INTERNATIONAL HUMANITARIAN LAW AND THE CONCEPT OF HINDUISM

INTERNATIONAL HUMANITARIAN LAW AND THE CONCEPT OF HINDUISM

Introduction
There is no good in war, dear son, nor any holding together in the foundations of life. When can there be in war any happiness? Nor is there any certainty of victory in every war. Therefore, do not put in it your thoughts and expectations. (129.40)1 The history of Hinduism is largely a history of ancient Indian culture and progress. Hindu tradition has always had a place for individual sages whose teaching and example have stood for the highest moral and spiritual values. Some of these teachers have even been revered by very large numbers of followers as special manifestations of divinity and therefore worthy of universal acclaim for their authority. Even when the authority of such teachers has crossed sectarian lines, however, it has not developed into anything like an institutional ground zero. Most Hindus would probably agree that Dharma is the universally applicable principle of order from which one must deduce all positive legal and ethical norms. Acknowledging the diversity of the human insight and capability, Hindu tradition observes that people pursue a variety of aims in life, each with its value and purpose in the larger scheme of things. Earlier texts spoke of three goals: the pursuit of love and pleasure (kama), material gain and power (artha), and righteousness or virtue (Dharma).when the Upanishads injected a strong note of introspection and began to question whether these worldly goals were sufficient, the notion of arose of two ways of seeking Dharma through action and through withdrawal to a life of contemplation. Thereafter, the fourth goal, of liberation from Samsara (moksha), joined the list. Earlier texts seem to suggest these four are mutually exclusive, but some more recent Hindu authors have taught that what is important is to keep all ones goals in perspective by resolving to move eventually to the final goal. Traditional Hindu philosophical psychology analyses the individual person as made up of the three gunas, qualities or characteristics that blend in varying the proportions in each of the ones actions. The moral goal of human life is to cause the ore positive quality to predominate. Darkness (tamas), a bodily feature resulting from ignorance, tends to pull one toward laziness, indecisiveness and sensuality. Goodness (sattva) is its opposite, bright and intelligent, and associated with the divine. Passion (rajas) is a form of energy from which the
1

Chaturvedi Badrinath, The Mahabharata: An inquiry in the human condition , Orient Longman Pvt. Ltd., New Delhi, 2006, pg 152

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INTERNATIONAL HUMANITARIAN LAW AND THE CONCEPT OF HINDUISM

other two gunas receive their animation. Unchecked, heroic passion can lead to narcissism and blind ambition. The development task for the individual as moral agent is to refine his or her choices so that goodness predominates.

Sources of Hinduism
Civilisation of a society increases with culture and breaks down as cultural values deteriorate, as we have seen in the fall of the Egyptian, Greek and Roman civilisations. Ved Vyasa arrested the deterioration in Indian culture by compiling the Vedas. The Buddha, in his time, revived it. Once again, in Sankaracharyas time, the culture of the country India had deteriorating. When culture deteriorates, there is an increase in barbarism and immorality, philosophy is misinterpreted and utter disaster follows. Sankaracharya appeared at such a stage and brought about the great renaissance in Hinduism. Thus, many such mighty Masters have contributed towards the maintenance of the great culture of the religion. If we make a probe into the history of ancient India we find that no distinction between believers and non-believers was recognised in regard to interstate conduct in ancient India and even when the former were involved in a death struggle of war in a letter or whether the war was fought within or without Aryavarta or whether it was a just and righteous war (Dharmayuddha) or an unjust war (Dharmayuddha), it was expressly joined by the sacred laws of Dharmashastra that all belligerents at all times and in all circumstances must adhere to the accepted rules of warfare.2 Hinduism does not centre on any particular personality or book. In ancient India, men of wisdom spent their days in the lap of natures beauty and luxuriant. The valleys and forests of the great Himalayas and sacred Ganges were the teachers were kindles in their hearts a hunger to know the mysteries of the Power that gives life to the lifeless. The reflections and revelations of these perfect Masters formulated the scriptures which later came to be known as the Vedas. The Vedas are four in number, namely, Rig-Veda, Yajurveda, Samaveda, and Atharvaveda. Each Veda is divided into three sections, and these are called Mantra, Brahmana and Upanishad (Aranyaka). In the mantra portion we find the ecstatic admiration of natures beauty expressed in lyrical poetry by these contemplative seers. The Brahmana portion deals

INTERNATIONAL LAW AND PRACTICE IN ANCIENT INDIA X (H.S. Bhatia ed., Deep & Deep Publication 1977).

