Charles G. Fenwick defined International law as a body of general principles and specific rules binding on the members of the international community in their mutual relations. It has several branches, one of which is International Humanitarian Law (IHL), also known as the law of armed conflict or war. The lasting repercussions of World War II augmented the need and growth of IHL. This branch of international law was created to create a set of rules for humanitarian reasons that seek to curb the effects of armed conflict. It aims to protect individuals who are not or who no longer participate in the hostilities and limits the means and methods of warfare. The development of IHL led to its adoption in the four Geneva Conventions of 1949
Immediately after adopting the Geneva Convention in 1949, there was a surge of revolts such as the anti-colonial movements in Asia and Africa, the Vietnam War, the varying nature of armed conflict and an increase in the non-international armed conflicts. Although universally accepted and extensively elaborate, the four Geneva Conventions failed to recognise the pressing demand for broadening the scope of IHL. Moreover, there was a need to revise the laws governing the means and methods of warfare. Thus, to rectify these drawbacks and make IHL more effective, elaborate, universally accepted, and address contemporary problems and conflicts, two Additional Protocols to the Geneva Conventions were adopted in 1977.
The Additional Protocols are a collective of two important international treaties that supplement the Four Geneva Conventions. Additional Protocol I (AP I) deals explicitly with International Armed Conflict (IAC), whereas Additional Protocol II (AP II) deals with Non- International Armed Conflict (NIAC). Together, these two treaties are considered to be the most important international treaties pertaining to IHL. However, although powerful countries such as the United States and India actively engaged in the negotiations of these two agreements, they have yet to ratify them.
India's Stand during Negotiations of Additional Protocol I :
In comparison to the Geneva Conventions, the Additional Protocol I brought four major contributions to IHL.
Prior to Additional Protocol I, the term 'International Armed Conflict' was defined as an armed conflict between two or more states who have resorted to using armed forces against each other. However, this definition did not include in its ambit the changing manners of armed conflict. Hence, the Additional Protocol I brought about its first significant contribution by amending the definition of International Armed Conflict (IAC). It defined International Armed Conflict under Article 1 (4) as a situation wherein individuals fight for their right to self-determination against colonialism, foreign occupation and racial discrimination regimes, as is enshrined under the United Nations Charter as well as the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States.
Having struggled to gain independence from colonialism, India supported national liberalisation movements within the ambit of international armed conflict within Additional Protocol I. The Indian representative, Mr Haskar, in the sixth meeting of the session, said that Article 1 (4) would ‘strengthen the cause of liberation movements'. India believed that the inclusion of national liberalisation movements was necessary for the growth of IHL. As a result, Article1(4) of Additional Protocol I cannot be deemed a barrier to India becoming a party because the material circumstances have not changed significantly.
The second significant contribution was made by the Additional Protocol I in the Means and Methods of Warfare. The basic rules of Part III on method and means of warfare under Article 35, "New Weapons" under Article 36 and the protection of civilian population under Article 48 were adopted. India consented to all these provisions under Additional Provision I. It is pertinent to note here that there are numerous weapons treaties to which India is a party. As a result, the clauses dealing with the means and tactics of warfare cannot be deemed as a barrier to India becoming a party since India is a party to several weapon treaties, India is bound by the principles of the Additional Protocol I.
The third significant contribution was the alterations made in the combatant status under Article 44(3). These alterations were made applicable only when the circumstance was in consonance with Article 1 (4) of Additional Protocol I. India consented to this provision. As a result, it can be assumed that India's rejection to ratify Additional Protocol I cannot be based on the alteration of combatant status under Article 44(3), which is similar to the situation specified in Article 1(4).
The fourth and the last significant contribution of Additional Protocol I was establishing an International Fact-Finding Commission to inquire into any facts alleged to be a grave breach as defined in the Conventions and Additional Protocol I. This concept was met with opposition by India. India argued that institutional means for resolving conflicts are already in place. It further argued that the proposed commission posed a threat to being inappropriately used for political propaganda, leading to non-corporation between parties. However, it must be noted that the Additional Protocol I's final text, in essence, make the International Fact-Finding Commission optional. Article 90, which deals with the Commission, states that each state must accept the Commission's competence on its own. As a result, a State can become a party without acknowledging the Commission's competence. Thus, India can become a party to Additional Protocol I without adopting the Commission's competence, notwithstanding its disagreement throughout the discussions.
