Pakistan's Obligations to IAF Pilot in Custody Under the Geneva Convention

International humanitarian law fully applies to the current military situation between Indian and Pakistan.

At the press briefing held by the Ministry of External Affairs (MEA) at 3:15 pm on Wednesday, its spokesperson confirmed that, early on February 27, the Pakistan Air Force targeted Indian military installations and consequently, one Pakistani aircraft was shot down by a MiG 21 Bison of the Indian Air Force, which later fell within Pakistan’s territory. However, in the said aerial engagement, India lost one its pilots – now identified as wing commander Abhinandan Varthaman and purported to be in the custody of the Pakistan Army.

Are India and Pakistan involved in an ‘international armed conflict (IAC)’? Article 2 of the Geneva Convention says that “… The present Convention shall apply to all cases of declared war or of 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… ”

Though there is no official declaration of ‘war’ from either country, the answer to the question remains ‘yes’. International law doesn’t require ‘declared war’ in order to classify the conflict as international and consequently, begin the application of international humanitarian law (IHL).

Also read: #Abhinandan, a Human Face to the Costs of War, Empowers Voices for Peace Online

Further, the Geneva Convention holds, “Any difference arising between two States and leading to the intervention of members of the armed forces is an armed conflict within the meaning of Article 2, even if one of the Parties denies the existence of a state of war.”

A conflict will be classified as an international armed conflict irrespective of the intensity and duration of the same, if states resort to their armed forces, as held by the International Criminal Tribunal for the former Yugoslavia (ICTY) in the Ramiz Delalic Case. It should be noted that an international armed conflict is presumed to exist even if one state sparks military action to no retaliation from the other.

While the objective of attacks by states is immaterial, the acts committed by the forces must be hostile. In other words, the attack or use of force by members of armed forces of a state must be an act of enmity.

India’s targeting of Jaish-e-Mohammad (JeM) training camps within Pakistani territory on February 26, followed by Pakistan’s attack on Indian military installations, can be seen as an international armed conflict – thus allowing IHL to govern both India and Pakistan’s conduct and practice.

Capture and status of prisoners of war

If states refuse or deny protection awarded to those they capture by the Geneva Conventions on the account of ‘non-existence of war’, the act of capturing a member of the armed forces of another state triggers the application of IHL. Thus, the protection provided under the Third Geneva Convention, 1949 (GCIII) comes into play the instant a combatant is captured, irrespective of prior use of force. This protection begins the instant a combatant is captured and lasts till repatriation or release.

Article 17 of the GCIII only requires a captured combatant to answer questions pertaining to name and rank, date of birth and the armed force serial number, in order to receive PoW status.

Thus, this convention obligates Pakistan to not coerce or inflict any physical or mental torture to secure any information from wing commander Abhinandan Varthaman. Furthermore, the captured individual retains the right to refuse to answer any question put forth by the detaining force. Varthaman, rightfully discharging his obligation under the GCIII, identified himself and his religion before the Pakistani forces and gave them his designated serial number, 27981.

Article 12 ties a state with the acts of its agents, in official or private capacities, with respect to the treatment accorded to a PoW and makes it responsible for a breach (if any), with an additional obligation to prosecute its own agents for any violation. Article 13 mandates that PoWs are to be humanely treated at all times. It would require Pakistan to ensure that no harm is done to the life and health of Varthaman – with a clear prohibition on mutilation.

Also read: After Pak Says It Has IAF Pilot in Custody, India Confirms 1 Is ‘Missing in Action’

Having shared a video of Varthaman on social media, in which he can be seen bleeding, Pakistan is acting in conflict with the protection awarded against “insults and public curiosity”. Any attempt to kill, wound or endanger the life of a PoW will be seen as a grave breach of the Geneva Conventions in furtherance of the positive obligations placed under Article 13.

In addition, Pakistan is obligated to safeguard Varthaman’s physical and mental health with respect to his quarters (Article 25), quality and quantity food (Article 26), clothing (Article 28), medical checkup (Article 30 requires this at least once a month), coupled with an express obligation to protect his religious beliefs and ensure that he is able to fulfil his religious rites without any hindrance (Article 34).

Keeping in mind the confessions extracted through coercion in the past, Pakistan cannot do away with the obligations under the GCIII even if Varthaman waives his protection.

From the time of capture until the time of release, a PoW is subject to the laws of the detaining power and can be tried for any related offence. However, an exception to this provision is that the POW won’t be held liable for any offence for which members of the detaining power aren’t liable (Article 82). Even if wing commander Abhinandan Varthaman is not termed a PoW, Pakistan is under obligation to accord fundamental guarantees to the captured individual – as per Article 75 Additional Protocol 1 – and treat him humanely without any discrimination based on nationality, religion, race and so on.

Pakistan cannot use the fact that they aren’t party to Additional Protocol 1 to refuse compliance with treaty obligations, as the protection provided under Article 75 has its place in international law. Though Pakistan can try the captured individual under a military court (impartial and independent) after providing legal aid (Article 105), it cannot take away the protection awarded to him under the Geneva Conventions.

Aakash Chandran is a LLM candidate (international law) at the South Asian University, New Delhi.

This article was first published on LiveLaw. Read the original here