1

Project: International Humanitarian Law

XII Trimester

PROJECT TOPIC
IHL in India: A Critical Case Study

SUBMITTED TO

Debashri Sarkar

SUBMITTED BY

Yogesh Chalisa

ROLL NO. – 2016 BA.LLB 39

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ACKNOWLEDGEMENT

I take this opportunity to thank everyone who helped me out in completing my project
directly or indirectly. I show and express a special token of gratitude towards Ma’am
Debashri Sarkar, without whose guidance and support, it would have been pretty difficult to
complete this project. I would also like to thank NLIU’s library, which helped me a lot in the
construction of this project. I acknowledge that without their help this project would not have
been seen this day.
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Contents
Review of Literature..................................................................................................................4

Statement of Problem.................................................................................................................5

Objective of study......................................................................................................................5

Hypothesis..................................................................................................................................5

Research Questions....................................................................................................................5

1. Introduction.........................................................................................................................5

2. What is international humanitarian law?............................................................................6

3. Sources of IHL....................................................................................................................7

4. IHL in Internal Armed Conflict..........................................................................................7

The Threshold of Internal Armed Conflict............................................................................9

Protection Framework of International Human Rights Law relevant to internal armed

conflict....................................................................................................................................9

5. Reasons behind India's Non-Recognition of AP II and its Effect.....................................10

6. Geneva Convention Act 1960...........................................................................................12

Enforceability of Geneva Convention Act 1960 Against India...........................................15

Enforcing India’s Commitment in Geneva Convention through Constitution....................15

Article 14..........................................................................................................................15

Article 20..........................................................................................................................16

Article 21..........................................................................................................................17

Article 22..........................................................................................................................18

7. Conclusion........................................................................................................................18

Bibliography.............................................................................................................................20
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Review of Literature
Hafsa Bhatt, “Geneva Convention a Case Study in India”, SSRN.

In this article, Hafsa Bhatt has made a comparative study of the Geneva Conventions of 1949
with the Geneva Act of 1960 and other domestic laws within the legal framework in India.
She has tried to show how certain domestic laws which are in force within the territory of
India give effect to the various provisions available under Geneva Conventions. The author
has traced out relevant provisions of the domestic laws and drawn a parallel with the Geneva
Convention. She has argued that certain imperative constitutional provisions like equality
before law, protection in respect of conviction of offences, protection of life and personal
liberty, protection against arrest and detention can be used to enforce obligation of
government under Geneva Convention Act 1960.

Anita Yadav & Amit Yadav, “International Humanitarian Law in India: A Critical Case
Study”, Kathmadnu Law Review.

In this article, authors have tried to sketch the application of international humanitarian law
governing internal armed conflict in the context of India with reference various approaches at
national and international level. It also highlights the fact that India is yet to recognize
protocol II of the Geneva Convention and the concerns such has attracted. Further, the article
also attempts to venture into the grey area of determining the threshold of internal armed
conflict. Authors states that Geneva Convention Act 1960 has not adequately incorporated
India’s obligations under IHL. It does not confer any special remedy but merely indirect
protection by providing for the breaches of the Convention. The Conventions are not made
enforceable by the government against itself, nor does the Act give a cause of action to any
party of the Conventions. Author suggest a thorough revision of the Geneva Convention Act,
1960.

Geneva Convention Act 1960

The Geneva Convention Act of 1960 is divided into five chapters which deal with Short title,
extent and commencement, punishment of offenders against convention, legal proceeding in
respect of protected persons, abuse of the Red Cross and other emblems, miscellaneous
respectively. In chapter I, section 1 deals with Short title, extent and commencement of the
act. Under chapter II of the Geneva Convention Act 1960, punishments are provided for
the grave breaches of conventions committed or attempted or abetted or procured within or
 5

outside the territory of India. Chapter III provides for legal proceedings in respect of
protected persons. chapter IV punishes abuse of the Red Cross and other emblems. chapter V
is a miscellaneous part.

Statement of Problem
India has not ratified Additional Protocol II to Geneva Conventions, and due to this India is
not bound to extend the protection of Geneva Conventions to the parties taking part in
internal armed conflict. Though India has enacted Geneva Convention Act 1960 which has
provided protection to such parties, but it is not enforceable against the government.

