April 16, 2022
Good morning. Every Saturday, we write about one specific right that you possess as a citizen in our country. In today’s edition of “Know Your Rights”, we look at the rights of prisoners of war in India.
KNOW YOUR RIGHTS – EDITION 35
Rights of Prisoners of War (PoWs)
As conflicts have raged worldwide over the past century, millions have lost their lives and countless more injured. In the midst of this, some may survive behind enemy lines. They are on the front lines of the battles but have been captured by the enemy, known as prisoners of war (PoWs).
Under International Humanitarian Law, an individual has the primary status of either civilian or combatant. Their secondary status is dependent on whether they’re captured. Then, combatants become PoWs, and civilians become protected persons. Based on this, their legal rights and privileges are accorded under the laws of war.
The Geneva Conventions came into effect more than seven decades ago, in 1949. It initially covered four categories – the wounded and the sick, those who were shipwrecked, prisoners of war, and protection of civilians in wartime. In 1977, two additional protocols were added to cover armed conflicts of a non-international character.
Countries have ratified and adopted the Conventions, but they aren’t mandated to fulfil their obligations. The effects of non-compliance were evident in the indiscriminate use of chemical weapons in Syria and Yemen. India ratified the Conventions in 1950. At the time, it was the fifth country and the first in the region to do so.
The Third Geneva Convention outlines the treatment of PoWs. It defines them as members of the armed forces of a party. They have to fulfil four basic conditions. First, they are commanded by a person responsible for their subordinates. Second, they have a fixed distinctive recognisable sign. Third, they openly carry arms. Finally, they conduct operations per the laws of war and rules of engagement.
There are 143 Articles under the Third Geneva Convention. They relate to the rights of a PoW and corresponding obligations of the detaining power. Here are a couple of examples – Article 13 outlines humane treatment and stipulates that PoWs must be protected against acts of violence and intimidation, i.e., torture. Article 15 states that a PoW is entitled to receive medical attention. Article 16 states a PoW will be treated without discrimination based on race, nationality, religion, etc.
The basic principle of the Convention is that the enemy power has to treat PoWs humanely, secure them from combat, and shouldn’t torture them. Upon questioning, they can give their name, rank, date of birth, and serial number corresponding to their rank or unit. They should be given nutritious food and proper clothing. They are also allowed to keep with them any non-weaponry items like IDs.
The Third Geneva Convention states that the purpose of detaining PoWs is to ensure they don’t actively participate in combat. If they aren’t going to be prosecuted, they must be repatriated once the conflict ends. In general, a majority of the obligations under the Conventions are on the detaining country.
An Indian Perspective
In India, the earliest written references to laws of war were illustrated in the Mahabharata. In it, Ashwathama is condemned to a life in solitude for killing innocent people in their sleep. Manusmriti stated that warriors cannot kill enemies who are disabled or those who surrender. It was only during the Vedic period when society became more politically and socially organised that people became cognizant of the laws and customs of war.
After India became a party to the Geneva conventions in 1950, it incorporated them into its statute book through the Geneva Conventions Act, 1960. The Act didn’t have a complimentary piece of legislation that incorporated India’s international humanitarian law obligations.
In Rev. Mons. Sebastiao Francisco Xavier dos Remedios Monteiro v. The State of Goa, the Supreme Court observed that the Act itself didn’t provide a remedy, but gave indirect protection through penalties for breaches of the Conventions. The Act stated that the government is obligated to respect the Conventions. Also, the Indian constitution makes some fundamental rights available to “all persons”, not just Indian nationals.
India & Pakistan
It’s a bloody past that the two countries share. Peace treaties were signed in the aftermath of the 1965 and 1971 conflicts. Hence, there was an obligation on both sides to repatriate PoWs. After the 1971 conflict, India returned around 93,000 Pakistani prisoners and 600 Indian prisoners were repatriated from Pakistan.
The International Committee of the Red Cross (ICRC) also plays a crucial role in conflicts. It was a mobilising force before the Geneva Conventions came into being. Under the Conventions, the group has the right to visit PoWs on humanitarian grounds. They operate on the principles of independence and neutrality. For many, it’s a controversial stance. During the 1965 Indo-Pak conflict, the ICRC was recognised as a neutral intermediary. Its delegates visited PoWs and civilian detainees.
During the Kargil war, 26-year-old fighter pilot Flight Lieutenant K Nachiketa’s MiG-27 crashed in Pakistan Occupied Kashmir (PoK). He was captured by Pakistani forces and was a PoW for eight days. Once he returned, he detailed how the forces mentally and physically tortured him. Another example is that of Captain Saurabh Kalia and five others. They were tortured, and their mutilated bodies were handed over to India after 15 days. Despite pleas from Kalia’s family, the Indian government seemed apathetic. Even after his father moved the Supreme Court in 2012 in hopes of a probe, the government later said they wouldn’t approach the International Court of Justice (ICJ).
The most recent and high-profile example is Wing Commander Abhinandan Varthaman. In February 2019, his MiG-21 aircraft was shot down in Pakistan-administered Kashmir in Horran village. He was taken into custody by Pakistani forces. Pakistani authorities released images and videos of him being interrogated while blindfolded and receiving first aid. The release of the videos was deemed controversial as it might’ve violated the Geneva Conventions. India’s view was simple – he was a PoW, and the Conventions would apply to him.
However, experts were divided on whether the Geneva Conventions were applicable in this case. Some argued that he deserved to be treated humanely per the third Geneva Convention as the conflict wasn’t resolved between the two sides. On the other hand, some believed the conventions didn’t apply since an act of war wasn’t declared by either India or Pakistan. In this case, he would be treated only as a regular prisoner and not a PoW.
However, international lawyer Priya Pillai said what was relevant was whether International Humanitarian Law would apply, regardless of a declaration of war. Her view was that it would if at least one side was a signatory to the Geneva Conventions. India and Pakistan have both signed and ratified them. She also said he is a PoW as he falls within the definition of belonging to one side of the conflict. Hence, the Conventions would apply.
There has been some commentary, discussion, and debate on PoWs and the Geneva conventions in light of the recent Russian invasion of Ukraine. India has had a storied past when it comes to PoWs. With examples of enhanced interrogation techniques, i.e., torture, that flared up in the US in the aftermath of the war on terror post 9/11, the Geneva Conventions have come up time and again. It remains the bedrock for the protection of civilians and PoWs in armed conflict worldwide.