Why India has not signed the Additional Protocols to the Geneva Conventions?

*Vaibhavi Patel

INTRODUCTION

The Geneva Convention was formulated in the backdrop of World War II in order to lay down the law of war and ensure humane treatment to wounded and sick in armed forces, prisoners of war, and civilians. India became a signatory to the Geneva Convention but refused to sign the Additional Protocols, which expanded the scope of the Conventions to arenas of International Armed Conflict and Non-International Armed Conflict.

In 2019, questions were posed in the Lok Sabha regarding steps taken to ratify the Additional Protocols I and II by India. It therefore becomes pertinent to analyse the plausible reasons which India has so far taken refuge of for justifying not signing the treaties.

RESPONSE IN THE DIPLOMATIC CONFERENCE

India participated in the deliberations of the Conference held in Geneva and actively contributed towards developing the provisions of the Additional Protocol I. The Indian delegate had maintained that it was a happy occasion that the Protocol I had been adopted by consensus. He further stated that in the age of political and social awakening, all human beings had the right to be treated humanely, which applied to armed conflicts whether international or national. Being an advocate of Protocol I, India stated that it was logical and lawful that each state should bind itself to respect certain principles through a treaty or convention vis-à-vis another State or States, and that was what had been done through Geneva Conventions and Additional Protocol I.

However, the only drawback that India could find within the Additional Protocol I was that of establishment of an International Committee under Article 86bis of the Draft Additional Protocol I. The delegate was not convinced that the establishment of this Committee would be conducive towards achieving the objective of prohibiting use of certain conventional weapons of an indiscriminate nature primarily because the Committee, the function of which is to investigate breaches of the treaty, does not command unanimous support. India also believed that the Protocol II impinges the sovereignty of States and therefore abstained from voting.

The question that must be addressed is whether this sole reason was so grave that India, although appreciated the Protocol I, refused to ratify it. Article 90 of the present Additional Protocol I, which provides for a Fact-Finding Commission and lays downs its powers, resonates Article 86bis of the Draft Protocol. It is important to note that the Commentary of 1987 mentions that Article 90 contains an ‘optional clause’ on recognition of compulsory competence for States, which they can opt for at the time of ratifying it or at any subsequent time. This formulation is named as a compromise between two positions, one of which insisted upon a system of compulsory enquiry, while the other perceived it as an encroachment of the sovereignty of States. Hence, those States belonging to the latter position like India had no reason to not ratify the Protocol I for the sole reason of the existence of the present provision. There appears to be no concrete response to this which India has been able to construct, so far. Furthermore, by considering that India was keenly involved in developing the Additional Protocol I, it only seems unreasonable that it would not ratify the Protocol I simply because of the inclusion of an ‘optional provision’ in the treaty.

With regard to the Additional Protocol II, the Indian delegate maintained an unchanged position since the beginning of its discussion. The delegation had suggested at the very first session that a Declaration be adopted listing the principles to which all the States could subscribe without any reservations, however this suggestion was not taken up and the drafting of the Protocol II was initiated. He recognized the situation of internal Armed Conflicts as a law and order problem which were within the exclusive domestic jurisdiction of a State. He marked that the Common Article 3 of the Geneva Conventions was designed to take care of victims of colonial and imperialist powers, however the political situation has changed since then and was no longer applicable to the present circumstances since wars of liberation were now treated as international in nature, as had been affirmed by Article 1 of Protocol I. This reason, the delegate opined, rendered the Protocol II pointless since it was based on Common Article 3. He further explained that there had been instances where criminals had tried to justify their violent and cruel acts and he feared that such criminals would be given different treatment because of the Protocol II. India was hence against internationalization of any internal situation through an international instrument but nevertheless decided to abstain from the vote rather than voting against the Protocol II, owing to the efforts made by a number of representatives at the Conference.

This explanation by the delegate can be deconstructed to mean two things. First, that there is no necessity for India to ratify Protocol II, and second, that Protocol II could prove to be more harmful than beneficial for the country. Although India has granted in its Constitution fundamental rights to each of its citizens, ratifying Protocol II would only reiterate the principles already enshrined in the Constitution and would also expand the scope of protection for individuals in armed conflicts. Furthermore, Protocol II would not prove to be detrimental to the country since its provisions do not extend its protection beyond humane treatment to any armed group. Therefore, India’s reason to not ratify the treaty appears unjustified.

RESPONSE IN THE INDIAN PARLIAMENT

When faced with the question of not signing the Additional Protocols even after more than four decades of its coming into force, the answer provided by the then External Affairs Minister in the National Parliament was that no step had been taken to ratify the same, and further that it would not ratify it with reservations since there is no provision in the Additional Protocols for the same.

The reply that there is no provision in the Additional Protocols is factually true. Nonetheless, the Protocols do not expressly bar reservations to the same. According to Article 19 of the Vienna Convention on the Law of Treaties, India can formulate reservations to the treaties unless they are incompatible with the objective and purpose of the treaty [Article 19 (c)]. This is notwithstanding the presence of a provision pertaining to the same. Since the Vienna Convention is a formulation of Customary International Law, India shall obey it.

THE PAKISTAN CONSIDERATION

India and Pakistan have been involved in conflicts with each other right since their independence, which makes the acts of Pakistan such as signing treaties to regulate war activities the most crucial for India.

It is important to note that India signed the Geneva Conventions four months post Pakistan signed it. This is to say that only after India gained assurance of Pakistan’s policy did it find it apt to sign the treaty. Although not officially communicated by India, Pakistan might be one of the reasons behind India not signing the Additional Protocols, since India involves itself in acts condemned by the Additional Protocol I as a response to such acts committed by Pakistan.

One such recent instance was when it beheaded Pakistani soldiers as a response to Pakistan’s alleged mutilation and beheading of Indian soldiers. India would fear not being able to retaliate to such acts unless Pakistan signs the treaty before India does. In midst of nebulous reasons for not signing the Additional Protocols, the present reason seems the most pressing.

CONCLUSION

While India is taking no action to sign the Additional Protocols, countries like Russia have withdrawn from the Additional Protocol I citing the same reason as India did for not signing it, although there is a contrary belief that the revocation is effected from its role in Syria.

Each country might have a different opinion of whether to sign the Additional Protocols or not, but recording the reason for the same is the best way to remove speculations on the motive behind the move. Regardless, signing a treaty which binds States to act in a humane manner will always be considered as a step forward.

Vaibhavi Patel is a 2nd Year Law Student at Gujarat National Law University, Gandhinagar.

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