Objective of study
To understand the reasons which made India to not ratify Additional Protocols to the Geneva
Conventions, and to study various provisions of Geneva Conventions Act 1960 and how
obligations of the government under it can be enforced.

Hypothesis
Though Geneva Convention Act 1960 cannot be enforced against the government, we can
still make the government accountable for its obligations under this Act through various
provisions of the constitution itself.

Research Questions
 Why India has not ratified Additional Protocols to the Geneva Conventions?
 How obligations of the government of India under Geneva Convention Act 1960 can
be enforced?
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1. Introduction
Since India has not ratified Additional Protocol II to the Geneva Convention, it is not bound
under international humanitarian law to provide protection of Geneva Conventions to the
parties to the internal armed conflict. But India has enacted a legislation to incorporate
Geneva Convention in its domestic law, in this Act, India has made several provisions which
give some protection to the parites to internal armed conflict. In this project, I will try to find
out how obligations of the government under this Act can be enforced against the
government.

Second part starts with a general introduction to IHL, third part gives out sources of IHL.
Fourth part describe application of IHL in non-intennational armed conflict. Fifth part is
important where I have tried to figure out the reason as to why India did not become party to
Aditional Protocol I and II. In sixth part, first I have given a general introduction of Genevan
Convention Act 1960, then I have explained that Geneva Convention Act 1960 is not
enforceable against the government of India. Then I have submitted that, despite Geneva
Convention Act 1960 is not enforceable against the government, India’s obligation under the
Act can still be enforced under constitution of India itself.

2. What is international humanitarian law?

International Humanitarian Law (IHL) is the body of laws commonly referred to as the laws
of war. Consisting of sets of rules, predominantly the Hague and Geneva conventions and
additional protocols, its function is primarily to regulate the conduct of the belligerent parties
in an armed conflict with the objective of mitigating as much as possible the inherent
suffering that results from it.5 The International Committee of the Red Cross defines it:

“The expression international humanitarian law applicable in armed conflict means

international rules, established by treaties or custom, which are specifically intended to
solve humanitarian problems directly arising from international or non-international
armed conflicts and which, for humanitarian reasons, limit the right of Parties to a
conflict to use the methods and means of warfare of their choice or protect persons and
property that are, or may be, affected by conflict. The expression (..) is often
abbreviated to international humanitarian law or humanitarian law.”6

IHL applies to international and to some extent to non-international, or internal armed

conflicts. It regulates the conduct of war (jus in bello). It limits the effects of armed conflict
 7

by protecting persons who are not or are no longer participating in the hostilities 1 and restricts
the means and methods of warfare.

It has a long history, ancient civilizations and religions has long been regulating warfare.
Universal codification of international humanitarian law began in the nineteenth century.
These rules strike a careful balance between humanitarian concerns and the military
requirements of States.

International humanitarian law applies only to armed conflict; it does not cover internal
tensions or disturbances such as isolated acts of violence. The law applies only once a
conflict has begun, and then equally to all sides regardless of who started the fighting.

3. Sources of IHL
Treaties and customary international law are the two main sources of IHL. Treaties are
agreements between States, and those States that ratify a treaty are bound by its terms.
Though a non-State armed group cannot sign a treaty, IHL treaty rules like Common Article
Three and Additional Protocol II nonetheless apply to these actors.

Many IHL rules are now considered to reflect customary international law as
well. Customary international law consists of rules derived from the consistent practice of
States based on a belief that the law requires them to act in that way. Such rules are binding
on both states and non-State armed groups.

