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Prisoners of war under International humanitarian law with additional Analysis of Indo-Pak war

This research paper aims at providing a clear picture as regards to prisoners of war. Prisoners of war are civilians, military/Paramilitary officials who are held captive by the captor who is usually the winning party of the armed conflict. These Prisoners of war have their respective rights as humans and cannot be subjected to any inhumane treatment as was the case in ancient and medieval ages.

The need for formulation of proper rules with regards to this topic accelerated after the World Wars which cause so much chaos with mass killings of several innocent people. To avoid such cases of basic human rights being hindered in the future, the international laws had to be reformed. It was after this that the Geneva conventions for various periods were formulated.

These conventions made sure that no page is left unturned and remedies and rules for the worst of the situations are also specified. This research paper further tries to clarify the very reason because of which the Geneva Conventions have to be revised from time to time and the major articles of the convention.

A special analysis of the facts of the Indo Pak war is put down and their connection with the rules of the convention is studied. In conclusion, the infamous case of Wing commander Abhinandan of the Indian air force is also examined in brief

Wars, no matter how many different names or meanings it is provided with are nothing new to the world. During the times of kings and queens, dynasties and kingdoms, wars were an everyday sight for the people. The kings used to spread their empire and prove their vigor and competency only through wars and defeating their rivals. A little later, even in the 19th and the 20th century, there was abundant usage of the term 'WAR' in the world.

The various countries still found an opportunity to prove their competence by combats and showing their proficiency to the world. Wars like ww1 and 2 are perfect examples of this. Even though these wars could have been circumvented, they still took place and lead to turmoil in the whole world.

President Woodrow Wilson quoted World War 1 as A war to end all wars', but still, World War 2 took place and it would be safe to say that no war had ever managed to change the mindset and perception of the various authorities of the world as did the World War 2. Cicero once wrote inter arma silent leges which means 'In war, the law is silent'. Imagine what would have happened if the world continued to blindly follow and function as per this notion. It would have led to the biggest catastrophe with mass killings of innocent people in the name of war being a normal affair. The need for legal interference was the need of the hour to prevent any further world wars from taking place. A legal framework is something on which people have always relied upon and in many situations have proved to be the biggest savior.

Armed Conflict, Combatants And Pows

Armed conflict under international law is defined as an act that occurs when 1 or more countries use armed force against a third party which can be a state, government, etc. Keeping all the other entities aside, one thing is for sure that in an armed conflict, the combatants are very well authorized to use force, kill and destroy provided, such killings are not at random. Otherwise, it would activate a grave violation of human rights. However, it is important to pay attention to the fact there are certain situations under which such killings are not considered to be a real violation of the law.

For example:
usage of armed force while executing legal duties, self-defense, oppress a riot, etc come under the various exceptions and shall not be amounted to be a breach of law because if one party is fighting with arms, the other cannot fight with stones until they want to lose intentionally. Therefore it is clear that the LOAC or the law of armed conflict is very much harmonious to Human rights. This can be supported by an argument that LOAC does not take away the very right or power of the combatants to use force to disperse off their duties but at the same time, it also makes sure that during such use of the power the Human rights are not violated.

The various combatants who fight during such armed conflicts also have their respective human rights. It is not that just because these combatants are killing people for whatever purpose their respective countries are fighting for, they do not have any rights of their own. Every person from a civilian to a combatant or the enemy has their respective rights that cannot be violated.

This research paper, however, focuses on the rights of those people who might be civilians, military members, or irregular military fighters and have been held captive by a hostile power either in course of the war or immediately after such armed conflict. These are the people who in a proper sense face violence and see their rights being crushed under the feet of the party which abducted them.

They are called by a particular name i.e. PRISONERS OF WAR. It is very much obvious by the word used abducted that it is not always that they are treated humanely. There might as well be some legitimate reasons for abducting these prisoners of war but as far the history of armed conflicts is considered, these POWs were never really abducted for legitimate reasons and even if they were, no humane treatment was provided to them.

The first-ever time that the word 'PRISONER OF WAR' was coined was in the year 1610 but it was not very commonly used until World War 2. Statistics show that more than 90000 people were abducted and made prisoners of war during this war.

