This Article is written by Varsha Dubey of Banasthali Vidyapeeth
“ The fact that Abhinandan did not bend, and continued to be polite and respectful towards the Pakistani army officer shows the kind of Bravehearts and gentlemen our Forces are made up off “
Introduction –
In response to the Pulwama attack, which claimed the lives of more than 40 members of the Central Reserve Police Force (CRPF), India carried out an airstrike in POK on various Jaish-E-Mohammed training facilities and launch pads on February 26, 2019. This caused a group of Pakistani fighter jets to breach Indian airspace1. In response, the Indian Air Force used their MIG-21 bison and IAF Pilot Abhinandan Varthaman shot down one of Pakistan’s F-16s. Unfortunately, the intense dogfight in POK territory destroyed Abhinandan’s MIG 21 Bison. He was thus taken prisoner by the Pakistani Army.
After this incident many questions arose in the mind of the people regarding What the Geneva Convention is, What are the guidelines, What role this convention played in this matter?
To answer this let us first understand what is Geneva Convention and where it applied –
A group of international agreements known as the Geneva Conventions were made in Geneva between 1864 and 1949 with the aim of reducing the negative impacts of war on both troops and civilians. In 1977, two new protocols to the 1949 pact were accepted.
The Red Cross, whose founder Henri Dunant started international discussions that resulted in the Convention for the Amelioration of the Wounded in Time of War in 1864, was a key player in the formation of the Geneva Conventions. This agreement stipulated that all facilities for the care of sick and injured soldiers, as well as their staff, would be immune from capture and destruction, that all combatants would be treated fairly, that civilians who provided aid to the injured would be protected, and that the Red Cross emblem would be recognised as a means of identifying those who and what are covered by the agreement.
In cases of international armed conflict, if at least one party is a signatory to the conventions, the Geneva Conventions—the cornerstone of International Humanitarian Law (IHL), or the rules of war—apply. In this scenario, the Geneva Conventions I through IV of 1949 have been accepted by Pakistan and India in 1950 and 1951, respectively.
Belligerents were expected to treat prisoners of war humanely, provide information on them, and allow official visits to prison camps by officials of neutral states under the third Geneva Convention, the Convention Relating to the Treatment of Prisoners of War (1929).
These conventions cover four topics:
- The treatment of prisoners of war (GC (III))
- The condition of the wounded and sick in the armed forces in the field (GC (I))
- The condition of the wounded, sick and shipwrecked members of the armed forces at sea (GC (II)
- The protection of civilians during times of war (GC (IV)).
- The treatment of prisoners of war (GC (III))
The medical professionals and injured soldiers covered by this Convention who are not actively engaged in hostilities against a Party are protected. Without discrimination based on race, colour, sex, religion or belief, birth or income, etc., it ensures compassionate treatment. To that aim, Article 3 of the Convention forbids the use of torture, assaults on human dignity, and execution without a trial. It also guarantees the right to appropriate medical care and treatment.
- The condition of the wounded and sick in the armed forces in the field (GC (I))
This treaty, which was drafted as part of the 1949 Convention, established the term “Prisoner of War” and provided for the proper and humane treatment of such prisoners in accordance with the first Convention. POWs were specifically instructed to only provide their captors with their names, ranks, and serial numbers. The Convention prohibits the use of torture to compel information from prisoners of war.
- The condition of the wounded, sick and shipwrecked members of the armed forces at sea (GC (II)
This agreement gave shipwrecked soldiers and other naval forces the safeguards outlined in the first Convention, with additional protections granted to medical ships.
- The protection of civilians during times of war (GC (IV)).
Civilians are protected from cruel treatment and assault under this Convention in the same ways as ill and injured troops were protected under the first Convention. There were also more rules imposed on how civilians should be treated. Attacks on hospitals, ambulances, and other civilian targets are specifically forbidden. Additionally, it outlines the rights of saboteurs and prisoners of war (POWs). Finally, it talks about how occupiers should behave towards an occupied population.