The key IHL treaties include the 1907 Hague Regulations, the four Geneva Conventions, and
their Additional Protocols. Following are the treaties source of IHL2—

 1907 Hague Regulations (Convention (IV) respecting the Laws and Customs of War
on Land and its annex: Regulations concerning the Laws and Customs of War on
Land. The Hague, 18 October 1907)
 Convention (I) for the Amelioration of the Condition of the Wounded and Sick in
Armed Forces in the Field, Geneva, 12 August 1949
 Convention (II) for the Amelioration of the Condition of Wounded, Sick and
Shipwrecked Members of Armed Forces at Sea. Geneva, 12 August 1949

1
For example- civilians and medical, religious military personnel, wounded, shipwrecked and sick combatants,
and prisoners of war.
2
The International Committee of the Red Cross, Sources of IHL: Treaties and customary law, ICRC
(July, 27, 2020, 11:55 PM), http://ir.icrc.org/en/international-humanitarian-law/sources-ihl-treaties-customary-
law/.
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 Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August

1949
 Convention (IV) relative to the Protection of Civilian Persons in Time of War.
Geneva, 12 August 1949
 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977
 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977
 Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the
Adoption of an Additional Distinctive Emblem (Protocol III), 8 December 2005.

4. IHL in Internal Armed Conflict

IHL distinguishes between international and non-international armed conflict. International
armed conflicts are those in which at least two States are involved. They are subject to a wide
range of rules, including those set out in the four Geneva Conventions and Additional
Protocol I.

Non-international armed conflicts are those restricted to the territory of a single State,
involving either regular armed forces fighting groups of armed dissidents, or armed groups
fighting each other.3

Before 1949, internal armed conflict fell outside the ambit of IHL. This deficiency was
finally resolved in 1949 with the adoption of Geneva Conventions 1949. Article 3 common to
the four conventions obligates states to respect the basic standards of human rights in non-
international armed conflict.

Article 3 mandates that in non-international armed conflict, the contracting parties are bound
to treat humanely Persons taking no active part in the hostilities, including members of armed
forces who have laid down their arms and those placed ' hors de combat ' by sickness,
wounds, detention, or any other cause without any adverse distinction founded on race,
colour, religion or faith, sex, birth or wealth, or any other similar criteria. For this purpose,
they are and shall be prohibited from at any time and at any place whatsoever from doing any
of the following acts—

3
Anita Yadav & Amit Yadav, International Humanitarian Law in India: A Critical Case Study, 3 Kathmandu
Sch. L. Rev. 129 2013 VL - IV, 129, 131.
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 violence to life and person, in particular murder of all kinds, mutilation, cruel
treatment and torture;
 taking of hostages;
 outrages upon personal dignity, in particular humiliating and degrading treatment;
 the passing of sentences and the carrying out of executions without previous judgment
pronounced by a regularly constituted court, affording all the judicial guarantees
which are recognised as indispensable by civilized peoples.

The parties to the armed conflict are bound to collect and take care for the wounded and sick.
Further, this section allows any impartial humanitarian body, such as the International
Committee of the Red Cross, to offer its services to the Parties to the conflict. It obliges the
Parties to the conflict to further endeavour to bring into force, by means of special
agreements, all or part of the other provisions of the present Convention.
At the end, section 3 adds a caveat that the application of the preceding provisions shall not
affect the legal status of the Parties to the conflict.

Common article 3 provides limited thresholds to observe during armed conflict. In 1977, two
additional protocols to the Geneva Conventions were adopted, in which Protocol II relates to
non-international or internal armed conflict.4 India didn’t ratify Protocol II. The reasons for
non-ratification is discussed in the next part.

The Threshold of Internal Armed Conflict

To declare any conflict any as internal armed conflict, precondition is that there must exist an
armed conflict first. For armed conflict to exist, the parties should be 'organized to a greater
or lesser extent'.5 If the hostile action, directed against the legal government is of a collective
character and consists of minimum amount of organization, then there is an internal armed
conflict.'6

In other word, minimally, for an internal armed, there must be the use of armed force within
the boundary of one state between one or more armed groups and the acting government, or
between such groups exists.

4
David M. Miller, Non International armed conflicts, 31 American University LR 1981, 897, 900.
5
Knut Dormann, Elements of War Crimes under the Rome Statute of the International Criminal Court,
Cambridge University Press 2003, 442, cited in supra note 4.
6
R. Pinto, Report of the Commission of experts for the study of the question of aid to the victims of internal
conflicts (1963), 82-83, cited in supra note 4.
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Protection Framework of International Human Rights Law 7 relevant to internal

armed conflict
International Human Rights Law (herein after referred as ‘IHRL’) is an indispensable
companion to IHL. Universal Declaration of Human Rights declares that 'all human being are
born free and equal in dignity and rights. They are endowed with the reason and conscience
and should act towards one another in a spirit of brotherhood.' 8 Following the footsteps of
UDHR, ICCPR and ICESCR laid down the obligations of state to refrain from violating the
civil, political, economic, social and cultural right of the people. These rights are absolute and
non-derogable rights, they cannot be suspended at any time, not even during emergency.