Prisoner Of War- Historical Background

It is universally known that the practice of keeping people hostage during or after the war is something that has always been practiced and the situation is no different even today. This abduction draws its roots from the ancient period. During the ancient era, prisoners of wars were divided based on ethnic roots, cultures, the combatants of the defeated side, etc.

During the ancient times for all obvious reasons, there were no laws about the rights of the prisoners of war and most importantly, there was no such enlightenment related to humane treatment therefore anyone captivated irrespective of their number usually met a similar fate which was of being slaughtered or enslaved for life. Thankfully this is not the condition today. Imagine how depressing it would be if countries enslaved the prisoner of war for a lifetime or sent them to slaughterhouses. All the credit for the current understanding of the world so far as prisoners of war are concerned goes to the enlightenment amongst people concerning the basic human rights guaranteed to all.

However, if we go on a little further on the timeline, i.e. roughly during the Middle Ages or the renaissance period, it is very much evident that the condition did not change much. There was rather a mix of events happening. For example- on one side during the blockade of Paris in 464 people were pleading the king to do something good for the prisoners of war and not kill or enslave them and on the other hand, there were such religious wars as well with the basic aim of destroying the religion the opponent belonged to.

In modern times, the scenario has changed. In the past times the prisoners of war were considered to be a personal property of the party which abducted them, now, on the contrary, they are considered to be the property of the respective state/s which they belong to. In France, it is very interesting to see that whenever an officer was captured he used to surrender his sword and there were such rules that if the officer swore that he would not act smart and not try to evade or play any other tactic to leave the premises of the place where he was abducted, he would be given special privileges.

Can you see the differences? Can you see how things have changed drastically from a prisoner of war being slaughtered or enslaved to being provided with privileges? This is what in the real sense is called enlightenment and evolving of the personalities and mindset of the people with time. It is only after this that we realize that something called humanity existed in the middle and modern ages, an element that was lacking in the ancient ages.

Ius Ad Bellum Versus Ius In Bello

Whenever a war takes place in the world many aspects go unnoticed. No matter how crucial they might be. It is rather true that once force starts being utilized then there is no soon ending to the violence. It is often seen in the previous wars of the world and even in the present (as in the case of Syria) that once the war begins and 2 or more parties begin to use force the with that force comes the complementary to it, INJUSTICE. There can be no war in which arms are used and no threat or problem is posed for the common men at all.

Rather most of the time after the armed conflict has begun or has finished the basic reason or the basic analysis of whether this conflict was just or not cannot be drawn. Can a war ever be 'just' when people are being killed with no mercy?
If we try to analyze the background of this then we come across a very interesting component. Since ancient times the first and foremost question that international law had to deal with was whether a war was just or not. The burden of proof for this question lied on the party with attacked first. If for any reason the party was unable to justify its course of action then it was liable to pay compensation. It sounds so absurd that such havoc and the party which caused it goes away only with a mere compensation. It is however very truly said that evolution in the field of law only takes place when society grows and in this growth, past mistakes play a very important role.

CLAUSEWITZ very famously once said that war is nothing else but a continuation of politics by other means. This phrase woefully turned out to be accurate in 1907. This was a phase in world politics in which going on war was considered to be normal. Any political leader, to consolidate his position, could by hook or crook make himself the leader, If not by the majority then by force. In such cases the legality of the war must be examined because otherwise, the world would transform into a warzone.

The maxim, IUS AD BELLUM deals with this very question of the legality of the war. On the contrary, IUS IN BELLO which is famed as the International Humanitarian law deals with the various laws which shall be applicable in case of an armed conflict. in and all it is very important to discern between the 2 maxims. They are not complementary in nature because while deciding the legality of the war, legal rules during armed conflict are not kept in preview and vice-versa.

World Wars And Armed Conflict:

another important facet of Internal Humanitarian law with regards to human rights can be ranged back to the First World War. It was such a traumatic phase that theoretical concepts like just and unjust wars could not be analyzed. It was after this breathtakingly unjust and violent war that the BRIAND KELLOG PACT of 198 was signed.