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INTERNATIONAL HUMANITARIAN LAW AND THE CONCEPT OF HINDUISM

with rituals and sacrifices; they are meant for mental integration and self purification. The last portion contains the philosophical portion known as Vedanta. Besides, the Vedas (Shrutiss), the scriptural literature of this country includes the Smritis, Itihasas and Puranas which contain philosophy, ethics, social sciences and laws of society and so on. The Vedas were not written by any one individual they are inspired declarations from several Rishis from the height of their intuitive experience.

International law and Hinduism

It is often claimed that the system of modern international law is a product of European civilisation. This claim is not fully valid, for the roots of the international law are to be traced for far back in Indias past. Ever since the Aryans began to organise their common life in political units, they had felt the need of some system of rules to regulate their inter community relations. International law is not a monopoly of Europe. From time immemorial there had been political units in India. In the modern phrase, such units would be international persons, subjects of the law of nations. In the period of RigVeda, the Aryans were split up into various tribes but were conscious of their unity in race, language and religion. The mandala or the circle of states has been described by Manu and Kautilya, Sukracharya and Kamandaka. According to Kautilya, the attributes of sovereignty are the king, the minister of the country, the fort, the treasury, the army and friend. From Kamandaka, we learn that only four of the states were sovereign. These four, namely, the Vijigishu, the Ari, the Madhyama and Udasina have been said to be the principle components. This is the mandala of four sovereigns described by Maya conversing with political science. In modern times there has been much controversy on the subject of sanction or enforcement of international law. International law cannot be regarded as law in the limited Austinian sense as the command of sovereign with a superior coercive power3. There have been similar such speculation about the source of obligation to obey international law. The same problem arises in any system of law and cannot be solved by merely judicial explanation. The answer
3

Jean Pictet, Development And Principles Of International Humanitarian Law, Maritime Nifhoff Publishers, Geneva, 1985, pg 14

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INTERNATIONAL HUMANITARIAN LAW AND THE CONCEPT OF HINDUISM

must be sought outside the law. In India, the writers enunciated the validity of law on extralegal sanctions. Rules of conduct embodied in the Dharma had to be implicitly obeyed. There was common subjection to the unifying force of Dharma due to the fear that violation of rules would entail wrath of god. In the Rajdharma prakaran of the shantiparva of the Mahabharata, the following definition of Dharma is given: No one is discoursing on righteousness can indicate inaccurately. Dharma was declared for advancement of growth in all creatures. Therefore that which leads to advancement and growth is Dharma. Dharma was declared for restraining creatures from injuring on another therefore, that is Dharma which prevents injury to creatures. Therefore that is Dharma, which is capable of upholding all creatures. The primary sources of international law, according to modern jurists are (1) custom based on tacit consent and imitation (2) conventions or expressed agreements by means of treaties of international character. The ancient Hindus understood the first source by DesadhiDharma or Dharma in general, for example, shukracharya defines Desadharma as customs which may or may not owe its origin to the Shrutis but is always followed by the people in different climes. Various meanings have been attached to the expression Dharma. Dhammapada was so bewildered by their vastness and complexity that he exclaimed, for those who are envelop there is gloom, for those that do not see there is darkness and for the good it is manifest, for those who see there is light; even being near those that are ignorant of the way and the Dharma do not discern anything. One thing at any rate is certain: that from the time of the Rigveda onwards, Dharma meant both law and custom.

War and Hinduism

The Manu Samhita also repeats the same sentiments. A king should first try to conquer his foes by conciliation, by gift and by causing dissension if possible: if all these fail then and then only should he wage war. The Arthashastras were great advocates of the policy of state interest and yet they looked upon the establishment and continuation of peace as the only means of achieving national peace and national prosperity. Even when the advantages of peace and war are equal one should prefer peace, for war cause loss of wealth and power and is troublesome and sinful. A solvent treasury and sage advice, declared Kamandaka, were much better expedients than mere display of power; he therefore recommended lavish use of gifts.