Article 4(2) of the ICCPR provides that no derogation is permitted from: freedom from
torture or cruel, inhuman and degrading treatment or punishment; and freedom from medical
or scientific experimentation without consent (article 7); freedom from slavery and servitude
(article 8(1) and (2) ), freedom from imprisonment for inability to fulfill a contractual
obligation (article 11); prohibition against the retrospective operation of criminal laws (article
15); right to recognition before the law (art 16); and freedom of thought, conscience and
religion (article 18).9

5. Reasons behind India's Non-Recognition of AP II and its

Effect
India has not yet become a party to the two Additional Protocols (APs). On 02 January 2019,
a Member of the Parliament sought following clarifications10-

(a) whether steps have been taken to ratify the Additional Protocol I and II to the
Geneva Conventions;

(b) if so, the details thereof and the steps taken to bring domestic laws in compliance
with the Protocols; and

(c) if not, the reasons for abstaining in spite of the availability of the option of
''ratification with reservations''?

The answer provided by the Minister of State for External Affairs was as follows-

7
Herein after referred shortly as “IHRL”.
8
Universal Declaration of Human Rights, art 1.
9
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March
1976) 999 UNTS 171 (ICCPR) art 4(2).
10
The question and answer thereof can be accessed from:
http://164.100.47.194/Loksabha/Questions/QResult15.aspx?qref=77159&lsno=16.
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(a) & (b) No decision has been taken to ratify the Additional Protocols I and II to the Geneva
Conventions;

(c) The Additional Protocols I and II do not have provision concerning option of ''ratification
with reservation''.

Question (c) asks the minister to give reasons for abstaining from ratifying AP II, but in
return he got an evasive reply, that AP I and II do not have the option of ratification with
reservation.

During the negotiations of APs India was apparently against AP II. It was of the opinion that
internal armed conflicts were law and order problems falling under the domestic jurisdiction.
It further observed that common Article 3 was justified in four Geneva Conventions because
it was required to address the national liberation movements then. Since the national
liberation movements were covered in AP I, India found that there was no reason for the
adoption of a Protocol specifically dealing with the internal armed conflicts. 11 However, it did
not oppose the adoption of AP II during the negotiations.

India’s subsequent practice testifies to a changed position on internal conflicts. It became a

party to the treaties which are applicable to internal conflicts. These are: Protocol on
Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as
amended on 3 May 1996 (Protocol II as amended on 3 May 1996), Convention on Certain
Conventional Weapons (CCW) as amended on 21 December 2001 and the Optional Protocol
to the Convention on the Rights of the Child on the Involvement of Children in Armed
Conflict. Acceptance of these treaties makes it clear that no longer India subscribes to the
view that internal conflicts, other than national liberation movements, are law and order
situations. It seems at least clear from the positions taken at the time of negotiations and from
the subsequent practice that there is no major hindrance in India becoming a party to the APs.
Despite that, the answer provided by the Minister suggests at other issues with which India
may have differences. The probable concern would be that secessionist movements might
argue for the extension of APs to them. While the purpose of APs is not to make any value
judgment on the political demands of the parties to the armed conflict, this is where the
reference to reservations in the Minister’s answer carries significance.

11
Official Records of the Diplomatic Conference on the Reaffirmation and Development of International
Humanitarian Law Applicable in Armed Conflicts, Geneva (1974-77), Vol. VII, pp. 202-204, as cited in supra
note 4.
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It is possible to infer from the second part of the Minister’s answer that India would have
become a party with reservations, had the Protocols provided for that possibility. This offers a
perplexing position so far as reservations to treaties, in general, are concerned. Though the
Protocols do not provide for reservations, they do not prohibit either. As provided in
Article 19 (a) of the Vienna Convention on the Law of Treaties (VCLT), a State may
formulate a reservation, unless the reservation is prohibited by the treaty. Reservations and
declarations made by other States to APs attest to it. Therefore, the absence of a provision
permitting reservations is itself not a prohibition on the making of reservations. In such cases,
a reservation’s compatibility with the object and purpose of a treaty that determines the
validity of a reservation. It may be argued that since India is not a party to the VCLT, the
reservations regime provided therein is not binding on them. If that is the case, then there is
no binding obligation on India not to make reservations when a treaty does not explicitly
provide.12

