A case for Abhinandan Varthaman: The Geneva Conventions on treatment and release of prisoners

Today, Indian Air Force Wing Commander Abhinandan Varthaman was captured by Pakistan after an exchange of air strikes between the two countries. Bar & Bench speaks with International Lawyer Priya Pillai on the current situation between India and Pakistan and the legal position and rights of Wing Commander Abhinandan Vathaman under Geneva Conventions.

Legally speaking, do the laws of war or International Humanitarian Law (IHL) apply in the current scenario?

There has been no ‘declaration’ of war, with neither state indicating this. What is more relevant is whether the protection of International Humanitarian Law would apply in this case – regardless of a declaration, or of the scale or intensity of the conflict.

The Geneva Conventions – the bedrock of International Humanitarian Law (IHL), or the laws of war – apply in the case of international armed conflict, where at least one of the parties is a signatory to the conventions. In this case, Pakistan and India have both signed and ratified Geneva Conventions I – IV of 1949, in 1950 and 1951 respectively.

These Conventions relate to the Condition of the Wounded and Sick in Armed Forces in the Field [GC (I)]; to the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea [GC (II)]; relative to the Treatment of Prisoners of War [GC (III)]; and last but not least, relative to the Protection of Civilian Persons in Time of War [GC (IV)]. This means that the rights and obligations detailed by these international conventions – that are nearly universally signed and ratified – are incumbent on both states.

Specifically, on the question of the application of the Geneva Conventions to a particular conflict, guidance can be found in Common Article 2 – which is an article that is present in all the conventions. Per this provision, 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 recognized by one of them.” The current situation would clearly fall within this definition, resulting in the applicability of the Geneva Conventions.

With Wing Commander Abhinandan Varthaman in custody of Pakistan, can he be considered a Prisoner of War? If so, how long does this status last?

The definition of a prisoner of war is in Article 4 of the Third Geneva Convention relative to the Treatment of Prisoners of War [GC (III)]. Per Article 4 (A)(1), prisoners of war are

“…persons belonging to one of the following categories, who have fallen into the power of the enemy: (1) Members of the armed forces of a Party to the conflict as well as (2) members of militias or volunteer corps forming part of such armed forces.”

Wing Commander Varthaman is a member of the armed forces of a Party to the conflict – being an officer of the Indian Air Force – and therefore falls within this definition of a prisoner of war. As such, he must be accorded all the protections available under the Geneva Conventions.

Article 5 of GC III then details the scope of application of the convention i.e. it

“…shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.”

This means that at the time of capture and until final release, the obligations under the conventions will continue to apply in all circumstances.

This then leads to the question of release and repatriation. Per Article 118 GC (III),

“Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities.”

If there is no such provisions in any agreement for the end of hostilities, there still needs to be a plan for repatriation put in place “without delay” and these plans must be informed to the prisoner. In the case of a prisoner of war who is sick or wounded, there is also provision for repatriation to a neutral third state (Article 110).

While the term “cessation of active hostilities” is not defined, it is relevant to note the aims of the convention when interpreting this term – that GC (III) was to rectify gaps in previous treaties (the Hague Regulations of 1907 and the 1929 Convention on Prisoners of War) – which relied on the establishment of peace prior to release. The interpretation of the phrase differs in practice in various military manuals, but there does not seem to be a requirement of a formal ‘agreement’ as such. Rather, the end of hostilities is assessed as a question of fact and should suffice for release and repatriation.

(It is worth pointing out that at the end of the last major conflict between India and Pakistan in 1971, the signing of an agreement signifying the end of hostilities (the Simla Accord) unfortunately did not guarantee the release of approximately 50 Indian prisoners of war, suspected to be still held in jails in Pakistan.)

The rationale underlying these provisions, however, is based on the premise that repatriation is an inalienable right, that must be respected and without undue delay.

What are the rights and obligations regarding a prisoner of war under the Geneva Conventions?

There are 143 articles in GC III, which relate to the rights of prisoners of war, and the corresponding obligations of the detaining power. The approach of the laws of war is to realize the protection of those vulnerable in times of conflict, including civilians and prisoners of war.

In this respect, most of the obligations are on the detaining state.

GC (III) has detailed provisions as regards the treatment and protection of prisoners of war. The basic principles for the treatment of prisoners are established in Part II (Articles 12 – 16). Article 13, on humane treatment, stipulates that prisoners of war “must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity.”

Reprisals against prisoners of war are prohibited. In addition, there must be the provision of medical attention (Article 15), and equal treatment of all with no adverse distinction on the basis of race, nationality, religious belief etc. (Article 16). Arguably, the circulation of videos of the prisoner, or any form of humiliating treatment, would fall foul of Article 13.

At the commencement of captivity, when prisoners may be questioned in a language they understand, Article 17 details the information required to be divulged by a prisoner – “only his surname, first names and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent information.” This is the only information required.

“No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind.”

There are other extremely detailed provisions that encompass all aspects of captivity and possible situations in detention, including the conditions of captivity, food, medical treatment, labour, correspondence, discipline, etc. These provisions are meant to regulate and protect the condition of prisoners, till such time as repatriation occurs, and are a comprehensive legal regime.

(As a point to note, Pakistan has entered reservations to two provisions of GC (III), but these are not relevant to the current discussion.)

Priya Pillai is an international lawyer, with expertise in international justice and humanitarian issues. She has worked at the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Federation of Red Cross and Red Crescent Societies (IFRC) in Geneva, and with various national institutions. She holds a PhD from the Graduate Institute, Geneva; an LL.M from NYU; and a B.A.LL.B. (Hons.) degree from NLSIU, Bangalore. She can be reached on twitter @PillaiPriy

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