On Thursday, 28 February, Pakistan Foreign Office spokesperson Dr Muhammad Faisal said that captured IAF pilot Wing Commander Abhinandan Varthaman is safe in their custody, and that
“We’ll decide in a couple of days what convention will apply to him and whether to give him Prisoner of War status or not.”
This statement seems to indicate that Pakistan may decide not to consider the captured pilot a prisoner of war.
But would such a stance be justified? Do the Geneva Conventions not apply to the treatment of the pilot and the current conflict between India and Pakistan? And will applicability of the Geneva Conventions mean he is to be sent home immediately?
RELEVANT BACKGROUND
Ministry of External Affairs spokesperson Raveesh Kumar on Wednesday, 27 February, confirmed that India had lost a MiG 21 aircraft in an “aerial engagement” with the Pakistan Air Force. The engagement took place when the Indian Air Force responded to an attempt by Pakistan aircraft to target military installations in India in the early hours of the day, which Kumar said was successfully foiled.
Major General Asif Ghafoor of Pakistan’s ISPR had earlier made an official statement on behalf of their armed forces, claiming that Pakistani aircraft did not enter Indian airspace, but fired at targets across the LoC. He claimed that despite being able to lock on to military targets, their aircraft instead fired at an open area to demonstrate they had the capability to respond to India’s air strikes of 26 February, without escalation.
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Ghafoor claimed that when the IAF responded, two aircraft crossed the LoC, and in the ensuing “engagement”, both aircraft were shot down, with one falling in Indian territory and the other in Pakistan’s.
According to him, two IAF pilots were captured, one of whom is now in hospital.
Pakistan Prime Minister Imran Khan also referred to having two pilots in custody during his statement later in the day, though Ghafoor has subsequently clarified that only one pilot is in the Pakistan Army’s custody.
India’s first statement acknowledged that one MiG 21 aircraft was lost during the engagement, and that a single pilot is missing in action. A subsequent statement confirmed that a “personnel of the Indian Air Force” is in Pakistan’s custody, and demanded his immediate and safe return.
Therefore, it is now clear that at least one IAF pilot has been captured by Pakistan, following the aerial engagement on Wednesday morning. Although the name of the pilot has not been expressly confirmed by India, it appears that the pilot in Pakistani custody is Wing Commander Abhinandan Varthaman.
Applicability of Geneva Conventions
India and Pakistan are both party to the Geneva Conventions of 1949 and are bound to abide by the rules of war and treatment of enemies laid down in these. The specific convention relevant to any captured pilots would be the Geneva Convention Relative to the Treatment of Prisoners of War 1949, often referred to as ‘Geneva Convention III’.
Any member of the armed forces of one country who falls into the hands of another country is a ‘prisoner of war’ (PoW) under Article 4 of this convention, if the two countries are involved in an ‘armed conflict’. A person can only therefore be designated as a PoW in an international armed conflict.
There are those who might argue that there is no armed conflict at present in the first place, let alone an international armed conflict, since neither side has declared war, and there has been no large-scale confrontation.
However, according to the commentary on Geneva Convention III, “any difference arising between two states and leading to the intervention of members of the armed forces is an armed conflict”.
An International Committee of the Red Cross opinion paper argues that an international armed conflict occurs when armed force is used by one State against another, “regardless of the reasons or the intensity of this confrontation.” A formal declaration of war is not relevant either.
Since the “aerial engagement” took place between the air forces of India and Pakistan, after strikes on Indian territory by Pakistan, it is difficult to see how this would not qualify as an armed conflict, especially since India claims that military installations were targeted by the Pakistan Air Force.
The commentary on Geneva Convention III supports this proposition, noting that it “makes no difference how long the conflict lasts, how much slaughter takes place, or how numerous are the participating forces; it suffices for the armed forces of one Power to have captured adversaries falling within the scope of Article 4.”
As a result, Pakistan is obliged to ensure that they treat any captured IAF pilots in accordance with Geneva Convention III.
Rights of Prisoners of War Under the Geneva Convention
Geneva Convention III sets out a number of general and specific protections for prisoners of war.