On the other hand, India has the history of making reservations to treaties which do not
expressly provide for it. An example of this is the International Covenant on Civil and
Political Rights and the International Covenant on Economic, Social and Cultural Rights.
India names its statements appended to these Covenants as declarations, rather than as
reservations. However, as provided under Article 2(1) (d) of the VCLT, it is not the name that
is given to the appended statement, but its ability to exclude or modify the legal effect of the
relevant provisions that determines the nature of the reservations. Some of the declarations
made by India to both the Covenants arguably amount to reservations, excluding or
modifying the legal effect of relevant provisions. This is so specifically concerning the
declaration made to Article 1 of both the Covenants, which deals with the right to self-
determination. Several countries objected to the declaration, claiming that it modifies the
legal effect of the provision and contrary to the object of the treaty. The States that objected
to this declaration are France, Germany, Netherlands, and Pakistan.13

While there is no obligation under international law for a State to give an explanation for not
becoming a party to a treaty, it is not the same when clarification is sought in the domestic
legislative body. The answer by the Indian Minister in the Parliament, while not providing the

12
Srinivas Burra, India’s Strange Position on the Additional Protocols of 1977, EJIL:Talk! Blog of the European
Journal of International Law (July 27, 12:02 AM), https://www.ejiltalk.org/indias-strange-position-on-the-
additional-protocols-of-1977/.
13
This can be accessed from: https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-
3&chapter=4&clang=_en#EndDec.
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necessary reasons for non-accession to APs, leads to conflicting conclusions on India’s state
practice and on the legal position on reservations to treaties.14

6. Geneva Convention Act 1960

India follows a dualist approach towards implementation of international laws in India. Any
treaty or convention signed by the government cannot be automatically be implemented in
India. It must be first incorporated in the municipal laws of India. Article 253 of the
constitution of India empowers parliament to make any law for the whole or any part of the
territory of India for implementing any treaty, agreement or convention with any other
country or countries or any decision made at any international conference, association or
other body.

India signed Geneva Conventions on 16th of December 1949 and it was ratified on 9 th of
November 1950. To give effect to the Geneva Convention, the Geneva Conventions Act 1960
was passed by the Indian parliament under article 253 of the Indian Constitution, read with
entries 13 and 14 of the Union List in the Seventh Schedule, based on Geneva Convention.
The act provides for punishment for grave breaches of the Geneva Conventions 1949 and
regulates legal proceedings with respect to protected persons (prisoners of war and internees).
Apart from that, the act also prohibits misuse of the protected emblems such as the Red
Cross.

The Geneva Convention Act of 1960 is divided into five chapters which deal with Short title,
extent and commencement, punishment of offenders against convention, legal proceeding in
respect of protected persons, abuse of the Red Cross and other emblems, miscellaneous
respectively.

In chapter I, section 1 deals with Short title, extent and commencement of the act. This act
was passed in on 12th March 1960, and it came into force on 14th August, 1961, vide
notification No. S.R.O. 222(E), dated 2nd August, 1961. Unlike many other Acts, this act was
extended to the entire India, inclusing state of J&K. Section 2 gives definition of some terms
used in the Act.

Under chapter II of the Geneva Convention Act 1960, punishments are provided for the
grave breaches of conventions committed or attempted or abetted or procured within or
outside the territory of India. The punishment includes death sentence, life imprisonment, and

14
Supra note 13.
 14

imprisonment for a term which may extend to fourteen years depending on the offence
involved. If it’s a willful killing of the person protected by any of the conventions, he/she
shall be punished with death or with imprisonment of life irrespective of Nationality and
Citizenship15. The said provision coincides and brings into effect Article 14. Article 14
applies to any person and is not limited to the citizens alone. An offence under this act falls
within the jurisdiction of a Court of Session16.

