Like many other branches of international law, International Humanitarian Law (IHL) grew exponentially after World War II, with a view toward expanding the scope of the protection of the victims of armed conflict, which ultimately resulted in the adoption of the four Geneva Conventions of 1949.
Although the four Geneva Conventions were comprehensive and universally accepted by all states, they did not address the emerging problems and changing character of armed conflicts. Immediately following the Geneva Conventions, the 1950s and 1960s were an era of decolonization in Asia and Africa, and were the decades in which several additional international human rights instruments were adopted, such as the 1951 Refugee Convention, the 1966 Human Rights Covenants, and regional human rights treaties. Along with these developments, the need to revise the law governing the means and methods of warfare was also felt, as it had not been revised since the Hague Regulations of 1907. To remedy these shortcomings, two Additional Protocols to the Geneva Conventions were adopted in 1977 to make international humanitarian law more effective, comprehensive, and universal, so as to adapt to modern problems and conflicts.
Additional Protocol I (AP I) deals with international armed conflicts (IAC) whereas Additional Protocol II (AP II) deals with non-international armed conflicts (NIAC). Although powerful countries like the United States and India vehemently participated in the negotiation of these two protocols, they have not ratified them. Four decades later, this writing explores whether the reasons then advanced by India for non-ratification still hold up.
India's Position during Negotiation of Additional Protocol I: A Critical Evaluation.
Additional Protocol I, which deals with IAC, brought four major developments in IHL as compared to four Geneva Conventions of 1949: (1) the expansion of definition of International Armed Conflicts; (2) Means and methods of Warfare; (3) Modification of conditions for combatant status; and (4) establishment of International fact finding commission.
The first crucial development brought by AP I was the significant change to the definition of IAC. Prior to this, IAC was basically understood as to be taking place between two or more states having recourse to armed forces. Article 1 (4) of AP I says:
The situations referred to in the preceding paragraph include armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.
In the sixth meeting of the First Session, Mr. Haskar, Indian representative, said [PDF] that many delegations, including his own, were agreed on the principle that the struggle of national liberation movements should clearly come within the framework of international armed conflicts and consequently within the scope of AP I. Accordingly, India not only supported the participation of national liberation movements in the negotiation of AP I but expressed its consent to Article 1(4). Therefore Article 1(4) of AP I cannot be considered as hurdle for India to become party to it as there is still no major change in the material circumstances.
The second significant development brought by AP I was relating to Means and Methods of warfare. Article 35 of AP I (draft article 33) deals with the basic rules of part III on method and means of warfare, and Article 36 (draft article 34) deals with "new weapons" as adopted by consensus. AP I Article 48 (Draft article 43), which deals with basic rules for the protection of civilian population, was also adopted by consensus. The consensual adoption of these significant provisions dealing with the means and methods of warfare is testimony to India's consent on the inclusion of these provisions in AP I.
There are a plethora of weapons treaties to which India is a party and therefore it can be argued that India's position during the negotiations, and its later practice, would become inconsistent if it considers the provisions dealing with the means and methods of warfare as a hurdle in ratifying APs.
The third important change brought by AP I is the modification of combatant status as provided in Article 44(3), applicable only in situations of occupation or situations falling under Article 1(4). India, along with other third world countries, supported the participation of national liberation movements within the definition of armed conflicts under Article 1(4). Therefore, it can be argued that modification of combatant status under Article 44 (3), which primarily suits the situation defined in Article 1(4), cannot be a ground for India's refusal to ratify AP I.
The fourth novel contribution of AP I is the establishment of an International Fact -Finding Commission to inquire into any facts alleged to be a grave breach as defined in the Conventions and AP I. India objected to this idea and supported relying on existing institutional mechanisms to resolve disputes. India believed that the proposed commission might be used for political propaganda, which may result into non-co-operation between the parties. But if we carefully peruse Article 90(2)(a), it explicitly says that a state does not automatically recognize commission's competence by signing or ratifying the Protocol I, but has to separately consent to the formation of the Commission. Therefore even if India had problems with the establishment of a fact-finding commission, it may still become party to the protocol since the obligation under Article 90 is optional and non-binding.
India's Position during Negotiation of Additional Protocol II: A Critical Evaluation.
From the inception of the diplomatic conferences leading up to AP I and AP II, India persistently objected to the Draft Protocol II, which covered NIAC. In the 39th Plenary Meeting, the Indian delegation raised strong objections to the very idea of AP II on the grounds that once the national liberation movements had been included in AP I and given the status of international conflicts, AP II would be redundant and unnecessary. Indian representatives argued that the situation was entirely different with NIAC because these were essentially law and order problems within the exclusive domestic jurisdiction of each state. The Indian delegation was of the view that Article 3 of AP II was designed to address the situations of struggle for national independence and sovereignty, despite their incorporation in Article 1(4) of AP I. Therefore, the Indian delegation believed that the draft AP II, which was supposed to be based on common article 3 was pointless. When draft Article 1 of AP II dealing with the material field of application was put to voting during the plenary meeting, India voted against it. Nevertheless, India participated during the negotiation on various provisions of AP II.
India's position that with the exception of national liberation movements, any other conflicts taking place wholly within the territory of a state should be resolved through domestic legal frameworks can be challenged on at least two grounds. First, it is factually incorrect and conceptually narrow to limit the existence of NIAC only to national liberation movements. NIAC may take place for various reasons other than anti-colonial struggles, such as ethnic conflict or civil wars, ideology based movements (like Maoist movements in south Asia), and movement based on issues related to natural resources. Second, the primary criteria that governs the application of IHL is gravity of conflict on the territory of a state and its humanitarian consequences. The national liberation movements were included in the category of IAC out of concern for the conflict's gravity and humanitarian considerations. Accordingly, the same analogy can be applied to NIAC without going into their reasons and consequences. Therefore India's refusal to accept the existence of NIAC goes against the factual and conceptual reality of the existence of different forms of NIAC and also against the fundamental criteria on which IHL is premised.
In the light of above discussion, it is time for India to ratify the Additional Protocols of 1977 so as to ensure greater respect and protection to the rights of its own citizens.
Md Tabish Eqbal is pursuing a masters in International Law from the Faculty of Legal Studies, South Asian University (SAU), New Delhi. The author would like to thank Dr. Sriniwas Burra, the Faculty at SAU, and Haris Jamil, Ph.D. Scholar at SAU, for their valuable guidance and persistent encouragement to write on this issue.
Suggested citation:Md Tabish Eqbal, Revisiting India's Non-Ratification of the Additional Protocols to the Geneva Conventions: Does it Hold Up Today?, JURIST — Student Commentary, Aug. 20, 2017, http://jurist.org/student/2017/08/md-tabish-eqbal-india-nonratification.php.
This article was prepared for publication by Sean Merritt, an Assistant Editor for JURIST Commentary. Please direct any questions to him at firstname.lastname@example.org