Protocol I –
Further limitations on how “protected persons” are treated in accordance with the original Conventions were accepted by the signatory Nations, and definitions of terminology used in the Conventions were added. Finally, new guidelines for treating the dead, cultural artifacts, and potentially harmful targets (such dams and nuclear power plants) were developed.
Protocol II –
The basics of “humane treatment” were further defined in this Protocol. Additionally, the rights of people who were incarcerated were clearly listed, allowing defences for those accused of committing crimes during the war. It also identified additional civil population rights and protections.
Protocol III –
Adopted in 2005 to add another emblem, the “red crystal,” to the list of emblems used to identify neutral humanitarian aide workers.
- The United States has signed an ratified the four Conventions of 1949 and Protocol III of 2005, but has not ratified the two Protocols of 1977, though it has signed them.
- Disputes arising under the Conventions or the Protocols are settled by courts of the member nations (Article 49 of Convention I) or by international tribunals.
- The ICRC has a special role given by the Geneva Conventions: it handles, and is granted access to, the wounded, sick, and POWs
This implies that both states are subject to the rights and obligations outlined in these international treaties, which are almost generally signed and ratified.
Two new protocols to the 1949 accords that include both combatants and civilians were approved in 1977 after four years of Red Cross-sponsored discussions. Persons engaged in “self-determination” wars, which were now classified as international hostilities, were given protection under the Geneva and Hague Conventions by the first, known as Protocol I. In cases of suspected violations of the convention, fact-finding commissions might also be established thanks to the protocol. The second protocol, or Protocol II, expanded the 1949 accords’ exclusion of anyone embroiled in protracted civil wars from human rights safeguards. It expressly forbade slavery, torture, hostage-taking, collective punishment, acts of terrorism, and “outrages on the personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution, and any form of indecent assault.”
A wide range of protections are outlined in the third Geneva Convention for prisoners of war (or “POWs”). It outlines their legal rights and provides comprehensive instructions for their care and eventual discharge. Other people who are denied their freedom due to armed conflict are also protected by international humanitarian law (“IHL”).
In all situations, prisoners of war must be treated humanely. They are shielded from all forms of assault as well as harassment, slurs, and interest from the general population. IHL also outlines the minimal requirements for detention, including requirements for housing, food, clothes, hygiene, and medical attention.
In particular, Common Article 2 – an article that is present in all the agreements – provides guidance on the issue of the application of the Geneva agreements to a specific conflict. In accordance with this clause, the Convention “shall apply to all cases of declared war or to any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognised by one of them.” The Geneva Conventions would obviously be applicable given the current situation’s clear fit with this description.
Parties to Geneva Convention –
The Geneva Convention have been ratified by 196 states, including all UN member states both UN observers and the Holy See and the State of Palestine, as well as the Cook Island. The Protocols have been ratified by 174, 169, and 79 states respectively. In addition, Article 90 of Protocol I states that “The High Contracting Parties may at the time of signing, ratifying or acceding to the Protocol, or at any other subsequent time, declare that they recognize ipso facto and without special agreement, in relation to any other High Contracting Party accepting the same obligation, the competence of the [International Fact-Finding] Commission to enquire into allegations by such other Party, as authorized by this Article.” 76 states have made such a declaration.
Where do Geneva Conventions apply?
The Geneva Conventions became operative on October 21, 1950.
Ratification increased steadily throughout the years: in the 1950s, 74 States ratified the Conventions, followed by 48 States in the 1960s, 20 States in the 1970s, and another 20 States in the 1980s. Early in the 1990s, following the dissolution of the Soviet Union, Czechoslovakia, and the former Yugoslavia, 26 countries ratified the Conventions.
The number of States Parties has increased to 194 as a result of seven new ratifications since the year 2000, making the Geneva Conventions applicable worldwide.
Can he be considered a Prisoner of War?