GENERAL PROTECTIONS (ARTICLES 12-16)
The general protections include humane treatment, respect for their persons and honour, free maintenance and medical treatment, and equal treatment without discrimination.
SPECIFIC PROTECTIONS (ARTICLES 17-121)
The specific protections deal with all the aspects of their captivity, including how they can be questioned (no physical or mental torture), the conditions of the place where they are imprisoned, the quality of the food they are given, access to hygiene and medical supplies, and how they can be put to work.
They are to be allowed correspondence and their property is not supposed to be confiscated unless necessary. Prisoners of war cannot be tried or convicted for engaging in hostilities, though they can be prosecuted for any criminal activity during their captivity.
When the hostilities between the countries end, all prisoners of war are to be released and repatriated without delay under Articles 118 and 119, subject to any relevant criminal proceedings and punishment.
Has Pakistan Already Violated the Geneva Convention?
India’s second MEA statement objected to “Pakistan’s vulgar display of an injured personnel of the Indian Air Force in violation of all norms of International Humanitarian Law and the Geneva Convention.”
Videos have emerged of one pilot, purporting to show him in Pakistani custody. One shows him being questioned about his name, one is of him being taken away by Pakistan forces after locals attacked him, and one shows him answering questions while drinking tea.
Article 13 of Geneva Convention III states that PoWs must be treated humanely at all times. This provision specifically says that PoWs must “at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity” (emphasis added).
This gives India two possible arguments to make for violation of the convention.
- First, that by releasing videos of a prisoner of war, Pakistan has failed to protect the pilot from “public curiosity”. Regardless of whether a PoW is being treated well or not, they shouldn’t be put on display, so the fact that these videos have been circulated, even at one point from an official Twitter account, could be viewed as a violation of Article 13.
- Second, that the Pakistani forces failed to protect the pilot from acts of violence by the mob of locals. The pilot is shown being beaten even while the forces are taking him away, and bleeding from injuries to his face, which again could be construed as a violation of Article 13.
In terms of the acts of violence against the pilot, he has in one video thanked the Pakistani armed forces for rescuing him from the mob, and in the video from the scene, Pakistani forces can be heard telling the mob to leave him alone. It is no doubt arguable that the Pakistani forces could have done more, and that the pilot’s thanks are coerced, but this would not be conclusive either way.
As for the publication of videos, the law on this point is not entirely clear, though it does logically make sense that any videos would violate the protection from public curiosity. Having said that, it is at least good to see that the pilot is alive and in reasonable condition, which means Pakistan will be under more scrutiny to ensure no further harm comes to him.
What Happens Now?
First, Pakistan needs to positively affirm that it will be ensuring the pilot’s treatment is compliant with the Geneva Conventions.
Pakistan cannot claim the Geneva Conventions do not apply especially since Article 2 of Geneva Convention III specifically says that it applies even where one country does not acknowledge there is an armed conflict. India has already acknowledged that the Geneva Conventions apply, and as explained earlier, formal declarations of war are not required.
It is in fact against Pakistan’s interest to not declare him a PoW, since in such an event, international human rights law protections would apply rather than those international humanitarian law. These include the right to a fair trial, right against torture and right to humane treatment, and the standards for these are stricter than under humanitarian law. Pakistan would also have to ensure consular access to him under the Vienna Convention on Consular Relations (which is of course the subject of the Kulbhushan Jadhav case in the ICJ).
Any further videos of the pilot or violence against him would be serious, and would clearly violate Pakistan’s obligations under international humanitarian law and human rights law.
Second, India needs to ensure it monitors his treatment and protests any further violations. If the MEA is firmly of the view that the laws of war have already been violated, India should take this up in the United Nations as well as talks with Pakistan and other nations.
Third, Pakistan should return the pilot(s) as soon as the hostilities between the countries are over. India has said ‘we expect his immediate release’, but if there continue to be air strikes and skirmishes, Pakistan can claim that they are not obliged to return him. This also emphasises the need to begin dialogue and de-escalate the conflict.
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