Chapter III provides for legal proceedings in respect of protected persons. The act makes it
mandatory to notify certain particulars like the full name and description of the accused,
his place of detention, offence with which he is charged, time and place appointed for the
trial17 to the protecting power18 and if the accused is the prisoner of war then on the accused
and the prisoner’s representative. These provisions are in consonance with Article 22 of The
Constitution of India which deals with the rights of the arrested persons which states that he
shall be informed about the grounds of his arrest as soon as possible. Section 50 of the Code
of Criminal Procedure 1973 contains an analogous provision which puts the police officer
or other arresting persons under the obligation to communicate to him full particulars of the
offence for which he is arrested or other grounds of arrested.19

Section 9 provides a provision for the legal representation of certain persons. Any person
who is brought up for a trial for an offence under section 3 of this act or a protected prisoner
is brought up for trial for any offence shall not proceed with the trial unless the accused is
represented by a legal practitioner and also the legal representative is to be given not less than
fourteen days’ time gap after the instruction for the representation of the accused at the trial,
however, the detention time can be elongated notwithstanding any other law until the
provisions of this section is complied with. The Constitution of India provides for the
corresponding provisions to the above mention section 9 of the Geneva Convention Act 1960
under Article 22. The person arrested shall have a right to consult and be represented by a
lawyer of his choice. However, the difference is evident if we read both the provisions
together, the Geneva Convention Act 1960 only talks about the legal representation however
15
Section 3, the Geneva Convention Act 1960, NO. 6, Act of Parliament, 1960.
16
Section 5, ibid.

17
Only relevant portion referred from Section 8 (2) (a), 8 (2) (b), 8 (2) (c), 8 (2) (d) of the Geneva Convention
Act 1960.
18
Section 2(d) defines “protecting power” as, in relation to a protected internee or a protected prisoner of war,
means the power or organisation which is carrying out, in the interests of the power of which he is a national or
of whose forces he is or was at any material time a member, the duties assigned to protecting powers under the
Third Convention or, as the case may be, the Fourth Convention;
19
Geneva Convention: A Case Study in India, Hafsa Bhat.
 15

the Constitution of India provides for such a legal representation which is of the choice of
detainee. Similar provision is also available under section 303 of the Code of Criminal
Procedure 1973.

Section 11 deals with deduction of the term of imprisonment for which the convicted
person has been in custody in connection with that offence before the trial.

Enforceability of Geneva Convention Act 1960 Against India

The Geneva Convention Act 1960 has not been made enforceable against the government of
India neither does it provide for any specific mechanism to give a cause of action to any party
for the enforcement of the provisions of this act or to its schedules.20

Section 17 of the act clearly says that the courts can clearly entertain a complaint only if it’s
filed by Government or an officer of the government specified by notification. So the
aggrieved part can approach the court only through government. No explicit rights are
available to the protected persons8 under the act and at the same time there is no obligation on
the government of India or the municipal courts for their enforcement.21

However, some obligation is taken up by the government with respect to the protection of
civilian rights. The Act is also ambiguous and does not provide for an unambiguous method
to move the municipal court owing to the breach of various provisions of the act or the
schedules to the act. Moreover, the act has been made subject to certain domestic laws such
as in case of court martial with respect to certain civil offences, Army Act, 1950 (46 of 1950),
the Air Force Act, 1950 (45 of 1950), or the Navy Act, 1957 (62 of 1957) and they will have
precedence over the Geneva Act of 1960 as if this chapter has not been passed.22

Enforcing India’s Commitment in Geneva Convention through Constitution

Though the Geneva Convention Act 1960 has not been made enforceable against the
government of India, obligations of the government under the Geneva Conventions can still
be enforced through provisions of the Constitution which give effect to the various provisions
available under Geneva Conventions, whether directly or indirectly.23

Article 14
Article 14 guarantees every person right to equality before law and equal protection of laws.
The guiding principle of the Article is that all persons and things similarly circumstanced
20
Rev. Mons. Sebastian Francisco Xavier Dos Remedios Monteiro v. The State of Goa, 1970 AIR 329.
21
Ibid.
22
Section 7, supra note 16.
23
Hafsa Bhat, Geneva Convention: A Case Study in India, SSRN (July 27, 2020, 12:10 AM),
https://ssrn.com/abstract=2263664 or http://dx.doi.org/10.2139/ssrn.2263664.
 16

shall be treated alike both in privileges conferred and liabilities imposed 24.This Article is
available to “any person”, citizens as well as non-citizens within the territory of India.

