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Monday, January 25, 2021

Explained: How a Prisoner of War must be treated

India has cited the Geneva Conventions while demanding the release of Wing Commander Abhinandan who is in Pak Army custody. What do the Geneva Conventions say about the rights of prisoners of war?

Written by Nirupama Subramanian | Mumbai | Updated: February 28, 2019 10:57:00 am
india air strikes, pakistan air strikes, balakot, indian air force, abhinandan, commander abhinandan, geneva convention, what is geneva convention, Pakistan army, indian army, india air force, indian express The provisions of the conventions apply in peacetime situations, in declared wars, and in conflicts that are not recognised as war by one or more of the parties. (Wikimedia Commons)

India has demanded the immediate return of Indian Air Force pilot Wing Commander Abhinandan Varthaman, captured by Pakistan after his Mi-21 fighter aircraft was shot down in Pakistan-occupied Kashmir during a dogfight with Pakistani fighter jets on Wednesday. India has also lashed out at the “vulgar display of an injured personnel of the Indian Air Force in violation of all norms of international humanitarian law and the Geneva Convention”. A look at the provisions of the Geneva Conventions:

What are the Geneva Conventions?

The 1949 Geneva Conventions are a set of international treaties that ensure that warring parties conduct themselves in a humane way with non-combatants such as civilians and medical personnel, as well as with combatants no longer actively engaged in fighting, such as prisoners of war, and wounded or sick soldiers. All countries are signatories to the Geneva Conventions. There are four conventions, with three protocols added on since 1949.

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Does the captured pilot count as a prisoner of war?

The provisions of the conventions apply in peacetime situations, in declared wars, and in conflicts that are not recognised as war by one or more of the parties. Even though India and Pakistan have been careful not to use the ‘w’ word for the operations each has conducted on the other’s territory over two successive days — India has said its airstrikes were a “non-military” intelligence-led operation — both sides are bound by the Geneva Conventions. This means the IAF officer is a prisoner of war, and his treatment has to be in accordance with the provisions for PoWs under the Geneva Conventions.

What are the provisions for PoWs?

The treatment of prisoners of war is dealt with by the Third Convention or treaty. Its 143 articles spread over five sections and annexures are exhaustive, and deal with every kind of situation that may arise for a captive and captor, including the place of internment, religious needs, recreation, financial resources, the kinds of work that captors can make PoWs do, the treatment of captured officers, and the repatriation of prisoners.

The Third Convention is unambiguous about how prisoners must be treated: “humanely”. And the responsibility for this lies with the detaining power, not just the individuals who captured the PoW.

“Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention. In particular, no prisoner of war may be subjected to physical mutilation or to medical or scientific experiments of any kind which are not justified by the medical, dental or hospital treatment of the prisoner concerned and carried out in his interest. Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity. Measures of reprisal against prisoners of war are prohibited,” says Article 13 of the Convention.

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In this sense, the wide publicity given to the video recording of a blindfolded Wing Commander Abhinandan identifying himself to his captives could be held as a violation of the Geneva Conventions, although in a second clip he is heard saying, in response to a question, that he is being treated well. A third clip shows him being beaten by people in civilian clothes as he lies in a small stream.

What rights is a PoW entitled to?

Article 14 of the Convention lays down that PoWs are “entitled to in all circumstances to respect for their persons and their honour”. In captivity, a PoW must not be forced to provide information of any kind under “physical or mental torture, nor any other form of coercion”. Refusal to answer questions should not invite punishment. A PoW must be protected from exposure to fighting. Use of PoWs as hostages or human shields is prohibited, and a PoW has to be given the same access to safety and evacuation facilities as those affiliated to the detaining power.

Access to health facilities, prayer, recreation and exercise are also written into the Convention. The detaining power has to facilitate correspondence between the PoW and his family, and must ensure that this is done without delays. A PoW is also entitled to receive books or care packages from the outside world.

What do the provisions say about the release of prisoners?

Parties to the conflict “are bound to send back” or repatriate PoWs, regardless of rank, who are seriously wounded or sick, after having cared for them until they are fit to travel”. The conflicting parties are expected to write into any agreement they may reach to end hostilities the expeditious return of PoWs. Parties to the conflict can also arrive at special arrangements for the improvement of the conditions of internment of PoWs, or for their release and repatriation.

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At the end of the 1971 war, India had more than 80,000 Pakistani troops who had surrendered to the Indian Army after the liberation of Dhaka. India agreed to release them under the Shimla Agreement of 1972. Pakistan can decide to send Wing Commander Abhinandan unilaterally, or negotiate his release with India.

In such situations, who monitors whether the Geneva Conventions are being followed?

The Geneva Conventions have a system of “Protecting Powers” who ensure that the provisions of the conventions are being followed by the parties in a conflict. In theory, each side must designate states that are not party to the conflict as their “Protecting Powers”. In practice, the International Committee of the Red Cross usually plays this role.

During the Kargil War, Pakistan returned Flt Lt Nachiketa, who was captured after ejecting from his burning Mi27, after keeping him for eight days. This was after intense diplomatic efforts by the Vajpayee government and by ICRC. Another PoW, Squadron Ldr Ajay Ahuja, was killed in captivity.

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