The societal and cultural aspects of modern treaty-based regulations must be well-adjusted. For the ideal execution of laws, the needs of the ultimate stakeholders, namely Indigenous communities, must be considered. To improve compliance and legitimacy, the state-centric approach to conventions should be transformed into a community-centric approach. This would shift the focus of implementation even further and eliminate the ingrained constraints that exist due to the lack of mandate from Indigenous cultures. In this regard, the article has drawn on ancient legal regulations of early Vedic society that were effective to improve the implementation of contemporary war regulations. Since the ancient Indian wars were be classified as “flower wars” by earlier travellers and scholars, the author believes that it is imperative to revisit the earlier societal armed regulations to analyse that whether there exist any humane regulations or whether all depends on the ruler’s last choice. For this purpose, the study explores the contribution that could be made by the earlier Vedic laws to modern humanitarian regime.
Intangible Assets, Armed Conflict and its application in Hinduism
Before delving into the cultural heritage protection regime in ancient Vedic India, it is important to note that they had a legal order among themselves along the lines of International law that we have today. According to Buddhist texts and accounts of foreign travellers, there were at least sixteen sovereign states known as Mahajan padas, with many more in southern India. These states had mutual respect for the rule of law in governing inter-state relations. War, as historians have pointed out, was a common occurrence in ancient India. As a result, it implies that some kind of war regulations, similar to IHL, must exist. Ancient Indian humanitarian law was fundamentally based on the concept of Dharma which regulated the conduct of individuals in war. The only difference between the modern-day IHL and ancient Dharma is that the former is based on the mutual consent of the states while the latter is based on superior ethics or natural law i.e. law based on morality and ethics. The presence of such regulations was confirmed by the Tamil texts of Kural and Purananuru.
It was obvious that with such a wealth of information (whether tangible or intangible) and tradition, adequate safeguards were required. To that end, the principles of Ancient Hindu law were similar to those of Modern Humanitarian Law. It distinguished between international armed conflict and Non-International Armed Conflict. This same distinction has also been made under Common Articles 2 and 3 of the Geneva Conventions of 1949. The difference between both forms lies in the factor as International armed conflict involves a sovereign state whereas Non-International Armed conflict consists of state and insurgent groups. In earlier Vedic traditions, an International armed conflict was known as Yuddha, while the latter was known as Kalaha. The Puranas and the works of foreign travellers shed light on the fact that these laws adhere to the principle of distinction, as war must be limited to the combatants themselves. Though the Indian scriptures do not define ‘cultural heritage,’ it requires that no towns or cities be attacked while the aggressor’s forces are marching through them. The texts such as Agni Purana prohibited the destruction of temples and other places of worship considering they have splendid works of art with impressive scriptures. The protection conferred to these centres was analogous to that of the principle of distinction and the Martens Clause preserved in Article 48 of Additional Protocol 1 as they ensure that non-combatants shall not be affected by the armed attacks in any manner whatsoever. Recent Russian armed forces violations in Ukraine, particularly in Kharkiv, includes unlawful confinement, torture, and rape. These acts are directly contrary to the principles of humanity and public conscience, and thus constitute a violation of the Martens clause under Modern Humanitarian law. Similar interpretations can be found in the Gautama Dharma shastra and the Ramayana, which emphasise that murdering a helpless person is a sin similar to murdering an unborn child. These scriptures ensure that nothing exceeds the scope of Dharma, or the Law of Humanity.