Under this pact, an initiative was finally taken to stop and prohibit any armed conflict as such but while making this pact another important thing that could not be ignored was war in case of self-defense. If all the wars will be prohibited then how shall a person/state practice its human right to self-defense? Therefore after consultation between the parties, it was decided that all armed conflicts shall be prohibited but still leaving a small window open in order to reserve the rights of the states and people to self-defense.

Apparently, this was the very reason that International Humanitarian law became a very important part of international laws. If no rules were governing the armed conflict between various countries then no human rights would have been conferred to him/her and mass killing of innocent people would have continued.

Articles Of Convention:

A total of 4 treaties and 3 additional protocols are incorporated in the Geneva Convention. It can be understood that after the 2nd world war it was very important that proper laws and rules are established so that no war causes violence and bloodshed to that extend ever again in future.

In Geneva Convention of 1949, a set of treaties were signed by all the member countries certifying that all he countries in case of an armed conflict shall make sure that all the people, be it civilians, medical practitioners or any such military officers who are no longer involved in any use of power under duty shall be treated humanely and no rights of theirs shall be curtailed. In addition to this, soldiers who are prisoners of war, wounded or sick should also be treated with utmost humanity.

While dealing with prisoners of war, the document in its very nature is quite vast and thorough this means that it consists of all such circumstances which might arise in the future. Before getting in depth of the provisions of the convention it is important that certain meanings are very clear for proper analysis of all the provisions:
  1. Captive: captive is a person who has been taken prisoner during a course of war or any other internal or external conflict.
  2. Captor: captor is a person who catches or confines another
  3. Internment: grave or tomb in which corpse in buried
  4. Repatriation: return of a person to his own country
Whenever a person is held captive by a captor, it is the responsibility of the captor that nothing unlawful happens. In case an unlawful act is committed on part of the captor and this act which causes death or jeopardizes the health of the captive, then it will be regarded as a severe breach of the provisions of the convention.

The convention also states that no captive shall be tortured in any manner. To elaborate, no scientific or medical experiments shall be conducted on the captive. However, there is an exception to this because there are chances that circumstances might arise in which certain type of medical or scientific examination of the captive is required. In such cases, prior justification on the part of the doctors or scientists is required.

Another very important provision of the convention states that no captive shall at any cost be subjected to physical mutilation.
The above mentioned provisions clearly draw out a conclusion that prisoners of war shall at all costs be protected by the captor and no harassment-mental or physical, no insult from the public, and no acts of violence are committed against the captive.

Articles Of Convention:

the 3rd Geneva Convention deals with the prisoners or war. This convention dated 12 August 1949 was a replacement of the previous convention of 1929. This convention consists of a total of 143 articles. The most important question which arises here is related to the reasoning of such replacement. When the world evolves, various aspects of societies change and new facets in warfare also emerge and in order to not miss out and stay in consonance with the present world conditions, laws also need to evolve. Hence the 1929 convention was replaced by the convention of 1949.

Article 4:

this article of the convention defines prisoners of war as has already been discussed earlier in the research paper. A person has to be an ex or present member of the armed forces of the country which is occupied.

Article 12:

this article is covered under the heading of 'responsibility for the treatment of prisoners and conditions for their transfer to another power. It clearly states that in case the power which has captured the prisoner of war can transfer the prisoners to only such a power which is already a member of the convention and it has to be noted here that once the transfer takes place, it would now become the responsibility of the transferee to take care that proper treatment is provided to the prisoners the most important of which is humane and just treatment free from any arbitrary use of power on part of the new detaining power.

Article 13:

this article in the convention falls under the heading of humane treatment of prisoners and makes it very clear that no prisoner shall be treated or kept under inhumane conditions. No matter what the circumstances are, a prisoner cannot die. No prisoner's heath can be jeopardized. It clearly amounts to breach of the convention if any such thing takes place.

Article 14:

this article is the most important as far as the respect and honor of the prisoners is considered. It is in itself a very wide-ranging and important article as it talks about women and treatment towards them. It clearly considered women to be equivalent to men and clearly states that all women shall be treated at par with the prisoner men and no wrongful treatment shall be given to them.

Article 15 And 16:

these articles talk about maintenance and quality of treatment of prisoners. Both of these articles together state that whatever money or resources are spent on the prisoner of wars has to be completely incurred by the detaining power and shall be completely free for the prisoners or the country to which they belong.
Various other articles of the convention talk about the evacuation of the prisoners, food, clothing, quarters, conflicts, etc.

