
   
   1. If the ship is in the service of enemy State or carries arms or takes part in the conflict.
   2. If the ship resists the valid right of the belligerent State to visit and search, then such a ship may be seized and it may be deemed to be having enemy character. If such a ship is seized the onus of proving rests on the owners of the ship that the ship belongs to a neutral State. If it is not proved then the ship and its cargoes are deemed to be those of enemies.
   3. If the vessel had no right to sail under the flag of neutral State, its real character will have to be determined in order to find out whether it has enemy character.
   4. The neutral merchantmen acquire enemy character if they are engaged in a trade with enemy in time of war. This practice is prevalent in Britain, America and Japan.
       
4. Enemy character of goods:
   It is a well-established customary rule that a goods found on board an enemy merchantman are presumed to be enemy goods unless the contrary is proved by the neutral owners. Ordinarily, enemy character of the goods is determined by their ownership. If the owners of the goods are the residents of the State, then the goods may be deemed to be having enemy character. On the other hands the owners of the goods live in neutral State, the goods will not be deemed to be having enemy character. Different countries have modified and amended this rule in accordance with their convenience and needs of time and circumstances. But the general rule which is evident from the general practice of the States is that the enemy character of the goods is determined by the ownership of the goods.[30]
    
5. Transfer of enemy Ships:
   Clear rules in this connection were formulated in the declaration of Londonbut it is not ratified by the States. Enemy ships can be transferred to and under the flag of neutral States under the following two situation:
   
   1. Before outbreak of war:
      It is necessary that such transfer should not have been made with an objective to evade the capture of the ship.
   2. After the start of war:
      Transfer of ships after the start of war is generally considered illegal but it may be allowed it the owner of the ship established that it was not made with a view to evade the capture of the ship.
    
6. Transfer of goods in sea:
   Nearly the same rules apply in this case as apply in case of transfer of ships. If the sale of the goods takes place before war or without its consideration, State law is applied to determine whether the transfer of ownership had been effected. If the change in ownership is attempted during war or in view of war, the goods are deemed to be of enemy character and such goods are not considered to be the property of neutral State and may be confiscated.[31]

Conclusion
People all around the globe, since the very inception of mankind, have realized one thing that between countries there are bound to be disagreements that may lead to violence. Therefore, the focus should be shifted towards minimizing the suffering from these armed conflicts among the countries, keeping the non-combatant and non-competent out of the war.

Keeping that in mind all the international humanitarian laws have been formulated to this date. Nowadays the countries are resorting to peace instead of violence to resolve their disputes, which is a great sign of humankind everywhere because there is saying nothing good has ever come out of war, which is painfully true and this is what every country has understood. Therefore, the future is bright until we don't need to use these international humanitarian laws very often.

References:
Bibliography

• Dr. H. O. Agarwal, International Law and Human Rights, (Central Law Publications, Allahabad, 6th Edition, 2023).
• Dr. S. K. Kapoor, International Law and Human Rights, (Central Law Agency, Allahabad, 22nd Edition, 2021).
• K. C. Joshi, International Law and Human Rights, (Eastern Book Company, Lucknow, Fourth Edition, 2019, Reprinted, 2020).
• Dr. S. R. Myneni, Human Rights Law, (Asia Law House, Hyderabad, 3rd Edition, 2023).
• Gurdip Singh, International Law and Human Rights, (Eastern Book Company, Lucknow, 3rd Edition, 2022).
• Wg Cdr (Retd) Dr. U. C. Jha, International Humanitarian Law The Law of Wars, foreword by Christopher Harland, (VIJ Books India Pty Ltd, New Delhi, Edition, 2011).

Webliography:

• https://blog.ipleaders.in/law-war-overview/
• https://encyclopedia.pub/entry/28473
• https://www.idi.iil.org
• https://ccsuniversity.ac.in/bridge-library/pdf/BA-LLB-VI-SEM-INTERNATIONAL-LAW-BL-6004-Lecture-on-law-of-wars.pdf
• https://casebook.icrc.org/a_to_z/glossary/objective-war
• https://www.britannica.com/topic/war
• https://legal.un.org
• https://supreme.justitia.com>federal
• https://lawofwar.org>bas_v__tingy

End-Notes:

1. https://www.icrc.org/en/war-and-law/ihl-other-legal-regmies/ihl.
2. https://www.dictionary.com/browse/war#:~:text=a%20conflict%20carried%20on%20by,at%20war%20with%20each%20other.
3. https://www.britannica.com/topic/war
4. https://www.britannica.com/topic/war
5. 4 U.S. (4 Dall.) 37 (1800)
6. https://blog.ipleaders.in/law-war-overview/
7. Gurdip Singh, International Law and Human Rights, (Eastern Book Company, Lucknow, 3rd Edition, 2022).
8. Gurdip Singh, International Law and Human Rights, (Eastern Book Company, Lucknow, 3rd Edition, 2022).
9. Dr. S. K. Kapoor, International Law and Human Rights, (Central Law Agency, Allahabad, 22nd Edition, 2021).
10. Dr. S. K. Kapoor, International Law and Human Rights, (Central Law Agency, Allahabad, 22nd Edition, 2021).
11. https://blog.ipleaders.in/law-war-overview>difference-between-jus-in-bello-and-jus-ad-bellum
12. https://blog.ipleaders.in/law-war-overview/roots
13. Dr. S. K. Kapoor, International Law and Human Rights, (Central Law Agency, Allahabad, 22nd Edition, 2021).
14. https://www.britannica.com/topic/war
15. https://blog.ipleaders.in/law-war-overview/
16. https://blog.ipleaders.in/law-war-overview/#Conclusion
17. https://blog.ipleaders.in/law-war-overview/#Conclusion
18. 1983, Nagasaki and Hiroshima Case
19. Dr. S. K. Kapoor, International Law and Human Rights, (Central Law Agency, Allahabad, 22nd Edition, 2021).
20. Dr. S. K. Kapoor, International Law and Human Rights, (Central Law Agency, Allahabad, 22nd Edition, 2021).
21. https://www.britannica.com/topic/war
22. Dr. S. K. Kapoor, International Law and Human Rights, (Central Law Agency, Allahabad, 22nd Edition, 2021).
23. Dr. S. K. Kapoor, International Law and Human Rights, (Central Law Agency, Allahabad, 22nd Edition, 2021).
24. Dr. S. K. Kapoor, International Law and Human Rights, (Central Law Agency, Allahabad, 22nd Edition, 2021).
25. https://blog.ipleaders.in/law-war-overview/#Conclusion
26. Gurdip Singh, International Law and Human Rights, (Eastern Book Company, Lucknow, 3rd Edition, 2022).
27. Dr. S. K. Kapoor, International Law and Human Rights, (Central Law Agency, Allahabad, 22nd Edition, 2021).
28. [1916] 2 AC 307 UK
29. Dr. S. K. Kapoor, International Law and Human Rights, (Central Law Agency, Allahabad, 22nd Edition, 2021).
30. Dr. S. K. Kapoor, International Law and Human Rights, (Central Law Agency, Allahabad, 22nd Edition, 2021).
31. Dr. S. K. Kapoor, International Law and Human Rights, (Central Law Agency, Allahabad, 22nd Edition, 2021).