Thus this article directly enforces Article 3 of the first Geneva Convention which talks about
the humane treatment of hors de combats without any adverse distinction founded on race,
colour, religion or faith, sex, birth or wealth, or any other similar criteria.

It also enforces Article 12 of the same convention which deals with the care of humane
treatment of wounded and sick members of the armed forces by the party to the conflict in
whose power they may be, without any adverse distinction founded on sex, race, nationality,
religion, political opinions, or any other similar criteria.

Article 31 talks about the selection of personnel for return under Article 30 to be made
irrespective of any consideration of race, religion or political opinion25. Similar provisions are
mentioned under Article 3 and 12, Article 3 and 16 and Article 3, 13 and 27 of the second,
third and fourth Geneva Conventions respectively.

Also under Article 49 of the first Geneva Convention obligation has been imposed upon each
high contracting part to search for persons alleged to have committed breaches, and shall
bring such persons, regardless of their nationality, before its own courts. Similar provision is
available under Article 50, 129 and 146 of the second third and fourth convention.

Certain provisions are also implemented to give due regard to women on an equal pedestal
with men, Article 14 of the third Geneva Convention is one such provision. It provides for
equal treatment of women with that of men. However, preferential treatment in the favour of
children less than fifteen years of age, pregnant women and mothers of children less than
seven years to the extent as the nationals of the state concerned is allowed 26. Additional food
is provided to the expectant mothers and children below the age of fifteen, keeping into
consideration their physiological needs27.

Article 20

Article 20 provides “No person accused of any offence shall be compelled to be a witness
against himself”. This article automatically enforces Article 17 of the third Geneva
Convention which provides that “no physical or mental torture, nor any other form of

24
INDIA CONST. art. 14.
25
Relevant portions only, for complete Articles refer to “Convention (I) for the Amelioration of the Condition of
the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949”.
26
Article 38 (5) of Fourth Geneva Convention.
27
Article 89, of the Fourth Geneva Convention.
 17

coercion, may be inflicted on prisoners of war to secure from them information of any kind
whatever. Prisoners of war who refuse to answer may not be threatened insulted, or exposed
to unpleasant or disadvantageous treatment of any kind. He is only bound to give some of the
information such as his surname, first name, rank, army regiment etc.

Article 21

Article 21 of the constitution of India is most cardinal to IHL and in particular to the Geneva
Convections. The purpose of IHL is to provide greater protection of human life, giving them
liberties and freedoms alongside with mitigating and lessen human sufferings. When we talk
about humanitarian laws applicable in conflict situations we actually uphold the individual
capacity and the sine qua non is the protection of humans. Geneva Conventions upholds the
concept of protection of civilians, detainees, children, aliens, refugees and prisoners of war
and also their property.

Under article 21, state has right to deprive any person right to life according to procedure
established by law. So this article puts a limitation on the state that it cannot deprive right to
life of a person without procedure established by law. Under humanitarian law also the
enemy combatants have a right to kill but within the limits, beyond which killing will be
illegitimate. For example hors de combat28 are protected persons and are not legitimate
targets of attack.

Many other aspect of the right to life are manifested under the Geneva Convention like the
prohibition on the use of various kinds of weapon, prohibition of torture and inhuman
treatment, protection of means necessary for life. Under Article 38 of the fourth convention
issues related to employment of persons are met with. It provides that if during the course of
war protected people have lost their gainful employment, they shall be granted the
opportunity to find paid employment. If the protected persons due to certain security concerns
are prevented from finding paid employment it shall be the duty of the said party to ensure
his support and that of his dependents.29

28
Common Article 3 of the Geneva Conventions.
29
Article 39, of the Fourth Geneva Convention.
 18

Article 22
Article gives certain rights to arrestee like—right to be informed of the grounds of his arrest,
right to consult and be defended by a legal practitioner of his choice, right to be produced
before judicial magistrate at earliest as a protection against custodial torture.

