Legal Narrative
Abstract
Internal armed conflicts are one of the most complex situations in modern International Humanitarian Law (IHL). Such conflicts require balancing human dignity and the protection of civilians with the requirements of State sovereignty, national security and public order. In this context, Common Article 3 of the 1949 Geneva Conventions provides minimum humanitarian protection, while the 1977 Additional Protocol II (AP II) further expands the protections of civilians and other protected persons in Non-International Armed Conflicts (NIACs). India enacted the Geneva Conventions Act, 1960 to implement the Geneva Conventions and ratified Protocols I and II in 1980. This article analyses the relationship of IHL with the Indian constitutional framework, particularly Articles 14, 21, 51(c) and 253, and judicial perspectives. The article concludes that national security and humanitarian protection are not contradictory but complementary obligations within the rule of law.
Keywords
International Humanitarian Law; Common Article 3; Additional Protocol II; Non-International Armed Conflict (NIAC); Geneva Conventions Act, 1960; Constitutional Rights; Humanitarian Protection.
1. Introduction
The moral boundary of war begins where human beings are considered protected human beings, not merely “enemies.” The vast majority of modern conflicts occur not between States, but between States and organised non-State armed groups. The question of IHL in such NIACs is particularly complex, as States must protect national security, public order and territorial integrity, while also affording humanitarian protection to individuals and civilians involved in the conflict. In the Indian context, this question assumes particular significance against the backdrop of insurgency, armed rebellion, and protracted internal security operations.
The central question of this article is how Common Article 3 and Additional Protocol II apply to internal armed conflicts in India and to what extent the Indian constitutional and legal system gives effect to their humanitarian objectives. The central argument is that IHL and domestic constitutional law are not competing but complementary frameworks. IHL sets minimum humanitarian limits during conflicts, while the Constitution provides comprehensive domestic protections of life, dignity, equality and the rule of law.
2. Common Article 3: Minimum Humanitarian Threshold for Internal Conflict
Common Article 3 of the four Geneva Conventions of 1949 is the fundamental treaty-based basis of IHL for NIAC. It demands the humane treatment of persons not actively participating in hostilities, including those hors de combat. Murder, mutilation, cruel treatment, torture, hostage-taking and humiliating and degrading treatment are prohibited. Punishments and executions without judicial guarantees are also prohibited. The collection and care of the wounded and sick is also an integral part of this protection.
An important feature of Common Article 3 is that its application does not confer legitimate political or legal status on any party to the conflict. Article 3 itself makes it clear that its application does not affect the legal status of the parties to the conflict. Therefore, compliance with Article 3 by a State does not constitute recognition of a rebel group as a “belligerent” or legitimate political entity. This distinction is important for States like India: while maintaining its sovereignty and law-and-order responsibilities, the State is not exempt from minimum humanitarian standards.
However, it would not be appropriate to consider every violent internal situation a NIAC. IHL requires determining the threshold for armed conflict. Internal disturbances, riots, or isolated and sporadic violence cannot automatically be conflated with the armed-conflict framework of Common Article 3. This classification is of practical importance because it determines which IHL rules will apply.
3. Additional Protocol II and Extended Protection in NIAC
The 1977 Additional Protocol II (AP II) develops and supplements Common Article 3. Its Article 1 applies to NIACs between the armed forces of a State and dissident armed forces or other organised armed groups when the other party is under responsible command and exercises control over a portion of territory that makes sustained and concerted military operations and the implementation of the Protocol possible. Thus, the threshold of AP II is narrower than that of Common Article 3. Internal disturbances, riots and isolated and sporadic violence are clear exceptions.
AP II expands the protection of the civilian population. Article 13 provides general protection to civilians against dangers arising from military operations and prohibits civilians from being made the object of attack. Article 4 protects humane treatment and dignity and provides special protection for children. Article 7 deals with protection of wounded, sick and shipwrecked persons. Thus, AP II does not merely raise the question of “how to fight,” but also clarifies “whom to protect” and what is the minimum limit of human dignity.