Article 4 of the Third Geneva Convention relating to the Treatment of Prisoners of War [GC (III)] defines a prisoner of war. In accordance with Article 4(A)(1), prisoners of war
“…persons belonging to one of the following categories who have fallen under enemy control: (1) Members of the armed forces of a Party to the Conflict as well as (2) Members of the militias or volunteer corps forming part of such armed forces.”
Being an officer of the Indian Air Force and a member of the armed forces of a Party to the Conflict, Wing Commander Varthaman fits the criteria of a prisoner of war. He must therefore be given all legal safeguards accessible to him.
The scope of application of the convention is then described in Article 5 of GC III, i.e.
From the moment they come under enemy control until their ultimate release and repatriation, “shall apply to the persons referred to in Article 4.”
The issue of release and repatriation follows from this. In accordance with Article 118 GC (III), “Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities.”
A plan for the prisoner’s repatriation must be put in place “without delay” even if there are no such provisions in any agreement for the cessation of hostilities. The prisoner must be notified of these arrangements. There is also a provision in Article 110 for the return of an ill or injured prisoner of war to a neutral third state.
However, the justification for these rules is founded on the idea that repatriation is an unalienable right that needs to be respected and done so quickly.
What are his legal rights under the Geneva Convention?
Once both sides’ issues are resolved, POWs must be let free. The Geneva Conventions, which were established in 1929 and revised in 1949 during World War II, provide the guidelines that UN members must abide by. The Geneva Conventions number four. Who may be designated as a POW and how the POW shall be treated are both specifically outlined in the Third Geneva Convention.
The GC (III) includes specific guidelines for the care and protection of prisoners of war. Part II (Articles 12–16) lays forth the fundamental guidelines for the care of inmates.
According to Article 13 of the third Geneva Convention, POWs must always be treated humanely. Any illegal action or inaction on the part of the country holding the POW that results in death or gravely jeopardizes the POW’s health is forbidden. Additionally, this will be a serious violation of the Convention.
Retaliation against prisoners of war is forbidden. In addition, there must be access to medical care (Article 15) and equitable treatment for everyone without discrimination based on race, nationality, religion, or other factors (Article 16).
Article 17 outlines the information that prisoners are required to reveal at the beginning of captivity when they are allowed to be interrogated in a language they understand: “only his surname, first names and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent information.”
The POWs cannot be subjected to physical harm or to any type of medical or scientific research that is not approved by the hospital, clinic, or medical facility that is treating the POW in issue. Additionally, it forbids intimidating, upsetting, or subjecting POWs to the public. “India also strongly objected to Pakistan’s vulgar display of injured Indian Air Force personnel in violation of all standards of international humanitarian law and the Geneva Convention,” the Indian administration stated. There was no doubt that Pakistan would be wise to take precautions to protect the Indian defence men under its custody. India anticipates his swift and safe return as well.
The POW shall not be exposed, offended, or subjected to any unfriendly or unfavourable treatment if he or she chooses not to respond to any inquiry given by the opposing side. POW must be given for medical care if injured. Additionally, it specifies that the POW shall keep all personal items with them, with the exception of military equipment and paperwork. The POW must constantly carry identification documents with them. POWs must be relocated far from the scene of their capture, and the evacuation must be handled humanely.
Case concerning the trial of Pakistani Prisoners of War –
Pakistan v. India, 1973
After the Bangladesh Liberation War, Pakistan and India began litigating this dispute. India initially reacted indifferently to the Eastern Pakistan rebellion. But after the uprisings in Eastern Pakistan, which is now Bangladesh, a large number of East Pakistani refugees—an estimated 10 million—came to India. As the atrocities like Operation Searchlight began, India tried to support Bangladesh diplomatically and economically. Bangladesh is now an extension of East Pakistan. India has brought up this situation at the UN and with other countries to stop the genocide taking place in East Pakistan.