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Kautilya defined war as an offensive operation. War was defined by Sukracharya as the affair of two parties having inimical relations with each other, undertaken by means of arms, with the ulterior objective of satisfying their rival interests. The Agni Purana defines war as the direct result of the injuries done to each other by two hostile monarchs. If we combine the essential ingredients then it will be seen that the authors of Arthashastra did not in any way regard warfare as a necessary consequence of existence and that there was probably the nearest approach to the theory of modern International Law that war is an affair between states. It will also be seen later that the distinction between combatants and non-combatants- a distinction scarcely recognized by international custom of antiquity- was fully recognized and acted upon in ancient India. The ethical superiority of international custom4 is broad based on six great moral principles which are:1. The ancient Indians regarded war as a necessary evil to be taken recourse of a last expedient. 2. certain well defined guided on wars- rules which are sanctioned religion and common humanity carried on by man ennobled by a sense of chivalry upon the amelioration of warfare even in the middle ages in Europe has generally been acknowledged. 3. International usage in ancient India made a distinction between combatants and noncombatants and recognized the modern principles of various grades in enemy character. 4. The ancient Indians recognized war as a relation between states, e.g., the Agnipurana defines war as the direct result of injuries done to each other by two hostile monarchs, and theory of identity of the interests of the state with those of the individuals held good only in the case of a virtuous prince. The same truth has been forcefully illustrated by Kautilya when he speaks about the various grounds of the defection of an entire people. When people are impoverished, they become greedy: when they are greedy, they become disaffected: when disaffected, they voluntarily go to the side of the enemy or destroy their own master. 5. Dharma did not recognize in ancient India, the institution of slavery. It has been repeatedly laid down both in the Dharmashastras as well as in the Arthashastras that an Arya could never be reduced to slavery.
4

Supra Note 2, 94

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6. In India, the nations struggled on for territorial aggrandisement, but the gods did not perhaps, except in the Vedic age, fight for the appropriation of various localities. In the epics and the Puranas we have instances of gods fighting among themselves and very rarely with men. Such as Arjuna fighting with Siva; but victory or the defeat of the champion gods of the states. Thus religious rancour and religious fanaticism did not embitter secular warfare in ancient India for a long time. These briefly are the causes which both humanized and ennobled warfare in ancient India.

Laws of War in Ancient India

War was inevitable in primitive communities as there was neither a social organisation nor a pronounced political status. In the earlier stages of civilisation, war was regarded as a normal feature of life but with the growth of civilisation, war came to be looked upon as a serious business, which should not be entered into recklessly and ruthlessly but should be governed by ethical and moral codes. Political society was just then emerging from the tribal community. But in the post Vedic epoch, and especially before the epics were reduced to writing, lawless war had been supplanted, and a code had begun to govern the waging of wars. The ancient lawgivers, the reputed authors of Dharmashastras and Dharmasutras, codified the then existing customs and usages for the betterment of mankind. Thus the law books and epics contain special sections on royal duties of common warriors. The seers and the legists thought that the high road to peace lay in the consummation of a social order guided by a code of humane laws, moral and ethical in character.5 Now, turning to the laws of governing righteous warfare in ancient India. When a conqueror felt that he was in a position to invade the foreigners country, he sent an ambassador with the message: fight or submit. More than 5000 years ago India recognised that the person of the ambassador was unavoidable. This was a great service that ancient Hinduism rendered to the cause of international law.

Humanitarianism in Hinduism
Hindus have learned of their personal Dharma most of all through family and closer social relations as well as through a vast tradition of popular lore. Ones Dharma is intimately tied to the norms of ones Jati and Varna as well as, formerly at least, ones station in life. An
5

V. R.Ramachandra Dikhshitar, War in Ancient India, Macmillan and Co. Limited, Madras, 1944, pg 116

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enormously popular epic called the Ramayana, attributed in its early form to Valmiki in the third century BC and evolved by various bards over the next several centuries, provides both a picture of a classic role model facing serious challenges and an example of a type of Hindu ethic that takes the short view in the interest of keeping it all within reach of large numbers of people. There is a significant historical strand in Hindu ethics that suggested that the only truly ethical behaviour is that which moves beyond considerations of good and evil, pure and impure. In Rajagopalacharis Mahabharata, he has enlisted the rules of the war at Kurukshetra. He has enlisted as follows: - each day the battle was over at sunset, and the hostilities mixed freely like friends. Single combats might only be between equals and one could not use methods not in accordance with Dharma. Thus, those who left the field or retired would not be attacked. A wise, charioteer, elephant troops and infantry men could engage themselves in battle only with their opposite numbers in the enemy ranks, those who sought quarter or surrender was safe from slaughter. Nor might won, for the moment this engaged, direct his weapons against another who was engaged in combat. It was wrong to slave one who had been disarmed or whose intention was directed elsewhere or who was retreating or who had lost his armour. And no shafts were to be directed against non-combatant attendants or those engaged in blowing conches or beating drums. These were the rules which the Kauravas and Pandavas solemnly declared they would follow.

Conclusion
The sources of Hinduism, which are the sources of ancient India, clearly support the statement that the Indian civilisation was the first to discover the means and the laws of war. The Indian civilisation had recognised the importance of the international law and the principles of international humanitarian law. The ancient sources of the religion Hinduism have proven time and again that the Hindu minds had always foreseen the need of international law and international humanitarian law. The concept of everything is fair in love and war remains only of literary importance and has been discarded by the advent of international humanitarian law.

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