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ABSTRACT
This article places international humanitarian law (IHL) side by side with Buddhist narratives as seen through the Jātakas, to investigate how they view the expectation placed on soldiers to risk their lives in battle. To this end, I delve into the notion of reciprocity of risk in battle from an IHL perspective, which I argue is crucial to infusing warfare with restraint. Similarly, Buddhism acknowledges the importance of reciprocity as an ethical principle that leads to non-violence. I demonstrate how IHL tries to ensure that the risk combatants undertake in combat is limited through its rule of surrender. I compare this argument with the Seyyaṃsa or Seyya Jātaka (no. 282), which illustrates the need to cease violence in cases of surrender. The way militaries treat their own combatants is crucial to the meaningful practice of surrender and thereby the limits and restraints of warfare. Buddhism too encourages rulers to value the lives of their soldiers and not to put their lives at unnecessary risk. I conclude that to maximise the combatant’s choice to limit the risk he takes in battle, IHL should pay more attention to the orders that militaries and armed groups issue to their combatants. Buddhism, for its part, can facilitate the constructive use of military orders because it projects positive images of rulers who are reluctant to order their soldiers to take unnecessary risks in war.
Acknowledgements
For their helpful input on earlier drafts, I thank Professor René Provost, Dr Noel Trew, Dr Elizabeth Harris, Professor Kate Crosby and Andrew Bartles-Smith.
Disclosure statement
This article has been supported by the International Committee of the Red Cross (ICRC).
Notes
1. McMahan (Citation2009, 36) acknowledges the argument that ‘war is fundamentally different morally, from other forms of conflict and all other types of activity’.
2. The first of the Five Precepts of Buddhism is to abstain from killing and there are no exceptions to this principle for times of war. However, this idea is debated by Buddhist and international humanitarian law scholars. More elaborate discussions on this debate can be found in other articles of this volume.
3. In referring to this work in the remainder of this article, proper names have been changed to the Pali version.
4. This shift away from the principle of reciprocity in IHL can be seen in rules regulating reprisals in attack. ‘Customary IHL – Rule 145. Reprisals’. https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule145.
5. International Committee of the Red Cross (ICRC), Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (First Geneva Convention), 12 August 1949, 75 UNTS 31 at Art 1; International Committee of the Red Cross (ICRC), Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Second Geneva Convention), 12 August 1949, 75 UNTS 85 at Art 1; International Committee of the Red Cross (ICRC), Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Second Geneva Convention), 12 August 1949, 75 UNTS 85 at Art 1; International Committee of the Red Cross (ICRC), Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 12 August 1949, 75 UNTS 287 at Art. 1.
6. Combatant privilege does not expressly apply in the context of non-international armed conflicts. Scholars debate the impact of this asymmetry in the recognition of combatants on the reciprocal foundations of IHL.
7. Surrender is only permitted if exercised in situations where successful defence is not possible. Such laws indicate to commanders that a decision to surrender can only be exercised as a last resort and cannot be made lightly, even when one’s forces are at great risk: National Defence Act, 1985 of Canada last amended in 2019, at 73; Defence Act No. 18 of 1954 of Ireland, at 124(b); The Gambia Armed Forces Act, 1985 of Gambia, at 37(c); Military Penal Code, No. 13 of 1940 of Iraq, at 55; Armed Forces Act, 1968 of Kenya, at 15(d).
8. Defence Act of Ireland, note 9 at 125 (b) and (c). Also see The Army Act, 1950 of India at 34(f).
9. During non-international armed conflicts, detainees are not entitled to prisoner of war status, but according to Common Article 3 to the 1949 Geneva Conventions, they must be treated humanely.
10. Armed Forces Act, 1970 of Malta at 41(1); Armed Forces Act of Malaysia, note 16 at 43(1); Armed Forces Act, 1972 of Singapore; Defence Force Act of Botswana, note 22 at 31(1); Armed Forces Act, 1968 of Kenya at 21(1).
11. A universal monarch is considered an ideal universal king, who reigns ethically and compassionately over the entire world.
12. See also the ‘story of the present’ from the Kuṇāla Jātaka (no. 536, Jat V.412–414), where the Buddha confronted the Sākiyans and Koliyas who were about to attack each other over rights to the water of a shared river at a time of drought. He did so by asking them whether they should sacrifice something of great value – the lives of the warrior-nobles – for something of lesser value – water.
13. ICC, Ntaganda Decision on the Confirmation of Charges, 2014: 76–82, https://www.icc-cpi.int/CourtRecords/CR2014_04750.PDF
14. US v. von Leeb, 11 Nuremberg Military Tribunals 511 (1948) (the High Command Trial): ‘within certain limitations, [a soldier] has the right to assume that the orders of his superiors … are in conformity to international law’.
Additional information
Notes on contributors
Vishakha Wijenayake
Vishakha Wijenayake is a doctoral candidate at McGill University, Faculty of Law, specialising in international humanitarian law. At McGill, she is also an O’Brien Fellow attached to the Center for Human Rights and Pluralism and a recipient of a grant by Fonds de recherche du Québec. She holds a master’s degree in law from the University of Michigan Ann Arbor, where she was a Fulbright Scholar and a Hugo Grotius Fellow. She holds a bachelor’s degree in law from the Faculty of Law, University of Colombo. Previously, she worked as a consultant and legal advisor at the International Committee of the Red Cross and as a lecturer at the Department of Law, University of Jaffna. Her publications include peer-reviewed articles in journals such as the International Review of the Red Cross. She has also contributed to research for the ICRC updated commentaries to the Four Geneva Conventions and the Customary IHL study of the ICRC. Her research interests include international humanitarian law, international human rights law, gender studies and legal pluralism.
This article comprises work that forms part of the author’s DCL thesis at McGill University’s Faculty of Law.