Indo Pak War 1971

Causes And Course Of The War

During the rule of the British in India, the whole country was divided into 2 majorly antagonistic proportions of people. One was that of Muslims and the other was Hindus. This division is seen even today and is a burning topic of discussion in most of the academic and intellectual platforms. If we go down the timeline we would find out that the main culprit behind such a divide in the Indian society were the Britishers who always made sure that the unity of India broke down somehow because it has always been the biggest asset for the country.
The long blown cold and a sometimes hot war between the two religions was believed to conclude after the partition of British India. This was the biggest misconception and misapprehension because what actually happened was totally the opposite of this.

After the division of the country and the formation of India and Pakistan, the latter which was a Muslim dominant country was also divided into 2 parts. The territory of the country had to be divided into two parts because it was not possible to allocate the whole country in one single patch of land as the Muslim people were scattered in the whole of India and not just in a single belt. These two parts of Pakistan were East Pakistan and West Pakistan. East Pakistan, before partition, belonged to the Bengal province of British India. It had to be made a part of the newly formed Pakistan because this area was intensely Muslim dominated.

The problem which arose now was that the Bengali Muslim dominated area of East Pakistan felt isolated and complained that it was not given any attention while legislating or bringing on new reforms for Pakistan as a whole. Another drawback was that there was said to be increasing racial differences between East and West Pakistan. The Bengali people were of the view that their religion was deprecated and the announcement of Urdu being the official language of Pakistan led to the various protests in East Pakistan with people demanding Bengali to be made official language as well because that area was heavily Bengali dominated and Bengali was the language that was used by almost everybody living there. The people living in this part of Pakistan now started coming out in open demanding their fair share of importance and various leaders also emerged. Finally after a series of atrocities and killings, on 26th of March 1971, one of the old stagers of the Pakistan army, Major Ziaur Rehman declared the Independences of Bangladesh on the radio.

All this time, India being the mother country was very evidently vocal about its stand over the whole issue and supported Bangladesh in its quest for freedom. India set up a number of refugee camps at various locations in the East. Pakistan was obviously not happy with India taking so much interest in the matter and was apprehending that India wants to take over the area provided in the name of Pakistan after partition. All these opinions of the nation could not stop India and India started taking in a huge influx of people as refugees into the country giving them an opportunity to merge with India and the country would provide them with their respective rights.

Furious Pakistan on the 3rd of December 1971, decided to launch deterrent air strikes on Indian airfields in different parts including Agra. This step was taken by Pakistan in the hope that it might lead to India getting scared and ultimately leaving the internal matter of Pakistan to be resolved by themselves proved out to be their biggest mistake because Indian Prime Minister at the time, Indira Gandhi declared on the radio that the preemptive steps of Pakistan are seen as an attack on the very prestige of India and the willingness of it to engage in war, therefore, India is ready and raises a war against Pakistan. This was the official announcement after which the two countries were out in open on the battlefield and not there was no turning back. Moreover, the people who were kept in refugee camps were given training by the Indian authorities and defense forces.

These refugee camps were situated on the borders of the war of 1971 had a lifespan of 13 days. The end of the war was a rather embarrassing one for Pakistan as the country surrendered to the Indian forces after signing the instrument of surrender by the Pakistani armed forces.

The Prisoners Of The War Of 1971

The Bangladeshi forces known as the MUKTI BAHNI which translates as freedom fighters comprised of a group of Bangladeshi people who belonged to different backgrounds but fought for a single goal. Soon this collective force became a movement and a large number of people ranging from Bangladeshi civilians to military and Para military officials were a part of this movement. The main objective of this Paramilitary force was revenge from the Pakistani forces which had caused so much havoc in the country.

After the Pakistani forces had surrendered, it was the Indian Army that took the responsibility to make sure that no soldier of Pakistan after the instrument of surrender was signed should be harmed and the biggest threat to their protection was the MUKTI BAHNI movement, the people of which were dying to take their revenge. Keeping this in mind, the Indian army gave the Pakistan officials to keep small arms with them so that Pakistani prisoners of war could defend themselves.

