Forty years ago, on June 8, 1977, states adopted two important international treaties – referred to as Additional Protocol I and II (API) and (APII) – which were intended to supplement the four Geneva Conventions of 1949. The four Geneva Conventions and two Additional Protocols are together considered the most important treaties of international humanitarian law.
International humanitarian law is applied only when there are armed conflicts, which may be in the form of international armed conflicts taking place between two or more states, or non-international armed conflicts taking place on the territory of a state between its forces and non-state armed groups or between two or more non-state armed groups. There are separate sets of rules to deal with these two categories of armed conflicts. The four Geneva Conventions, which were adopted in 1949 after the worst experiences of the Second World War, are primarily meant for situations of international armed conflict, with the lone exception of Article 3 common to the four conventions, which is applicable to armed conflicts which are non-international in nature.
Expansion of international humanitarian law
Tragedies such as the Vietnam War, the anti-colonial movements, the changing nature of conflicts at the international level and an increase in the number of non-international armed conflicts led to the demand for the broadening of the ambit of international humanitarian law to cover these news kinds of conflicts and the sort of war-fighting they entailed. Until 1977, IHL was encompassed mainly in the form of the four Geneva Conventions. But with the adoption of the two Additional Protocols, its scope was expanded.
The major contribution of these protocols is that the API, inter alia, categorises armed movements involving the right to self-determination of colonised people as international armed conflicts, bringing, in some respects, guerrilla warfare and state responses to it within the protection ambit of international humanitarian law.
The APII, on the other hand, was specifically adopted to cover situations of non-international armed conflicts, thereby bringing a situation of armed conflict occurring on the territory of a country within the framework of international humanitarian law.
Despite the absence of permanent effective mechanisms for the enforcement of all international law obligations, states tend to be cautious in becoming parties to some international law treaties, particularly which deal with human rights or are of a humanitarian character. This maybe mainly owing either to non-compatibility of such international obligations with domestic political realities or because of the burden of international obligations such international treaties bring along. Apart from these constraints, hesitation to become a party to an international treaty may also sometimes emanate from some international geopolitical concerns and domestic political contingencies.
India continues to resist Additional Protocols
The four Geneva Conventions attained universal acceptance. However, some states refrained from becoming parties to the two Additional Protocols of 1977, including India. Currently API has 174 and APII has 168 signatories. The reasons could be mainly because these protocols have expanded the scope of international humanitarian law as provided in the four Geneva Conventions, which may have certain implications at the domestic level. Such a hesitation – mainly in the form of domestic political contingencies – is overtly evident in the case of India keeping off the two Additional Protocols even though they are considered, together with the Geneva Conventions themselves, to be the bedrock of international humanitarian law.
India was in principle not against expanding the scope of the Geneva Conventions when the diplomatic conference for the adoption of Additional Protocols was convened in 1974-1977. The Indian representative at the conference stated: “[t]wenty-five years had passed since the signature of the Geneva Conventions. Although the humanitarian principles were still valid, the world situation had undergone considerable changes….The national liberation movements were the first to respect the principles of humanitarian law because they were well aware of the misery and suffering caused by the armed conflicts of which they were the victims. It was therefore essential to supplement and develop the Geneva Conventions in order to adapt them to contemporary needs”.
Despite this, however, India continues to stay out of the ambit of the Additional Protocols.
In 2012, the Indian Society of International Law (ISIL) constituted a committee of experts, headed by the former chief justice of India, the late Justice J.S. Verma, with a view to understanding the reasons behind India’s refusal to become a party to the two Additional Protocols and to offer possible suggestions on the need to accede to them. The other members of the committee included Lt. General Satish Nambiar, E.M. Sudarsana Natchiappan (former member of Rajya Sabha and former union minister), late professor V.S. Mani (former director of the School of Law and Governance, Jaipur National University, Jaipur), professor Anuradha Chenoy (Jawaharlal Nehru University, New Delhi), Siddharth Varadarajan, C. Jayaraj (former secretary-general, ISIL) and R. K. Dixit (former legal adviser to the government of India).
The committee in its report, which was released on June 26, 2012, suggested that India should consider becoming a party to the two Additional Protocols while giving authority to a national institution like the National Human Rights Commission to determine whether or not the Additional Protocols apply to a particular situation. The committee report also pointed out, inter alia, that having become a party to several human rights treaties, India remains bound by important principles of the Additional Protocols and Indian domestic law and domestic judicial attitudes already reflect these developments in the field of international human rights law and humanitarian law.
Reasons for India’s apprehensions
The reasons for India’s non-accession to these treaties have not been spelt out clearly by the government. However, going by the proceedings of the 1974-1977 diplomatic conference, a few important objections can be identified.
One major concern could be the API’s categorisation of self-determination movements as international armed conflicts. This concern should be contextualised in the larger political situation and the significance of those movements, as not every such assertion meets the legal requirements of the definition provided in the protocol itself, which is tightly linked to the UN Charter and the landmark 1970 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States. The latter document arguably would appear to exclude many movements that use the rhetoric of self-determination.
Another concern could be that India was not in favour of accepting the category of non-international armed conflict itself. This position no longer remains valid as India has become a party to other international treaties which govern non-international armed conflict situations. An example of this is the Convention on Certain Conventional Weapons of 1980.
The other apprehension could be that if India accedes to these treaties, it would be under obligation to extend their protections to those who are involved in violent armed conflict with the Indian state and that would in turn give these insurgents political legitimacy. The purpose of the two Additional Protocols is to extend protection to the victims of armed conflict, therefore, their application to the situations of armed conflict becomes necessary, provided they meet the legal requirements. However, the application of these treaties in no way grants non-state armed groups any political status or recognition as the emphasis of these treaties is on conduct in the conflict and not on the political legitimacy of the parties involved. Indeed, application of these treaties would also impose the moral obligation of compliance on non-state armed groups, whether the Maoists in central India or the insurgents in Jammu and Kashmir and the north-east of India. However, it needs to be underlined that the state’s compliance with international legal obligations does not depend on reciprocity vis-à-vis non-state actors.
Note: Siddharth Varadarajan, who was one of the members of the Expert Committee set up by the Indian Society for International Law in 2012 to examine the Additional Protocols, is a Founding Editor of The Wire.
Srinivas Burra is an assistant professor at the Faculty of Legal Studies, South Asian University, New Delhi.