New Delhi: The Indian Air Force will receive Wing Commander Abhinandan Varthaman at the Wagah border later on Friday, two days after he was captured while engaging in an aerial dogfight with Pakistani F-16s.
Pakistani PM Imran Khan’s announcement on Thursday to release the IAF pilot came as a surprise amid escalating tensions between the two nuclear-armed countries after an intense aerial confrontation. Khan in his parliament speech called the IAF pilot’s release “a gesture of peace.”
However, our forces dismissed the release being a gesture of peace and suggested that it was mandated under the Geneva Conventions.
But what are these conventions and how does Wing Commander Abhinandan Varthaman fit into the bill of being a ‘Prisoner of War’
What are the Geneva Conventions?
Before the explainer, just to note, the Wing commander who was at the helm of a MiG – 21 Bison has not been termed as a PoW either by India or Pakistan. The Geneva Convention were adopted in 1949 in the backdrop of World War II. However, the four Geneva Conventions, with three protocols added since 1977, continue to apply today to situations of armed conflicts. The conventions have been ratified by 196 countries.
The first convention requires that all wounded and infirm soldiers as well as medical personnel and chaplains in the field are treated humanely without discrimination on the basis of race, colour, gender, religion or faith, and the like. It prohibits acts such as torture, mutilation, outrages upon personal dignity, and execution without judgment. It also grants them the right to proper medical treatment and care.
The second convention extends the protections described above to shipwrecked soldiers and other naval forces, including special protections afforded to hospital ships.
The third convention is related to the treatment of Prisoners of War (PoWs) while the last Convention focuses on the protection of civilians in times of war.
Is IAF pilot Abhinandan Varthaman a prisoner of war?
Neither the Indian MEA nor its Pakistani counterpart has identified the Wing Commander as a PoW. However, as per the third Geneva Convention, “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.”
Professor Manoj Kumar Sinha, Director of Indian Law Institute and an expert on international law, says whether it is determined that there is a state of war or armed conflict or not, "a person has to be tested humanely and with respect when captured by another country. The member of the armed forces will have to be given all rights in accordance with UDHR and International Humanitarian Law".
Sinha also added that as per convention as soon as the period of conflict or war is over, the officer needs to be handed over to the country of origin.
What are the rights that a PoW can claim?
A video that surfaced from Pakistani media showed Wing Commander Varthaman sipping tea and praising how Pakistan treated him. The MEA, in a demarche to the Pakistani envoy in India, had objected to this “vulgar display”.
According to Article 13 in the third Geneva Convention, PoWs must be "humanely treated" at all times. "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,"
But can Pakistan be accused of being in breach of the convention once the video of the pilot being roughed up was released?
The convention states that all PoWs have to be protected against insults and public curiosity as well as acts of violence or intimidation. In this context, Pakistan may have crossed the line when the military spokesperson tweeted an image of the captured IAF pilot. The Geneva Conventions also strictly bar airing pictures of captured prisoners on television.
In fact Varthaman appeared to be in complete knowhow of the Geneva Conventions when he disclosed only his service number and religion after he was interrogated by the army personnel.
"Every prisoner of war, when questioned on the subject, is bound to give only his surname, first name and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent information," states Article 17 of Convention III.
"No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever."
Did the conventions have a role to play in the release of the IAF pilot?
A clause in the convention states that as soon as the hostilities end, the PoW must be surrendered to their country of origin. As per Article 118 of Convention III, PoWs "shall be released and repatriated without delay after the cessation of active hostilities".
Even if the countries at conflict are not able to reach an agreement toward cessation of hostilities, "each of the Detaining Powers shall itself establish and execute without delay a plan of repatriation in conformity with the principle laid down (above)".
In June 1999, Flight Lieutenant Kambampati Nachiketa, the only PoW during the Kargil War was sent back home. This was after the Indian authorities rejected Pakistan's idea of a public handover at their foreign office by citing the Geneva Conventions.
Union minister and former Army chief V K Singh said on the release of the pilot: “A lot of things are done in line with the Geneva Convention. We are happy that he is being released. If they call it a gesture of peace, we are happy for that too, but they need to do a lot more.”