India’s Stance on the Additional Protocols to the Geneva Conventions of 1977

When two Additional Protocols were adopted to supplement the Geneva Conventions in 1977, the world witnessed a pivotal moment in international humanitarian law. These protocols aimed to address the evolving nature of armed conflicts and strengthen protections for victims of war. Yet, despite actively participating in the negotiations, India has not ratified either Protocol I or Protocol II for nearly five decades. This position reflects a complex interplay between India’s commitment to humanitarian principles and its concerns about sovereignty, domestic security, and the practical implementation of these international norms.

India’s support for expanding humanitarian law 🔗

During the diplomatic conference convened from 1974 to 1977, India actively engaged in shaping the Additional Protocols. The country’s participation demonstrated a genuine interest in strengthening international humanitarian law to reflect contemporary conflicts and humanitarian concerns.

India’s most notable contribution was its strong support for including national liberation movements within the framework of international armed conflicts. Article 1(4) of Protocol I categorizes armed struggles against colonial domination, foreign occupation, and racist regimes as international armed conflicts. This expansion aligned perfectly with India’s historical experience as a former colony and its support for anti-colonial movements worldwide. Indian representatives argued that this provision represented an important achievement in developing humanitarian law, recognizing that freedom fighters deserved the same protections as conventional soldiers.

This position was more than rhetorical support. India believed that national liberation movements were among the first to respect humanitarian principles, and their inclusion would strengthen both the legitimacy of these struggles and the application of humanitarian rules. The country viewed this expansion as necessary to address the reality that armed conflicts were no longer limited to wars between sovereign states.

Concerns about weapons regulation and military objectives 🔗

While India supported the broader humanitarian goals of Protocol I, the country expressed reservations about certain technical provisions. One area of concern involved the rules governing means and methods of warfare, particularly those dealing with the distinction between military and civilian objects.

Protocol I requires parties to a conflict to distinguish between civilian objects and military targets at all times. The protocol also prohibits weapons whose effects cannot be limited as required by international humanitarian law. While these principles seem straightforward, their practical application in complex combat situations raised questions for Indian negotiators.

India participated in discussions on Articles 35 and 48, which deal with basic rules for methods and means of warfare and protection of civilian populations. While the country did not formally oppose these provisions, concerns remained about the specificity of prohibited weapons and the challenges of applying these distinctions in actual combat scenarios. The difficulty of determining what constitutes a military objective versus a civilian object in rapidly changing battlefield conditions presented practical implementation challenges that India found troubling.

Despite these concerns, India has since become a party to several weapons treaties, including the Convention on Certain Conventional Weapons and its protocols. This subsequent practice suggests that India’s initial concerns about weapons regulation may not have been insurmountable obstacles to ratification.

The fact-finding commission controversy 🔗

Among all provisions of Protocol I, India expressed its strongest objection to the establishment of an International Fact-Finding Commission. Article 90 of Protocol I proposed creating this commission to inquire into alleged grave breaches of the Geneva Conventions and the Protocol.

Indian representatives argued that existing institutional mechanisms were sufficient for resolving disputes between parties to conflicts. The delegation feared that the proposed commission could be exploited for political propaganda purposes, potentially leading to non-cooperation between conflicting parties. In India’s view, introducing a new international body risked politicizing humanitarian investigations rather than strengthening accountability.

However, this objection need not have prevented India’s ratification. Article 90(2)(a) explicitly states that recognizing the commission’s competence requires separate consent, even after ratifying Protocol I. A state does not automatically accept the commission’s jurisdiction simply by becoming a party to the Protocol. This optional nature means India could have ratified the Protocol while declining to recognize the commission’s authority, addressing its specific concern without rejecting the entire treaty.

Protocol II and the sovereignty question 🔗

India’s position on Protocol II, which addresses non-international armed conflicts, was markedly different and more contentious than its stance on Protocol I. From the inception of the diplomatic conference, Indian delegates raised fundamental objections to the very concept of this protocol.

At the 39th Plenary Meeting, the Indian delegation argued that once national liberation movements had been included in Protocol I as international conflicts, Protocol II became redundant and unnecessary. India contended that non-international armed conflicts were essentially law and order problems within the exclusive domestic jurisdiction of each state. The delegation believed that except for national liberation movements, conflicts occurring wholly within a state’s territory should be resolved through domestic legal frameworks.

This position reflected deep concerns about sovereignty and potential external interference in internal matters. India feared that Protocol II could be misused to legitimize secessionist movements or provide grounds for international intervention in domestic conflicts. The protocol’s application to internal armed conflicts raised the specter of other nations or international bodies questioning India’s handling of insurgencies, communal violence, or separatist movements.