The Indian army was of the view that now when Pakistan had surrendered and Bangladesh had achieved its autonomous status as a separate country, the POWs of the war shall be sent back to their country. This was the point of disagreement between the Bangladeshi and the Indian forces as Bangladesh was of the opposite view and wanted to keep the POWs in the country and try them in their special courts for the outrage and crimes that they had conducted against humanity. Bangladeshis were totally against the point of view of the Indian defense forces in this matter.

India however, did not change their perspective and made sure that nothing inhumane and wrongful happens against the Pakistani prisoners of war therefore during the time period of 1971-71 decided to set up military camps in different parts of the country and started shifting the POWs to these camps. By 1973, the Indian military made sure that all the POWs were shifted to the red fort and Gwalior fort of New Delhi.

At that time the rules of the Geneva Convention 1925 were in force and India made sure that it strictly stick with them. The renowned Shimla agreement was signed between the Pakistani and Indian armed forces in 972 but it did not make that much of a talk in the town and not much was done after this agreement was signed. It was only after the Delhi agreement was signed in 1974 that the repartition initiated. Under this pact the Prisoners of war repatriated at the Wagah border. The statistics show that approximately 93000 prisoners were kept by India.

If we try to scrutinize then the division was as follows:
  1. The prisoners of war were not only Pakistani officials but also Bangladeshi collaborators
  2. Uniformed officials were the largest in number and counted to be approximately 79676 in number.
  3. The remaining prisoners were civilians majority of which are believed to be family members of the military officials.

International Impact Of The War

The the stand taken by India was highly commended in the United Nations forum. India's role in the whole conflict was very positive towards both sides. Pakistan's conduct which jeopardized the human rights of the people of Bangladesh was severely criticized by India and appropriate steps were also taken. On the other hand, India also made sure that the human rights of Pakistani prisoners of war were not endangered. Most importantly, India abided by the rules and regulations of the Geneva Convention of 1925.

The Case Of Wing Commander Abhinandan Varthaman

Wing commander Abhinandan was captured by Pakistan during an airstrike between the India and Pakistan. The biggest question which arose under this case was whether the rules of the Geneva Convention are applicable in this scenario because broadly speaking; there was no announcement of an official war between the two countries. This question was of greater significance because the countries had ratified the Geneva Convention of 1949-51 which mostly consisted of subject matters like: the treatment which should be provided to the Prisoners of war and what shall be the treatment when the prisoner is wounded.

It was finally decided that the rules of the Geneva Convention would apply to the said case because article 2 of the convention clearly states that it is not necessary that the country in a conflict shall be under war. Even if there is some sort of armed conflict between two countries then also this convention would very well apply. This clearly states that Abhinandan would under all circumstances be the responsibility of Pakistan under the Geneva Convention and his interests could not have been jeopardized because if something wrong would have happened then it would clearly be considered as a breach of the rules of the convention.

Conclusion
This research paper ends with a denouement that Humanitarian law goes arm in arm with Human rights law. In the end, the biggest thing which is being fought by international humanitarian law is the protection of basic rights of individuals in case of an armed conflict because no matter what the circumstances might be between two countries while in a state of war or an armed conflict, the rights of the people living in those countries cannot be abridged and their safety and well being cannot be imperiled at any cost. Moreover, the Geneva Conventions make it very clear that just because the officers of the armed forces are a part of war does not mean that they do not have any rights of their own.

Once the war is officially over, it is the responsibility of both the countries in conflict to make sure that every person no matter what his/her designation is, has to be protected and nothing unlawful shall at any cost take place. It is in the best interest of the world that all the rules of the Geneva Convention are followed. The peace and harmony of the world will continue to exist when the general public of the various nations will be respected and protected.

Sources And References
  1. www.icrc.org
  2. www.bjus.com
  3. www.youtube.com
  4. Military Medicine, volume 167
Written By: Ashna Sharma, BA LLB (H), Semester: 08, Batch: 2017-2022 - Amity Law School, Noida (UP)

Declaration
I, hereby declare that the dissertation entitled Prisoners of War under International Humanitarian Law with additional analysis of Indo-Pak war 1971 is an original work submitted by me and has not been submitted in nay university for any degree or diploma.

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