Lt. Gen. Jagjit Singh of India and General A.A.K. Niazi of Pakistan signed “The Instrument of Surrender” on December 16, which signifies that Pakistani forces in East Pakistan have surrendered to Indian military forces together with 90,000 POWs. General Manekshaw of India gave the Pakistani POWs his word that they would be handled in accordance with the Geneva Convention. Additionally, Lt. Gen. Jagjit Singh Aurora reaffirmed his commitment to treating the personnel who surrender to Indian forces with the respect and dignity to which they are entitled under the Geneva Convention, to which India is a signatory.
In November 1972, Pakistan concurrently released 10,000 Bangladeshi women and children as Bangladesh and India planned to repatriate about 6000 family members of prisoners of war. However, Bangladesh informed India that it would not free the 195 POWs who had been charged with war crimes.
Following the return of Bengalis who had become lost and Pakistani POWs who had been incarcerated in either country, respectively, India and Pakistan signed the Delhi Accord on August 28, 1973. Later, Mr. S.S. Pal and Mr. Serajive Haque were appointed by the government of Bangladesh to serve as the chief government prosecutors for the war crimes tribunals that would try Pakistani POWs for the genocide that had taken place in Bangladesh. The Bangladeshi government announced its choice to prosecute the Pakistani POWs for crimes against humanity on April 17, 1973.
Nuremberg Trial ( 20 November, 1945 )
One of the most significant cases in the development of international law is this one. The Nuremberg Tribunal was founded in an effort to hold Germany’s war criminals accountable for atrocities they committed against the country’s Jewish population.
In the case, two crucial principles were established:-
1.)Anyone who commits a crime that is subject to international law’s punishment will be considered guilty.
2.) A person is nonetheless accountable for the crime they committed even if they did it in accordance with higher authority’s directives.
The second Nuremberg Trials premise is crucial and has been applied several times.
When India released Pakistani Prisoners of War –
On August 2, 1972 – eight months after the 13-day India-Pakistan war ended on December 16, 1971 – the two countries signed the Shimla Agreement under which India agreed to release all the 93,000 Pakistani prisoners of war (POW) its army had taken during the course of the war.
Why PM Indira Gandhi decided to do so –
Apart from dealing with the enormous cost of the war, India also had to bear the financial burden of looking after the 10 million refugees who had crossed over to India from East Pakistan as they fled the Pakistani army’s horrendous atrocities, better known as the Bangladesh Genocide of 1971.
The other big challenge, which was quite complex diplomatically since it involved national security and foreign policy issues, in addition to requiring delicate handling, was the unforeseen and un-budgeted responsibility of having to look after the 93,000 Pakistani soldiers taken as POWs. India wanted to keep the Pakistani soldiers in conditions of comfort that went over and above the provisions listed in the Geneva Convention.
United Nation (UN) take on Geneva Convention –
The Additional Protocols and other international humanitarian law accords have not yet attained the same level of recognition as the 1949 Geneva Conventions, which have been ratified by all United Nations Members. Many of the laws outlined in these treaties, however, have been regarded as a component of customary law and as such, regardless of whether States have ratified the treaties themselves, are binding on all States (and other parties to the conflict). The protection provided in non-international armed conflicts, which are only governed by Common Article 3 of the Four Geneva Conventions and Additional Protocol II, is also expanded by the fact that many rules of customary international law apply in both international and non-international armed conflict.
Conclusion –
Wing Commander Abhinandan Varthaman of the Indian Air Force is seen being freed by Pakistani officials on the Pakistani side of the Wagah border on March 1, 2019.
The international community praised Pakistan’s government for making the choice as a sign of peace.
“Vo Veerta Ka Samrat Ban Lauta Hai,
Sahas Apar kar lauta hai,
Us Naapak Dharti par bhi vo,
Jai Bharat Ma ki Jay- Jaykaar kar lauta hai . “
References –
. https://www.britannica.com/event/Geneva-Conventions
. https://www.ohchr.org/en/hrbodies/hrc/home
. https://www.icj-cij.org/case/60
. https://www.nationalww2museum.org/war/topics/nuremberg-trials
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