After acceding to the Geneva Conventions of 1949, India enacted the Geneva Conventions Act, 1960. Furthermore, India ratified Additional Protocols I and II on 18 November 1980. Thus AP II is not only a comparative international standard for India, but also a treaty commitment. However, treaty obligation and domestic enforceability cannot be considered the same thing. In the Indian constitutional structure, the role of Parliament is crucial for giving effect to international treaties in domestic law. Article 51(c) of the Constitution directs the State to foster respect for international law and treaty obligations, while Article 253 empowers Parliament to legislate to give effect to international agreements.
4. Interrelationship of the Indian Constitutional System and IHL
Humanitarian issues related to internal armed conflicts in India are not solely determined by IHL. Article 14 establishes the equality principle, Article 21 protects life and personal liberty, and Article 22 provides procedural safeguards regarding arrest and detention. The broader effect of these provisions is that the State’s coercive powers cannot go beyond constitutional accountability.
Nandini Sundar v. State of Chhattisgarh holds particular significance in this context. In this case, concerning Salwa Judum and Special Police Officers, the Supreme Court did not treat the State’s security concerns as a basis for unlimited State power against the constitutional rights of citizens. The Court emphasised dignity, fraternity and constitutional governance, along with Articles 14 and 21.
Although the decision was not primarily based on IHL-treaty adjudication, its constitutional reasoning demonstrates that “security” and “rights” cannot be viewed as zero-sum alternatives in internal security operations.
Ktaer Abbas Habib Al Qutaifi v. Union of India also provides a useful perspective on the relationship between international humanitarian norms and domestic constitutional protections. The Gujarat High Court considered the connection between international humanitarian principles and Article 21 and underlined that humanitarian protection and human dignity are not entirely separate from the Indian constitutional framework. This approach strengthens the possibility of viewing IHL within the broader human-rights context of Indian constitutional interpretation.
However, it is important to clearly understand the scope of the Geneva Conventions Act, 1960. Its primary statutory purpose is to provide penal sanctions and related legal mechanisms for grave breaches of the 1949 Conventions. This does not mean that every provision of Common Article 3 or AP II automatically becomes a domestic statutory cause of action. This is why IHL obligations must be read in conjunction with the Constitution, existing criminal law, judicial remedies, and institutional accountability.
5. Key Legal Challenges and Implementation in Internal Armed Conflict
The first challenge is conflict classification. Treating every insurgency, riot or prolonged violent protest as a NIAC would unnecessarily broaden the IHL threshold; on the other hand, simply calling a genuine NIAC a “law-and-order problem” could undermine humanitarian protection. Therefore, a factual assessment based on objective factors such as organisation, intensity and sustained military operations is essential.
The second challenge is compliance by both State and non-State actors. Common Article 3 and customary IHL are not limited to the conduct of governmental forces; organised armed groups are also subject to humanitarian restraints. The fundamental purpose of Common Article 3 is to ensure minimum humane treatment for each party to a conflict. Therefore, violence by an armed group against civilians, detainees or wounded persons cannot be justified in the name of political objectives.
The third challenge is domestic implementation. India has a multi-layered system of Constitution, criminal law, armed-forces legislation, human-rights institutions and judicial review, but IHL-specific training and operational guidance could be more institutionalised. Regular IHL training for armed forces and police on rules of engagement, detention procedures, treatment of wounded persons, civilian protection, and evidence preservation can make compliance more practical. Independent oversight by institutions such as the National Human Rights Commission and the judiciary can also strengthen accountability.
The fourth challenge is contemporary technology. Drones, surveillance systems, digital intelligence and precision weapons are becoming increasingly useful in internal operations. With increasing technological capabilities, an operational interpretation of humanitarian principles such as distinction, proportionality, and precautions in attack is also essential. Technology does not eliminate legal responsibility; on the contrary, the use of more sophisticated technology makes questions of decision-making and accountability more important.