Article 39A of the constitution of India also provides for the similar rights for the accused
“the state is under an obligation to provide for free legal case in various cases”. If a prisoner
sentenced to imprisonment is virtually unable to exercise his right, there is implicit in the
court under Article 142 of the Constitution of India read with Articles 21 and 39A of the
constitution power to assign council for such imprisoned individual for doing complete
justice.

These articles enforce Article 71 of the Fourth Geneva Convention which provides that
accused persons shall be promptly informed, in writing, in a language which they understand,
of the particulars of the charge preferred against them. Under Article 72 they have been given
the right to be assisted by a qualified advocate or counsel of their own choice and sufficient
amount of time and necessary facilities is to be made available to the advocate to prepare his
defence. If the accused fails to exercise his right to choose his advocate under this act them
the protecting part is under an obligation to provide him with an advocate or counsel. An
interpreter is also to be made available to the accused during the course of investigation and
also during the hearing of the case.

So even though Geneva Conventions are not enforceable against the government itself, the
Constitution of India itself provides enough provisions through which can indirectly enforce
India’s obligation towards Geneva Conventions. The court only need to interpret these
constitutional provisions in the light of four Geneva Conventions and also under the Geneva
Convention Act. State is obliged “to endeavour to foster respect for international law and
treaty obligations in dealings of organised people with one another30”.

7. Conclusion
In response to the question raised in the parliament about the reason for India’s non-
ratification of the Additional Protocols I and II to the Geneva Conventions, the Minister of
State for External Affairs gave an evasive reply to that question. Now we can only speculate
as to what is the reasons for non-ratification of protocols. During the negotiations of APs
India was apparently against AP II because it was of the opinion that internal armed conflicts
30
Article 51, The Constitution of India.
 19

were law and order problems falling under the domestic jurisdiction. But India’s subsequent
practice testifies to a changed position on internal conflicts. It became a party to the treaties
which are applicable to internal conflicts. Acceptance of these treaties makes it clear that no
longer India subscribes to the view that internal conflicts, other than national liberation
movements, are law and order situations. 

The probable concern would be that secessionist movements might argue for the extension of
APs to them but APs do not make any value judgment on the political demands of the parties
to the armed conflict. India could have become party by formulating any reservation if it had
any, as India has the history of making reservations to treaties which do not expressly provide
for it.

To give effect to the Geneva Convention, the Geneva Conventions Act 1960 was passed by
the Indian parliament but it has not been made enforceable against the government of India.
Obligations of the government, however, under the Geneva Conventions can still be enforced
through provisions of the Constitution. Article 14 of the constitution can enforce Article 3 of
the first Geneva Convention which talks about the humane treatment of hors de combats
without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth,
or any other similar criteria. Article 20 of the constitution can enforce Article 17 of the third
Geneva Convention which provides that “no physical or mental torture, nor any other form of
coercion, may be inflicted on prisoners of war to secure from them information of any kind
whatever. Prisoners of war who refuse to answer may not be threatened insulted, or exposed
to unpleasant or disadvantageous treatment of any kind. He is only bound to give some of the
information such as his surname, first name, rank, army regiment etc. Article 21 of the
constitution of India can provide greater protection to civilians, detainees, children, aliens,
refugees and prisoners of war and also their property. Article 22 can enforce Article 71 of the
Fourth Geneva Convention which provides that accused persons shall be promptly informed,
in writing, in a language which they understand, of the particulars of the charge preferred
against them.

There are already some provisions in our Constitution by which we can enforce India’s
obligation under Geneva Conventions, we have to just infuse our constitutional principles in
law of war.

Bibliography
 Anita Yadav & Amit Yadav, “International Humanitarian Law in India: A Critical Case Study”,
 20

Kathmadnu Law Review.

 Hafsa Bhatt, “Geneva Convention a Case Study in India”, SSRN,
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2263664.
 Srinivas Burra, “India’s Strange Position on the Additional Protocols of 1977”, EJIL:Talk! Blog of the
European Journal of International Law, https://www.ejiltalk.org/indias-strange-position-on-the-
additional-protocols-of-1977.