Will Indian Air Force's Wing Commander Abhinandan Varthaman, in Pakistan's custody after his plane was shot down on Wednesday, be governed under the Geneva Convention of 1929?
The wing commander, whose MiG 21 Bison aircraft was shot down by the Pakistan Air Force while engaged in hot pursuit to repel enemy attack on Wednesday, ejected safely but landed across the Line of Control and was taken into custody by the Pakistan Army.
The Ministry of External Affairs(MEA) summoned the acting high commissioner of Pakistan Syed Haider Shah and demanded the immediate and safe return of the pilot identified as Wing Commander Abhinandan Varthaman.
It was also made clear to Pakistan that no harm should be caused to the Indian defence personnel, the ministry said, adding it has conveyed strong objection to the neighbouring country at the "vulgar display" of injured personnel in violation of all norms of International Humanitarian Law and the Geneva Convention.
This has prompted interest in the Geneva Conventions, Prisoner of War (PoW) status, and their applicability in the current situation.
So far, neither India nor Pakistan has clearly described the IAF pilot as a PoW.
But, the third Geneva Convention notes that "The convention applies to all cases of declared war or of any other armed conflict which may arise between two or more of the signatories, even if the state of war is not recognized by one of them."
So, what are the Geneva Conventions?
Adopted first in 1864 for the "Amelioration of the Condition of the Wounded in Armies in the Field," the Geneva Conventions, understood in the present form, evolved through centuries as an agreement that extensively defines the basic rights of the civilian and military personnel imprisoned during the time of a war.
The first Geneva Convention came about due to the efforts of Swiss businessman and founder of the Red Cross society Henry Dunant after he published a book proposing the establishment of an organisation for relief work and humanitarian aid in wartime.
Thereafter, up to 1949, the conventions were updated several times. At present, the conventions comprise four treaties that mark out the benchmark of international law for humanitarian treatment in the event of a war and a total of 196 countries have ratified it.
Prisoners of War (POWs)
The rules protecting prisoners of war (POWs) are specific. They were first detailed in the 1929 Geneva Convention and later amended in the third 1949 Geneva Convention following the lessons of World War II.
According to rules, the status of POW only applies in international armed conflict.
"POWs are usually members of the armed forces of one of the parties to a conflict who fall into the hands of the adverse party," the Convention states.
It says 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 International Humanitarian Law," it says.
The rules specify that 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," the Geneva Convention states.
POW or Not?
But since India and Pakistan have not declared a state of war against each other, is Abhinandan a POW?
According to Air Marshal (retd) KC Cariappa, who was a POW in the 1965 war, "what we are witnessing today is what I call a skirmish. A war is yet to be declared. Abhinandan was performing his duty not in war so he cannot be classified as a PoW. He is just a prisoner".
The MEA described yesterday's events as "aerial engagements" between IAF and the PAF.
History stamp and Red Cross' monitoring
Often, such conventions are undermined by warring countries. Hence, there is a need to have a body that monitors whether the conventions are being followed or not. With regard to the Geneva Conventions, the International Committee of the Red Cross (ICRC) usually plays the role of a "Protecting Power" in dealing with such situations. A "protecting power," in theory, is a state so designated by each of the warring sides and is not a party to the conflict.
Flight Lieutenant Kambampati Nachiketa was captured by the Pakistan Army during the Kargil war on May 27, 1999. He remained in Pakistani custody for eight days and returned to India after he was handed over by the Pakistani side to the International Committee of the Red Cross.