The principle of humanity can be seen in the Chandogya Upanishad, which forbids the destruction of private and cultural property, as well as the unnecessary killing of cattle and other living creatures. Megasthenes, the Greek ambassador to the Mauryan empire, emphasised that the Mauryan kings engaged in limited or just warfare. Even during armed conflicts, peasants continued to cultivate their land without interruption. Non-combatants were referred to as ayudhyamana, and they were shielded from any aggression. This classification of ‘ayudhyamana’ is much similar to the notion of protected persons under Article 13 common to Geneva convention I and II of 1949. Along with the protection of cultural and private property, research and educational institutions were also granted adequate protection similar to the 1954 Hague Convention. Educational institutions were protected from military aggression because of their valuable intangible assets that could be destroyed. As combatants were trained in Asramas under the supervision of sages or rishis, these war regulations were part of intangible cultural heritage. The warriors were made to learn the art of archery known as Shiva Dhanurvidya, which was written around 600 B.C.E. The Manu recommends that Brahmin scholars be given the best possible care to continue their Vedic studies. According to him, the monarch must provide incentives to scholars per shastras and must never attack them in battle. He shall instead protect them in the same way that a father would protect his son. The parallel can be made to Article 52 (3) of Additional Protocol 1 which classifies the educational institutes as ‘civilian objects’ that cannot be targeted. The early rules were also in line with the safe school declaration of 2015, Oslo that emphasises the continuation of education in schools and universities even in armed conflict. According to the UN Secretary General findings on children and armed conflict, 1500 schools were targeted in 2014. Similarly, Russell Tribunal in the Vietnam war highlighted US Imperialist aggression on schools and bombing of Quynh Lap leprosarium without liability. If earlier cultural traditions had moral sanctions, the situation might be different. In this regard Nick Allen pointed out the few groupings of individuals who were immune from the combatants status in early Vedic wars. It was stated that the brahmans, children, women and those who sought the ultimate knowledge and deliverance in ashramas shall be excluded from armed conflict.
According to Seleucus’ accounts, even though the soldiers tended to slaughter each other, it was strictly forbidden to burn down the enemy’s property or other assets. Indiscriminate attacks were also prohibited, and no one was permitted to burn down the entire fort or city because it was considered invasive to God. The principle can be illustrated by a Mahabharata example in which Lord Krishna forbade Arjuna from using the ultra-destructive weapon known as Pashupatastra when the war was purely conventional because it would destroy and slay people without regard for property. Nonetheless, there was no explicit mention of ‘Intangible Cultural Property,’ but because these laws applied to cultural assets, they indirectly made them applicable on Intangible Cultural Heritage due to their all-encompassing nature. The Interrelationship between tangible and intangible assets was acknowledged at the 7th Asia Pacific Regional Assembly of the International Council of Museums (ICOM) in Shanghai, where the cross-sectional approach was recommended and common law and principles were suggested to bring tangible and intangible cultural heritage together to establish a holistic approach. Kautilya, the ancient Vedic scholar, recognised this holistic approach much earlier when he stated that the victorious king must adopt the culture, dress, language, and customs of the conquered people. He should demonstrate the same devotion to the gods of that region by taking part in their religious ceremonies. In Arthashastra, it was forbidden to attack Paranmukha ( who turned their backs to war) and Muktsastra ( who abandoned weapons). These assertions in some manner anticipated the proportionality principle enshrined in AP I Article 51(b). Modern autonomous weapons, which aim without human intervention, threaten the premise. On the contrary, early Vedic scriptures prohibited the weapons with blazing fire and poisoned arrows to prevent disproportionate death tolls.
As above mentioned, armed conflict harms everything, including intangible cultural assets. Early crusades, Schmalkaldic war, and Thirty Years War aimed to eradicate the other faiths. Dharma is the application of law and order within the larger cosmic order to maintain peace and security. It’s a secular, universal concept that has little to do with Hindu gods and goddesses. Just war in Hinduism does not refer to a war against foreign nations or people of other faiths, but rather a war against evil characters of the day. This concept of righteousness or dharma recognised intangible cultural property before anyone else. The ancient Vedic society is the best example of how to preserve intangible cultural heritage by collecting, documenting, and protecting its carriers.
The goal of international law is to mitigate the effects of war by imbuing it with more humane characteristics. As above illustrated, ancient war regulations already comprised the essential elements of present-day IHL such as the principle of Humanity, proportionality and Distinction. Another element that can be conferred in this direction by ancient Vedic laws is moral sanctions. This new element would strictly prohibit indiscriminate weapons that could cause irreparable harm to any society’s values and cultural heritage. Indiscriminate weapons, such as autonomous controlled weapons and nuclear weapons, would not be permitted to harm any society’s age-old traditions. The stronger nation with greater hard power would not be allowed to plunder the resources of the comparatively weaker nation for its treasury.
The point is that even after putting aside the question of the legality of the right to go to war, jus ad bellum, the conduct of the war was highly contentious and not entirely in accordance with jus in bello. This has revealed the limitations of modern laws of war based on the Geneva Conventions because, unlike Hindu laws of war, this law does not require that wars be fought between equals or that weapon less states shall not be attacked by those with superior firepower.
Shivesh Saini is currently pursuing his law from USLLS ( University School of Law and Legal Studies, GGSIPU ) and is in his 3rd year of BA.LLB.
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