India's Stand during Negotiations of Additional Protocol II :
India has objected to Additional Protocol II since its very inception. The Indian delegates, in the 39th Planery Meeting, contested that if National liberation movements have already been included in the scope of Article 1(4) of the Additional Protocol I, then Additional Protocol II would be redundant. In addition to this, India argued that Non- International Armed Conflict (NIAC) were essentially internal matters of a state. It opined that with national liberalisation movements being an exception, domestic or municipal laws and regulations should resolve conflicts that arose within the territory of a nation. However, this stance taken by India is incorrect as it limits the scope of NIAC only to national liberalisation movements. It failed to realise that NIAC can take place due to multiple reasons. The application of IHL is based on two primary criteria’s – the gravity of the conflict and its humanitarian consequences. Due to the extreme seriousness of the war and humanitarian concerns, national liberation movements were placed in the IAC category. As a result, India's unwillingness to acknowledge the existence of NIAC goes against the factual and conceptual reality of various types of NIAC, as well as the fundamental principles upon which IHL is founded. Hence, India failed to recognise this and believed that the provisions of Additional Protocol II intervened with the internal matters of the State.
However, although India viewed the non-international armed conflict as an internal matter of the state during the negotiations, it subsequently changed its position by becoming a signatory to the multiple numbers of internal conflicts related to treaties such as Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices,Convention on Certain Conventional Weapons (CCW) and the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict.
Reasons for non-ratification
The government has not spelt out the grounds for India's non-accession to these accords. However, on 02nd January 2019, a question regarding India's position for not being a party to the Additional Protocols of the Geneva Conventions was posed in the lower house of the Parliament, to which the Minister of State for External Affairs precisely responded by saying,
"No decision has been taken to ratify the Additional Protocols I and II to the Geneva Conventions. Accordingly, the Additional Protocols I and II do not have provisions concerning the option of" ratification with reservation".
Hence, from this response, it may be safe to deduce that India has certain constraints with the content of the Additional Protocols and that the Additional Protocols do not provide for reservations.
One of the critical reasons for India's non-ratification of the Additional Protocols is that it does not provide for reservation. Indian governments have shown political resistance towards international legal instruments that do not provide for reservation. The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights are two examples. India refers to the declarations that it attaches to these Covenants as declarations rather than reservations. However, as stated in Article 2(1)(d) of the Vienna Convention on the Laws of Treaties, 1969 (hereinafter, VCLT), the nature of the reservations is determined by the appended statement's power to exclude or change the legal impact of the relevant provisions, not by its designation. Some of India's affirmations to both Covenants could be interpreted as reservations, eliminating or limiting the legal impact of applicable provisions. This is particularly relevant to the declaration made concerning Article 1 of both Covenants, which deals with the right to self-determination. Several countries protested the declaration, alleging that it alters the legal impact of the provision and is, therefore, antithetical to the treaty's intent. France, Germany, the Netherlands, and Pakistan are among the countries opposed to the proclamation.
Another concern is that if India ratifies these accords, it will be obligated to extend its protection to individuals engaged in armed conflict with the Indian government, giving these insurgents political legitimacy. The two Additional Protocols' objective is to protect victims of armed conflict; thus, their application to armed conflict situations becomes imperative, provided they meet the legal requirements. However, the execution of these accords does not confer any political status or recognition on non-state armed formations, as the focus of these treaties is on war conduct rather than the political legitimacy of the parties involved. Enforcing these treaties would impose a moral obligation of compliance on India's non-state armed organizations.
Thus, the government’s response in Parliament fails to provide the requisite justifications for non-accession to Additional Protocols.
Conclusion
During the diplomatic meeting for the approval of Additional Protocols, India did not oppose broadening the Geneva Conventions' scope in principle. Moreover, as mentioned above, India actively participated in the negotiations of the Protocols. Despite this, India continues to choose to stay out of the Additional Protocols' scope. Upon analysing India's objections and reasons for its non-ratification, one can only conclude that India holds a strange position on the Additional Protocols.
In an attempt to decode the justification behind India's refusal to become a signatory to the Additional Protocols, the Indian Society of International Law (ISIL), in 2012, formed a committee of experts headed by late Justice J.S.Verma. The committee submitted its report and suggested that since India is a party to several human rights treaties, India is bound by the principles of the Additional Protocols. Moreover, since these advances in international human rights and humanitarian law are already reflected in Indian domestic legislation and judicial attitudes, they do not possibly see any significant reason for India's non-ratification of the Additional Protocols.
Disclaimer: Kindly note that the views and opinions expressed are of the author(s), not Law Colloquy.
The author is a final year student (BA. LL.B) at Symbiosis Law School, Noida.
