International Humanitarian Law: Geneva Conventions and India

International humanitarian law, also called the law of armed conflict or jus in bello, governs how wars are fought. It protects those who do not or no longer take part in hostilities and restricts the means and methods of warfare. It applies equally to all parties, regardless of whether the war itself was lawful, which is governed separately by jus ad bellum. This note covers its development, the Geneva Conventions, its core principles, prisoners of war, grave breaches, occupation and India's law.

1. Development

Figure 1: From the Lieber Code to the Additional Protocols

• Origins. After witnessing the battle of Solferino, Henry Dunant inspired the founding of the International Committee of the Red Cross (1863) and the first Geneva Convention (1864); the Lieber Code (1863) codified the laws of war for the US Army.
• Hague law and Geneva law. Hague law, chiefly the Hague Regulations of 1899 and 1907, governs the conduct of hostilities and weapons; Geneva law protects victims of war; Additional Protocol I, 1977 merged the two.
• Independence of the two branches. IHL applies equally to aggressor and victim; the unlawfulness of a war does not relieve either side of its obligations.

2. The Geneva Conventions, 1949

Figure 2: The Conventions and Protocols

• Universal ratification. All states are parties to the four Conventions; India ratified them in 1950.
• Common Article 2. The Conventions apply to declared war or any other armed conflict between two or more parties, even if a state of war is not recognised, and to all cases of occupation, even without armed resistance.
• Common Article 3. In armed conflicts not of an international character, persons taking no active part in hostilities must be treated humanely; murder, torture, hostage taking, outrages on personal dignity and trials without regular judicial guarantees are prohibited (Topic 21)
• Additional Protocol III, 2005. Created the red crystal as an additional emblem.

3. Principles of the Conduct of Hostilities

Figure 3: Core principles

• Distinction. Parties must at all times distinguish between civilians and combatants and between civilian objects and military objectives, and direct operations only against military objectives (Additional Protocol I, Article 48)
• Proportionality. An attack is prohibited if it may be expected to cause incidental civilian loss excessive in relation to the concrete and direct military advantage anticipated (Article 51(5)(b))
• Martens Clause. In cases not covered by treaties, civilians and combatants remain under the protection of the principles of international law derived from established custom, the principles of humanity and the dictates of public conscience.
• Nuclear Weapons opinion, 1996. The cardinal principles of distinction and the prohibition of unnecessary suffering apply to nuclear weapons, whose threat or use would generally be contrary to humanitarian law; the Court could not conclude definitively whether their use would be lawful in an extreme circumstance of self-defence in which a state's very survival is at stake.

4. Combatants and Prisoners of War

Figure 4: Who is a prisoner of war (Third Convention, Article 4)

• Treatment. Prisoners must be treated humanely and protected against violence, intimidation and public curiosity; they need give only name, rank, date of birth and serial number, and no coercion may be used to obtain information (Article 17)
• Repatriation. Prisoners must be released and repatriated without delay after the cessation of active hostilities (Article 118); India repatriated over 90,000 Pakistani prisoners after the 1971 war under the Simla process.
• No combatant status. Spies and mercenaries are not entitled to prisoner of war status (Additional Protocol I, Articles 46 and 47), but remain protected by fundamental guarantees.

5. Grave Breaches, Occupation and Weapons

• Grave breaches. Wilful killing, torture or inhuman treatment, wilfully causing great suffering, extensive unjustified destruction of property, compelling prisoners to serve the enemy, denial of fair trial, unlawful deportation and taking of hostages; every state must search for alleged offenders and try or hand them over, whatever their nationality (Topic 34)
• Occupation. Territory is occupied when actually placed under the authority of the hostile army (Hague Regulations, Article 42); the occupant must restore and ensure public order and safety while respecting the laws in force (Article 43), and must not transfer its own civilians into the territory (Fourth Convention, Article 49(6))
• Weapons. Chemical and biological weapons are banned (Chemical Weapons Convention, 1993; Biological Weapons Convention, 1972), to which India is a party; India is party to the Convention on Certain Conventional Weapons, 1980, but not to the anti-personnel Mine Ban Convention, 1997 or the Convention on Cluster Munitions, 2008.
• ICRC. Visits prisoners and detainees, acts as a neutral intermediary, and promotes humanitarian law.

6. India: The Geneva Conventions Act, 1960

• Section 3. Any person, within or without India and whatever his nationality, who commits or attempts, abets or procures a grave breach is punishable with death or imprisonment for life where it involves the wilful killing of a protected person, and otherwise with imprisonment up to fourteen years.
• Section 4. An offence committed outside India may be dealt with as if committed at any place in India where the offender is found.
• Section 17. No court may take cognizance of an offence under the Act except on a complaint by the Government or an officer it authorises by notification.
• Emblem. The Act also prohibits misuse of the Red Cross and related emblems.
• Practice. In 2019, Pakistan released Indian Air Force pilot Abhinandan Varthaman within days of his capture, an event widely discussed in terms of the Third Convention.

7. Frequently Asked Questions

Has India ratified the Additional Protocols of 1977?

No. India is a party to the four Geneva Conventions of 1949, ratified in 1950 and implemented by the Geneva Conventions Act, 1960, but has not ratified Additional Protocols I or II.

What is the Martens Clause?

A provision first included in the Hague Convention of 1899 and restated in Additional Protocol I, under which situations not covered by treaty remain governed by custom, the principles of humanity and the dictates of public conscience, so that the absence of a specific rule does not mean that anything is permitted.

What is the difference between jus ad bellum and jus in bello?

Jus ad bellum governs whether a state may lawfully resort to force, under the UN Charter. Jus in bello, or humanitarian law, governs how hostilities are conducted, and applies equally to all parties whether or not their resort to force was lawful.

Can a court in India try a foreign national for a grave breach committed abroad?

Yes. Section 3 of the Geneva Conventions Act, 1960 applies to any person, within or without India, whatever his nationality, and section 4 allows trial where he is found, but section 17 requires a complaint by the Government or an authorised officer.

8. Related Topics

• Topic 21: Recognition of Insurgency and Belligerency. Non-international armed conflicts.
• Topic 50: Use of Force and Self-Defence. Jus ad bellum.
• Topic 54: International Criminal Law. War crimes.