Nishant Sirohi

| @nishantssirohi | February 28,2019

ON February 27, 2019, the Government of India confirmed, the claim of the Pakistani Government, that one Indian Air force (IAF) pilot was in custody of Pakistan Army after the IAF’s MiG 21 bison aircraft had been shot down in an “aerial engagement” by the Pakistan Air Force (PAF). The Ministry of External Affairs spokesperson Raveesh Kumar stated that the engagement took place when the Indian Air Force responded to an attempt by PAF to target the Indian military installations in the early hours of the day.

India has cited the Geneva Conventions while asking for the immediate release of Wing Commander ​​Abhinandan. India objected to the “vulgar display of injured personnel of the Indian Air Force in violation of all norms of international humanitarian law and the Geneva Convention”.

The Geneva Conventions

 

The Geneva Conventions and its Additional Protocols form the core of international humanitarian law, that apply in times of armed conflict and seek to protect people who are no longer part of the hostilities; including the sick and wounded personnel of armed forces on ground; wounded, sick, and shipwrecked members of the navies at sea and civilians.

India and Pakistan are both parties to the Geneva Conventions and are bound to abide by the rules of war and treatment of prisoners of war laid down in the conventions. There are four Geneva Conventions and two Additional Protocols. The specific convention relevant to the captured pilot is the Geneva Convention Relative to the Treatment of Prisoners of War, 1949 citied, as third Geneva Convention.

 

The Third Geneva Convention applies to prisoners of war

 

The Geneva Convention for the protection of prisoners of war was originally laid down in 1929 and replaced in 1949 in the aftermath of World War II. The Convention establishes the principle that prisoners of war shall be released and repatriated without delay after the cessation of active hostilities. The Convention has five annexes containing various model regulations.

Article 4 of the third Geneva Convention defined ‘prisoners of war’ as any member of armed forces of one country, who have fallen into the power of the enemy during an armed conflict. However, a person can be designated as a prisoner of war only in an international armed conflict.

 

Is this armed conflict an ‘International Armed Conflict’?

 

The International Committee of the Red Cross (ICRC), in the Commentary of third Geneva Convention (see at the end of the article), has said that any difference arising between two States and leading to the intervention of members of the armed forces is an “international armed conflict” within the meaning of Article 2.

Article 2 (application of Convention) of the Geneva Conventions of 1949 reads as follow:

“In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the Contracting Parties, even if the state of war is not recognised by one of them”.

The International Criminal Tribunal for the former Yugoslavia also proposed a general definition of international armed conflict. In The Prosecutor v. Dusko Tadic (IT-94-1-A, 2 Oct. 1995), the Tribunal stated that “an armed conflict exists whenever there is a resort to armed force between States”.

Further, ICRC in an Opinion Paper in March 2008, asserted that an international armed conflict exists whenever there is “resort to armed force between two or more States”. The ICRC argued that an international armed conflict occurs when one or more States have recourse to armed force against another State, regardless of the reasons or the intensity of this confrontation.

Therefore, under international law, the formal declaration of war is not relevant in order to categorise the armed conflict as international armed conflict and for the application of international humanitarian law. It is also important to note, in the words of Prof H P Gasser, that “any use of force by one State against the territory of another, trigger the applicability of the Geneva Conventions between the two States […]. It is also of no concern whether or not the party attacked resists”.

In the current case, since India claimed that the “aerial engagement” took place between the air forces of India and Pakistan, after the former targeted military installations of India, it suffices to say that this amounts to an armed conflict. The ICRC commentary supports this argument that “it makes no difference how long the conflict lasts, how much slaughter takes place, or how numerous are the participating forces; it suffices for the armed forces of one State to have captured adversaries falling within the scope of Article 4”. Moreover, even if there has been no fighting, the fact that persons covered by the Convention are detained is sufficient for its application.

 

Rights of a Prisoner of War

 

The third Geneva Convention sets out a number of rules for the protection of prisoners of war. Article 13 provides that prisoners of war must be treated humanely at all times, it states as “at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity”.

Under the rules of the Convention, prisoners of war must be given adequate food (Art. 26), clothing (Art. 28), and medical treatment (Art. 30) and equal treatment without discrimination (Art. 16).

Article 17 requires that the captured armed force member answer the questions regarding his name and rank, date of birth, and armed force serial number. Prisoners of war cannot be tried or convicted for engaging in hostilities, though they can be prosecuted for any other criminal activity during their captivity. While a captured POW is subject to the laws of the detaining power, in this case, Pakistan, he/she is not liable for any offence for which member of forces of the detaining power is not liable (Article 82). Pakistan can try the captured individual under its military court – impartially and after providing legal aid (Art. 105) but he is still protected under the Geneva Convention. When the hostilities between the countries end, all prisoners of war have to be released and repatriated without delay under Articles 118 and 119.

Even if Pakistan argues that Wing Commander Abhinandan is not a POW, in the literal senses, Pakistan has to accord fundamental guarantees to him and treat him humanely as per the Article 75 Additional Protocol 1. Even though Pakistan is not a party to Additional Protocol 1, protection provided under Article 75 is central to customary international law and must be honoured.

 

Pakistan’s violation of the Geneva Convention

 

The Geneva Convention requires humane treatment for all persons in enemy hands, without any adverse distinction. It specifically prohibits murder, mutilation, torture, cruel, humiliating and degrading treatment, the taking of hostages and unfair trial. The Government of India objected to the injured personnel’s ‘vulgar display’ in violation of the Geneva Conventions.

Pakistan violated Article 13 of the Geneva Convention which forbids exposing the captured pilot to ‘public curiosity’. The Pakistani Army also failed to protect the captured pilot from acts of violence by the mob of locals as shown in a video that surfaced in the media.

 

Safe release of Wing Commander Abhinandan

 

Pakistan as the party to the Geneva Convention is bound to the international humanitarian law and obliged to return the captured Wing Commander Abhinandan, as soon as the hostilities between the countries are over. Pakistan must respect human rights against torture. The government should now demand respect for his rights and his immediate handover to India.

Prisoners of war may in no circumstances renounce in part or in entirety the rights secured to them by the Geneva Convention under Article 7.

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