India: Geneva Convention (Prisoner Of War Status) And Its Applicability In The Case Of IAF Wing Commander Abhinandan Varthaman

Last Updated: 1 March 2019
Article by Shubham Borkar and Lakshay Kewalramani

Introduction

In an aftermath of Pulwama attack in which more than 40 CRPF (Central Reserve Police Force) Jawans lost their lives, India conducted an Air Strike on various Jaish-E-Mohammed's (Terrorist Organization that took responsibility of the Pulawama Attack) Training Centre and Launch pads in POK on 26th February 2019. As a consequence of which a troop of Pakistani Fighter Jets entered India's Air Space1. The Indian Air force countered their actions and IAF's Pilot Abhinandan Varthaman shot down one of Pakistan's F-16's by his MIG-21 bison. However, Unfortunately Abhinandan's MIG 21 Bison went down in the fierce dogfight in the POK territory. Consequently he was captured by the Pakistan Army.

From the point of Capture until now, there have been serious questions in the mind of Every Indian as to How Will he be treated, What the Geneva Convention is, What are the guidelines, What is a Prisoner of War, and most importantly whether Wing Commander Abhinandan would be treated as Prisoner of War is absence of Declaration of War.

To answer all this let us first understand what is Geneva Convention?

The third Geneva Convention specifies a broad scope of safeguards for Prisoners of War ("POW"). It defines their rights and thorough guidelines for their treatment and final release. International humanitarian law ("IHL") also protects other persons deprived of liberty as a result of armed conflict.

The status of POW only applies in international armed conflict. POWs are members of the armed forces of one Country to a war who fall into the hands of the opposing country. The third 1949 Geneva Convention also categorizes other classes of persons who have the right to POW status or may be treated as POWs.

POWs cannot be made accused for taking a part in conflicts.  Their custody is not a form of punishment, but only aims to prevent further participation in the conflict. They must be released and deported without delay after the conclusion of conflicts. The detaining power may accuse them for possible war crimes, but not for acts of violence that are lawful under IHL.

Prisoner of Wars must be treated humanely in all circumstances. They are protected against any act of violence, as well as against intimidation, insults, and public curiosity. IHL also defines minimum conditions of detention covering such issues as accommodation, food, clothing, hygiene and medical care.  

The current situation where our Pilot is in Pakistan's custody

It is confirmed that one Indian Air Force ("IAF") pilot is in Pakistan's custody after the IAF's MiG 21 bison aircraft was shot down by the Pakistan. While the Indian Govt. had initially stated that the Pilot was missing. Further a statement was issued on, confirming Wing Commander Abhinandan Varthaman detention. He is to be treated as a POW, according to the Geneva Conventions.

What are his rights as POW?

A POW must be free once conflicts between both sides end. Geneva Conventions formed in 1929 and amended in 1949 after the WWII, the Geneva Conventions lays down the rules which participants of the UN should follow.

There are 4 Geneva Conventions. The 3rd Geneva Convention describes in detail who can be declared as a POW and how the POW must be treated. Article 13 of the third Geneva Convention states that POWs must at all time be humanely treated. Any unlawful act or omission by the country, under whose captivity, the POW is in, which leads to death or seriously endangers the health of a prisoner of war in its custody is prohibited. This will also be as a grave violation of the Convention.

The POWs cannot be exposed to physical injury or to medicinal or scientific experiments of any kind which are not acceptable by the medical, dental or hospital, which is healing the POW in question. It also disallows POWs from being intimidated and outraged and or be subjected to public.

The Indian government said, "India also strongly objected to Pakistan's vulgar display of injured personnel of the Indian Air Force in violation of all norms of International Humanitarian Law and the Geneva Convention. It was made clear that Pakistan would be well advised to ensure that no harm comes to the Indian defence personnel in its custody. India also expects his immediate and safe return."

If the POW declines to reply to any question by the opposite party, the POW must not be exposed, offended, or exposed to any hostile or disadvantageous treatment. POW if injured must be given for medical treatment. It also states that all personal things except for military kit and military documents must remain with the POW. The POW must always have identity papers on his or her person. POWs must be moved to a place far away from the place of capture and the evacuation must be done in a humane way.

History of POWs captured in Pakistan

During the 1999 Kargil War, Flight Lieutenant K Nachiketa was a 26-year-old fighter pilot, who was consigned with the task of striking Pakistani posts in Kargil at altitudes in excess of 17,000 feet. He was captured by Pakistani armed forces.

Nachiketa was flying a MiG-27 fighter bomber, which blazed out during airborne actions, crashed and dropped into PoK. Nachiketa was a POW for eight days and was in the custody of Pakistan. After his return, he had exposed how he was physically and mentally tortured by Pakistani forces. In an interview, Nachiketa had said, "The torture was quite bad. There comes a point where you think 'death is simpler,' but fortunately for me, the third-degree part, which is the last part, didn't start for me."

Whereas the other Indian defence personnel, who were captured by Pakistani armed forced throughout the Kargil war did not survive a gross breach of Geneva Conventions India has been suffering.

In another case, Captain Saurabh Kalia and five other Indian warriors – Sepoys Arjun Ram, Bhanwar Lal Bagaria, Bhika Ram, Moola Ram and Naresh Singh – were tortured in  Pakistan's custody. Their mutilated bodies were handed over to India after 15 days. 

Conclusion

It is confirmed that Indian Air Force pilot Wing Commander Abhinandan Varthaman will be released by Islamabad on March 1, Pakistan's Prime Minister Imran Khan told parliamentarians during a joint session, "As a peace gesture we are releasing Wing Commander Abhinandan tomorrow,"

Sources have told that Wing Commander Abhinandan will be coming from the Wagah Border. Seeing the past history of POWs captured with our neighbor. The decision to hand over Wing Commander Abhinandan is a great sign. As per the current circumstances Pakistan cannot afford to further escalate an already tensed condition.

Author: Mr. Shubham Borkar, Senior Associate – Litigation and Business Development  and Lakshay Kewalramani –Intern, at  Khurana & Khurana, Advocates and IP Attorneys. In case of any queries please contact/write back to us at shubham@khuranaandkhurana.com or at www.linkedin.com/in/shubhamborkar.

Footnotes

1 As per Information Disclosed in the Joint Press Conference of  all 3 forces held on 28th Feb 2019

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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