When the international community gathered in Geneva in 1977 to adopt two Additional Protocols to the Geneva Conventions, India played an active role in the negotiations. Yet, nearly five decades later, India has not ratified these critical humanitarian law instruments. This deliberate stance reflects a complex balancing act between advancing humanitarian principles and protecting national sovereignty in an era of evolving armed conflicts.
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Understanding the Additional Protocols
The 1977 Additional Protocols emerged from a recognition that the four Geneva Conventions of 1949, while comprehensive, did not adequately address the changing nature of armed conflicts. Additional Protocol I deals with international armed conflicts, while Additional Protocol II addresses non-international armed conflicts. Together with the original Conventions, these instruments form the bedrock of international humanitarian law.
The Protocols introduced significant developments. Protocol I expanded protections for civilians and combatants in international conflicts, updated rules on means and methods of warfare, and notably, recognized wars of national liberation as international armed conflicts. Protocol II extended humanitarian protections to victims of internal armed conflicts, filling a critical gap in the legal framework.
India’s support for national liberation movements
During the 1974-1977 diplomatic conferences, India strongly supported several key provisions of Protocol I. Most significantly, India championed Article 1(4), which categorizes armed conflicts involving peoples fighting against colonial domination, alien occupation, and racist regimes as international armed conflicts. The Indian delegation described this provision as an important achievement in developing international humanitarian law.
This position aligned with India’s post-independence foreign policy and its commitment to anti-colonialism. Having experienced colonial rule, India viewed the recognition of national liberation movements as essential for advancing the right to self-determination enshrined in the UN Charter. The delegation believed Article 1(4) would strengthen the cause of liberation movements worldwide.
India also supported critical provisions on warfare methods, including prohibitions on indiscriminate attacks against civilians and restrictions on certain weapons. The consensual adoption of these provisions during negotiations demonstrated India’s agreement with strengthening humanitarian protections in armed conflicts.
The fact-finding commission concern
One specific objection India raised during negotiations concerned the International Fact-Finding Commission established under Article 90 of Protocol I. India argued that existing institutional mechanisms were sufficient for resolving disputes and feared the commission might be exploited for political propaganda, potentially leading to non-cooperation between parties.
However, this concern appears surmountable. Article 90 makes the commission’s jurisdiction optional – states must separately consent to recognize its competence even after ratifying Protocol I. India could therefore become a party to the Protocol without accepting the commission’s authority, addressing its sovereignty concerns while embracing other humanitarian provisions.
The Protocol II challenge
India’s approach to Protocol II reveals deeper concerns about sovereignty and internal affairs. From the outset, the Indian delegation objected to the very concept of a protocol addressing non-international armed conflicts. Their argument was twofold: first, since national liberation movements were already covered under Protocol I, Protocol II seemed redundant; second, internal conflicts were essentially law and order problems falling within exclusive domestic jurisdiction.
During the 39th Plenary Meeting, Indian representatives characterized non-international armed conflicts as matters to be handled through domestic legal frameworks. When the draft Article 1 of Protocol II was put to a vote, India voted against it. This stance reflected anxiety about international humanitarian law’s potential application to internal security challenges.
The concern was not merely theoretical. Protocol II was perceived as a threat to state sovereignty, leading many countries including India, the United States, Pakistan, Iran, and Israel to withhold ratification. Article 3 of Protocol II itself acknowledges these sensitivities, prohibiting invocation of the Protocol to affect state sovereignty or justify intervention in internal affairs.
A shift in practice
Despite its initial resistance to Protocol II, India’s subsequent practice suggests a changed position on internal conflicts. India has ratified several treaties applicable to non-international armed conflicts, including the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices, the Convention on Certain Conventional Weapons, and the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict.
This acceptance of treaties applicable to internal conflicts indicates India no longer views such situations purely as law and order matters. The evolution suggests that initial objections may have softened over time, though formal ratification of the Additional Protocols remains elusive.
The reservation question
In 2019, when questioned in Parliament about ratifying the Additional Protocols, the Minister of State for External Affairs stated that no decision had been taken and noted that the Protocols do not contain provisions for ratification with reservations. This response raised interesting questions about India’s treaty practice.
While the Protocols do not explicitly provide for reservations, they also do not prohibit them. Under the Vienna Convention on the Law of Treaties, states may formulate reservations unless explicitly prohibited, provided they are compatible with the treaty’s object and purpose. Several states have made declarations and reservations to the Protocols, demonstrating that such an approach is possible.
Interestingly, India has previously made what it terms “declarations” to other treaties like the International Covenant on Civil and Political Rights, some of which functionally operate as reservations by excluding or modifying legal effects of certain provisions. This practice suggests the absence of an explicit reservation clause need not be an insurmountable barrier.
Contemporary relevance and expert recommendations
In 2012, the Indian Society of International Law constituted an expert committee headed by the late Justice J.S. Verma to examine India’s position on the Additional Protocols. The committee recommended that India consider becoming a party while authorizing a national institution like the National Human Rights Commission to determine applicability in specific situations.
The committee noted that having ratified several human rights treaties, India already remains bound by important principles reflected in the Additional Protocols. Indian domestic law and judicial attitudes increasingly mirror developments in international humanitarian law, suggesting a narrowing gap between formal non-ratification and practical adherence to humanitarian norms.
The continued non-ratification carries implications. With 175 states having ratified Protocol I and 170 states having ratified Protocol II, India’s absence from these instruments becomes more conspicuous. The Protocols represent the most comprehensive development of humanitarian law since 1949, and non-participation potentially limits India’s voice in shaping their interpretation and application.
Navigating sovereignty and humanity
India’s approach to the Additional Protocols reveals a careful calculation. Supporting provisions that align with its historical commitment to anti-colonialism and self-determination, India championed the recognition of national liberation movements. Similarly, endorsing prohibitions on inhumane weapons and protection of civilians reflected genuine humanitarian concerns.
Yet concerns about sovereignty, particularly regarding the application of international humanitarian law to internal conflicts, have proven more durable. The fear that ratifying Protocol II might legitimize secessionist movements or subject internal security operations to international scrutiny continues to weigh heavily in policy calculations.
This tension between humanitarian principles and sovereignty concerns is not unique to India. It reflects a broader challenge in international humanitarian law: balancing universal humanitarian standards with respect for state sovereignty. The question is whether the protections offered by the Protocols can be embraced without compromising legitimate security interests.
What do you think? Given that India has already ratified several treaties applicable to internal conflicts and that the Protocols contain safeguards for state sovereignty, do the original objections to ratification still hold merit today? How might India balance its commitment to humanitarian principles with concerns about sovereignty and internal security?
References
- https://www.ejiltalk.org/indias-strange-position-on-the-additional-protocols-of-1977/
- https://www.jurist.org/commentary/2017/08/md-tabish-eqbal-india-nonratification/
- https://voelkerrechtsblog.org/recognizing-violent-encounters-in-north-east-india-as-internal-armed-conflict-the-way-forward-to-curb-human-rights-violations/
- https://m.thewire.in/article/news/india-humanitarian-law-additional-protocols
- https://en.wikipedia.org/wiki/Protocol_I_to_the_Geneva_Conventions
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