The delegation’s view that common Article 3 of the Geneva Conventions was designed primarily to address national liberation struggles further reinforced this position. Since those struggles now fell under Protocol I, Indian representatives saw no justification for a separate protocol dealing with internal conflicts.

The evolution of India’s position on internal conflicts 🔗

Despite India’s initial opposition to Protocol II, the country’s subsequent practice reveals a significant shift in its approach to non-international armed conflicts. India has become a party to several international treaties governing internal conflicts, including the Protocol on Prohibitions or Restrictions on the Use of Mines as amended in 1996, the Convention on Certain Conventional Weapons as amended in 2001, and the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict.

This evolution demonstrates that India no longer subscribes to the view that internal conflicts are purely domestic law and order matters outside the purview of international humanitarian law. The country’s ratification of these treaties indicates acceptance that non-international armed conflicts can be serious enough to warrant international legal regulation, challenging the original rationale for opposing Protocol II.

The reservation controversy 🔗

In 2019, when questioned in the Indian Parliament about ratifying the Additional Protocols, the Minister of State for External Affairs provided a response that raised more questions than it answered. The Minister stated that no decision had been taken to ratify the Protocols and added that the Additional Protocols do not have provisions concerning the option of ratification with reservation.

This statement presents a puzzling legal position. Under the Vienna Convention on the Law of Treaties, a state may formulate reservations to a treaty unless the reservation is explicitly prohibited. The absence of a provision permitting reservations does not constitute a prohibition against making them. Several states have made declarations to the Additional Protocols, demonstrating that reservations are possible.

Moreover, India’s own practice contradicts this reasoning. The country has made reservations to treaties that do not explicitly provide for them, including the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. India’s declaration concerning Article 1 of both Covenants, which deals with the right to self-determination, has been challenged by several countries as a reservation that modifies the legal effect of the provision.

This inconsistency suggests that the stated reason for non-ratification may not reflect India’s actual concerns. The real obstacles likely relate to substantive issues about sovereignty, domestic security, and the potential application of these protocols to India’s internal conflicts.

Current status and implications 🔗

As of 2025, Protocol I has been ratified by 175 states, while Protocol II has 168 parties. India remains among a small group of countries in the Asia-Pacific region that have ratified neither protocol, along with nations like Pakistan, Indonesia, Sri Lanka, and Myanmar.

The consequences of India’s non-ratification extend beyond symbolic significance. During armed conflicts or situations of internal violence, questions arise about which legal standards apply. While India is bound by the four Geneva Conventions and common Article 3, which addresses non-international armed conflicts, the more detailed protections and rules contained in the Additional Protocols do not formally apply.

In 2012, the Indian Society of International Law formed a committee of experts headed by Justice J.S. Verma to examine India’s position on the Additional Protocols. The committee’s report suggested that since India is party to several human rights treaties, it remains bound by important principles contained in the Additional Protocols. The report recommended that India consider becoming a party to both protocols while giving a national institution like the National Human Rights Commission authority to determine whether the protocols apply to particular situations.

This recommendation attempts to address India’s sovereignty concerns while strengthening humanitarian protections. However, the government has not acted on these suggestions, and no timeline exists for reconsidering India’s position on ratification.

The path forward 🔗

India’s stance on the Additional Protocols reflects the broader tension between international humanitarian commitments and domestic political realities. The country’s active participation in negotiating these protocols, combined with its support for expanding protections to national liberation movements, demonstrates genuine commitment to humanitarian principles. Yet concerns about sovereignty, the potential for misuse of international mechanisms, and the application of these norms to internal conflicts have prevented ratification.

The evolution of India’s practice since 1977, particularly its ratification of other humanitarian treaties applicable to internal conflicts, suggests that some original objections may no longer be valid. The optional nature of certain Protocol provisions, such as the International Fact-Finding Commission, means that specific concerns could be addressed without rejecting the entire framework.

Nevertheless, the fundamental question of how international humanitarian law applies to internal conflicts remains sensitive. India’s experience with insurgencies, separatist movements, and communal violence shapes its cautious approach to instruments that might be interpreted as legitimizing armed opposition groups or inviting international scrutiny of domestic security operations.

What do you think? Given India’s subsequent ratification of treaties governing internal armed conflicts, does the original justification for opposing Protocol II still hold? Should concerns about potential misuse of international humanitarian law mechanisms outweigh the benefits of strengthening protections for victims of armed conflicts?

References

1. https://www.ejiltalk.org/indias-strange-position-on-the-additional-protocols-of-1977/
2. https://www.jurist.org/commentary/2017/08/md-tabish-eqbal-india-nonratification/
3. https://www.icrc.org/en/article/protocols-i-ii-geneva-conventions
4. https://en.wikipedia.org/wiki/Convention_on_Certain_Conventional_Weapons
5. https://en.wikipedia.org/wiki/Protocol_I_to_the_Geneva_Conventions