Splintering the speculations amongst the Indo-Pak Tensions | Elucidation of Prisoner of War (PoW): Third Geneva Convention

Recently, Ministry of External Affairs (MEA) had in its press release stated that “Pakistan demarched on the act of aggression against India”.

“India also strongly 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. 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.”

This article aims to breaking down the understanding of the term “Prisoner of War” and its relation to the “Third Geneva Convention”.

International Humanitarian Law (IHL) also protects other persons deprived of liberty as a result of armed conflict.

Third Geneva Convention provides a wide range of protection for prisoners of war. Rules protecting prisoners of war (PoWs) are specific and were first detailed in the 1929 Geneva Convention. They were refined in the third 1949 Geneva Convention, following the lessons of World War II, as well as in Additional Protocol I of 1977.

POWs cannot be prosecuted for taking a direct part in hostilities.  Their detention is not a form of punishment, but only aims to prevent further participation in the conflict. They must be released and repatriated without delay after the end of hostilities. The detaining power may prosecute them for possible war crimes, but not for acts of violence that are lawful under IHL.

POWs 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 discussions on the Geneva Convention in respect of how a PoW is to be treated speeded through the social media platforms like plague, which mainly includes:

A total number of  143 Articles whereas the 1929 Convention had only 97.

Article 4 | Prisoners of war

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 members of militias or volunteer corps forming part of such armed forces.

(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfils the following conditions:

(a) that of being commanded by a person responsible for his subordinates ;

(b) that of having a fixed distinctive sign recognizable at a distance;

(c) that of carrying arms openly;

(d) that of conducting their operations in accordance with the laws and customs of war.

(3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

(4) Person who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.

(5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.

(6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

B. The following shall likewise be treated as prisoners of war under the present Convention:

(1) Persons belonging, or having belonged, to the armed forces of the occupied country, if the occupying Power considers it necessary by reason of such allegiance to intern them, even though it has originally liberated them while hostilities were going on outside the territory it occupies, in particular where such persons have made an unsuccessful attempt to rejoin the armed forces to which they belong and which are engaged in combat, or where they jail to comply with a summons made to them with a view to internment.

(2) The persons belonging to one of the categories enumerated in the present Article, who have been received by neutral or non-belligerent Powers on their territory and whom these Powers are required to intern under international law, without prejudice to any more favourable treatment which these Powers may choose to give and with the exception of Articles 8, 10, 15, 30, fifth paragraph, 58-67, 92, 126 and, where diplomatic relations exist between the Parties to the conflict and the neutral or non-belligerent Power concerned, those Articles concerning the Protecting Power. Where such diplomatic relations exist, the Parties to a conflict on whom these persons depend shall be allowed to perform towards them the functions of a Protecting Power as provided in the present Convention, without prejudice to the junctions which these Parties normally exercise in conformity with diplomatic and consular usage and treaties.

C. This Article shall in no way affect the status of medical personnel and chaplains as provided for in Article 33 of the present Convention.

Article 118 of the 1949 third Geneva Convention | Release and repatriation

 “Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities” and “unjustifiable delay in the repatriation of prisoners of war or civilians” is a grave breach of the Protocol.

Once PoW status is awarded to a combatant, he may be interned without any particular procedure or reason. The purpose of this internment is not to punish them but only to hinder their direct participation in hostilities.

Article 13 | Humane treatment of prisoners

Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention.

Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity. Measures of reprisal against prisoners of war are prohibited.

Article 14 | Respect for the person of prisoners

  • ‘Respect for the physical person of the prisoner ‘
  • ‘Respect for the moral person of the prisoner ‘
  • ‘The prisoner’s honour ‘

Therefore, the above explainer of the Geneva Convention in respect of the relevant Articles under the present circumstance of India’s IAF Pilot’s release in a clear and detailed manner puts the picture in place rightly, that Pakistan’s move of releasing our Wing Commander was in consonance to the Third Geneva Convention, and as stated by Pakistan’s PM Imran Khan in the parliament that the “release” was a “peace gesture”, India would want to speculate more on that.

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