Another important aspect is that AP II itself does not abolish State sovereignty. Article 3 of the Protocol clarifies that it cannot be used to affect a State’s sovereignty or legitimate responsibility to maintain law and order. Therefore, it would be wrong to consider IHL an alternative to counter-insurgency; its function is not to replace security policy, but to set its humanitarian and legal limits.
6. Conclusion and Suggestions
India’s experience shows that treating national security and humanitarian protection in internal armed conflict as contradictory concepts is a legally incomplete approach. Common Article 3 provides a minimum humanitarian floor; AP II, where its treaty conditions are met, provides more comprehensive protection for civilians and other protected persons. The Indian Constitution connects these international commitments with domestic principles of dignity, equality, life and liberty, and the rule of law.
Four key steps forward would be useful. First, develop clear institutional guidelines on conflict classification and IHL applicability. Second, strengthen regular IHL training and operational manuals for armed forces and police. Third, ensure independent, timely and effective investigation. Fourth, clearly integrate humanitarian principles into emerging technologies and counter-insurgency doctrine.
Ultimately, the true effectiveness of IHL should be measured not by the number of treaties, but by their compliance in situations where State authority and armed violence confront each other. The challenge for India is not to choose between national security and humanitarian law; the real legal challenge is to ensure that security operations themselves are conducted within the humanitarian limits set by the Constitution and IHL.
Footnotes
1. International Committee of the Red Cross, Non-International Armed Conflict, ICRC Casebook, explaining the distinction between international and non-international armed conflicts and the continuing relevance of Common Article 3 and customary IHL.
2. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field art. 3, Aug. 12, 1949, 75 U.N.T.S. 31; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea art. 3, Aug. 12, 1949, 75 U.N.T.S. 85; Geneva Convention Relative to the Treatment of Prisoners of War art. 3, Aug. 12, 1949, 75 U.N.T.S. 135; Geneva Convention Relative to the Protection of Civilian Persons in Time of War art. 3, Aug. 12, 1949, 75 U.N.T.S. 287.
3. Geneva Convention Relative to the Protection of Civilian Persons in Time of War art. 3, Aug. 12, 1949, 75 U.N.T.S. 287.
4. Int’l Comm. of the Red Cross, IHL Treaties: Geneva Convention IV — Article 3, explaining that Common Article 3 concerns armed conflicts not of an international character and does not encompass every isolated act of violence.
5. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) art. 1, June 8, 1977, 1125 U.N.T.S. 609.
6. Id. arts. 4, 7, 13–14.
7. Int’l Comm. of the Red Cross, IHL Treaties, States Parties and Commentaries — India, regarding India’s ratification of Additional Protocols I and II on 18 November 1980; Geneva Conventions Act, 1960, No. 6 of 1960, India Code.
8. INDIA CONST. arts. 51(c), 253.
9. INDIA CONST. arts. 14, 21–22.
10. Nandini Sundar v. State of Chhattisgarh, (2011) 7 SCC 547 (India). See also Supreme Court of India, Nandini Sundar v. State of Chhattisgarh, W.P. (C) No. 250 of 2007, order dated 15 May 2023, noting the continuing proceedings arising from the 2011 judgment.
11. Ktaer Abbas Habib Al Qutaifi v. Union of India, 1999 Cri LJ 919 (Guj. HC 1998).
12. Geneva Conventions Act, 1960, No. 6 of 1960, ss. 3–6, India Code.
13. Protocol II, supra note 5, art. 1; Int’l Comm. of the Red Cross, Non-International Armed Conflict, ICRC Casebook.
14. Geneva Convention III, supra note 2, art. 3; Int’l Comm. of the Red Cross, Customary IHL, Rule 87 (Humane Treatment).
15. Protocol II, supra note 5, art. 3.
