Additional Protocol I to the Geneva Conventions was adopted in 1977 to ‘remedy shortcomings‘ in the original conventions of 1949. It contains a more detailed set of standards in all areas of international armed conflict, and expands the definition of ‘international armed conflict’ to include wars of national liberation (Art. 1.4.). (Non-international armed conflicts are governed by Additional Protocol II.) It has now been adopted by 167 states.
Additional Protocol I is often cited in reference to the Arab-Israeli conflict. For example, it is said that Israel’s recent actions in Gaza violated the principle of distinction ‘enshrined in Articles 57 and 58 of Additional Protocol I’ and the principle of proportionality ‘found in Article 51 of AP I’. Superficially at least it is the relevant document, because lacking more accurate terminology the Israel-Palestine conflict is generally viewed as either a ‘war of national liberation’ or a continuation of the broader Arab-Israeli conflict and hence an international one.
However, Israel, along with the US, Iran, Pakistan, India, the Philippines, Sri Lanka and a number of other states, has not adopted Additional Protocol I, and its status under customary international law is therefore unclear. (The International Red Cross has published an exhaustive list of 161 rules, which it considers to summarize customary international humanitarian law, and it contains some of the standards set out in Additional Protocol I. However, this cannot be viewed as authoritative: the ICRC is not the keeper or guardian of international humanitarian law, much as it might wish to present itself as such.) Why, if essentially all states in the world have now ratified the four Geneva Conventions, is there an unwillingness on the part of some to adopt Additional Protocol I?
It is surely no coincidence that many of the states which have not ratified the protocol are confronted by genuine threat, or actual existence, of an international armed conflict (whether in the traditional sense or in the guise of a ‘war of national liberation’). The Philippines has for years struggled with Islamist separatists in its South; the Sri Lankan civil war only now appears to be coming to an end after decades of strife; India faces the prospect of conflict on numerous fronts both domestic and international; and the threat of war has loomed large over Israel since its very inception. (It is debatable whether some of these conflicts or threats of conflicts constitute wars of national liberation and thus international armed conflict; the fact that the issue is debatable, however, is enough to muddy the waters. Certainly, belligerent groups in Sri Lanka and the Philippines believe themselves to be fighting in that context.) While not all non-ratifiers are faced with such circumstances, and not all states threatened by the prospect of international armed conflict have not ratified the protocol, in general terms there is a definite correlation.
It would be grossly dismissive and reductionist to tar the non-ratifying states with the brush of lack of respect for civilian life or to group them together in an axis of evil: they range in nature from theocratic dictatorships (Iran), to ‘imperfect’ democracies (Indonesia, Singapore, Sri Lanka, Morocco), to parliamentary republics (the US, Israel, India, the Philippines). And the reasons for non-ratification cannot be a uniform disregard for IHL or an unwillingness to protect human life, given that all those states have ratified the four original Geneva Conventions. Rather, it must simply the case that these states do not wish to expose themselves to a stricter and more elaborate set of rules that will curtail their capacity to fight a war: i.e., they believe adherence to Additional Protocol I would make the successful execution of military action difficult or impossible.
Whether or not these states are correct in that belief is an issue for another blog entry. But that so many states who face conflict (and in the inclusion in their number of particularly influential countries such as the US and India) have not ratified the protocol does not bode well for its stated aim of ‘entitling civilians to better protection from the effects of war’. It is one thing for states such as Norway, Iceland and Paraguay to have shown willingness to accede; where there is no threat of war there is a luxury in demonstrating respect for strict standards of war-making. It would be quite another thing for Israel or Sri Lanka, where warfare is active and ongoing and a genuine danger to the very existence of the state, to do the same. While this hardly makes the additional protocol a dead letter (both Koreas are adopters, for example), one wonders whether it can have great value beyond being merely illustrative of opinio juris, given that its standards will not apply in many of the regions where they are supposedly most needed – the issue of customary law notwithstanding.