Rights of Prisoners of War Emanating From The Third Geneva Convention
Gaurav Mohunta, Advocate
Punjab & Haryana High Court, Chandigarh
Date : 18/03/2019
Rights of Prisoners of War Emanating From The Third Geneva Convention
ABSTRACTA lot of hue and cry ensued in India when Wg. Cdr. Abhinandan Varthaman was captured by Pakistani forces on February 27, 2019 following a dogfight between the Air Forces of both the countries. Following his capture, a series of debates started all across the country regarding the rights of captured prisoners and the treatment given to them during an armed conflict or war. It was then, when the role of Geneva Convention was unfolded. Thus, in this article I have made an endeavor to canvass the hard psyche of prisoners and their heart-wrenching difficulties eventuating during an armed conflict and subsequent inherent fundamental rights they are entitled to as emanating from the Geneva Convention.
INTRODUCTION"The law of war forbids the wounding, killing, impressing into the troops of the country, or enslaving or otherwise maltreating the prisoners of war unless they have been guilty of some grave crime, and from the obligations of this law no civilized state can discharge itself."
...Daniel Webster, 1842"Prisoners of war" (POWs) are combatants who have fallen into the hands of the enemy, or particularly non-combatants to whom the status of prisoner of war is granted by international humanitarian law. In light of the recent incident of Wg.Cdr. Abhinandan, the million dollar question was what happens to a soldier if he lands in a hostile territory during war or an armed conflict? Whether the belligerent is bound to afford him protection under the obligations of International law? The answer is in affirmative in as much as the protection afforded to a prisoner of war emanates from the "Geneva Convention relative to the Treatment of Prisoners of War, 1929" which was subsequently revised and amended in the year 1949. It caters humanitarian protection & treatment for prisoners of war. The soi-disant humane treatment of prisoners of war has always been a true myth, at least to the ancient soldiers. Conventionally, any alive soldier was not taken as a prisoner due to the apprehension that he may have to be fed and taken care of by the domain affording protection to him and the burden of protecting him will come upon them. Also there will be chances of his escape and return to the battlefield. Thus, with the advent of time and under international obligations through treaties and conventions, equitable and compassionate treatment of prisoners of war during war or an armed conflict became a sine qua non for the belligerents.
GENESIS OF GENEVA CONVENTIONThere were four Geneva Conventions in total:
• The First Geneva Convention "for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field" (first adopted in 1864, revised in 1906, 1929 and finally in 1949);
• The Second Geneva Convention "for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea" (first adopted in 1949, successor of the Hague Convention (X) 1907);
• The Third Geneva Convention "relative to the Treatment of Prisoners of War" (first adopted in 1929, last revised in 1949);
• The Fourth Geneva Convention "relative to the Protection of Civilian Persons in Time of War" (first adopted in 1949, based on parts of the Hague Convention (II) of 1899 and Hague Convention (IV) 1907).
• The 1949 convention has been modified with three amendment protocols:
• Protocol I (1977) relating to the Protection of Victims of International Armed Conflicts.
• Protocol II (1977) relating to the Protection of Victims of Non-International Armed Conflicts.
• Protocol III (2005) relating to the Adoption of an Additional Distinctive Emblem.
• The Peace Conferences of 1899 & 1907 lead the States to come in agreement between themselves to limit their sovereign rights over prisoners of war.
• The Instructions of 1863 for the United States Army contained the first ever declaration that no retaliation should be carried out upon prisoners of war.
• The Brussels Conference of 1874 which framed a draft International Declaration was the first international step towards regulating the status of prisoners of war.
• In 1880, the International Law Institute adopted a set of rules known as Oxford Manual intending to codify the laws of war.
• The Regulations pertaining to the Hague Conventions of 1899 and 1907 on laws and customs of war bestowed prisoners of war an explicit legal statute which provided them protection from despotic treatment by the detaining state.
• The Berne agreements of 1917 and 1918 necessitated the augmentation of Hague Regulations during the First World War.
• The 10th International Conference of the Red Cross at Geneva in 1921, a request was made to draft a Convention on prisoners of war.
• In 1923, the International Committee of the Red Cross prepared a draft Convention which served as a working paper at the 1929 Diplomatic Conference, held at Geneva from July 1 to 27, when the Prisoners of War Code was drawn up.
• In 1929, the new Convention i.e. the Third Geneva Convention relative to the Treatment of Prisoners of War, 1929 came into existence which also supplemented the Hague Regulations.
• The 1929 Convention was applied throughout the Second World War and afforded prisoners of war an effective protection and treatment far better than that which they had received during the First World War.
• A need for revision of the 1929 Convention was felt so as to expand and modify the existing Convention with expert help from Governments, National Red Cross Societies and other relief Societies.
• The process of revision commenced with the Preliminary Conference of National Red Cross Societies in 1946 and the Conference of Government Experts in 1947.
• In 1948, the International Committee drafted text for the proposed amended Convention and presented it to the 17th International Red Cross Conference held at Stockholm.
• Diplomatic Conference was convened by the Swiss Federal at Geneva from April 21 to August 12, 1949 to discuss the texts for the amended Convention. The Conference set up four main Committees to consider revision of the Convention.
• The Draft approved by the 17th International Red Cross Conference formed the basis for the first reading of the new Convention.
• On May 2, 1949, the Second Committee decided to establish a Special Committee to consider Articles 4, 12, 65-67, 71, 84, 115, 118, 119 & 125 of the 1949 Convention.
• On May 5, 1949, the Second Committee established a Committee of Medical Experts to consider the draft model agreement on direct repatriation and accommodation in neutral countries.
• On August 12, 1949 the new Convention i.e. the Amended Third Geneva Convention was signed and adopted by the Diplomatic Conference for the Establishment of International Conventions for the Protection of Victims of War, held in Geneva from 21 April to 12 August, 1949 after several rounds of discussions and thorough deliberations. It came into force on 21st October, 1950.
• Currently there are 196 state parties to the Third Geneva Convention, 1949 and the 1929 Convention is no longer in operation following the universal acceptance of the Geneva Conventions of 1949.
RIGHTS OF PRISONERS OF WAR AS STIPULATED UNDER THE THIRD GENEVA CONVENTIONThe Geneva Convention, 1949 has been divided into 6 Parts and contains 143 Articles whereas the 1929 Convention had only 97. Article 4 of Part I discusses Prisoner of War elaborately.
BASIC FUNDAMENTAL RIGHTS
• Every person in enemy hands must have some status under international law as laid down under Article 5.
• A prisoner of war must be treated humanely without any adverse discrimination and his medical needs must be met. Further, he is the responsibility of the State & not of the persons who capture him. Also, he may not be transferred to a State that is not a party to the Convention. (Articles 12 to 16 of Part II)
• During questioning, a prisoner is at liberty to provide only the information as laid down under Article 17 to the detaining State. The method of interrogation is also limited. A prisoner would not be subjected to any sort of physical or mental torture or threatened in any form and any coercive measure may not be inflicted upon the prisoner of war to secure any information from him. A prisoner of war must be evacuated from the combat zone after his capture to a safe zone as soon as possible; which shall be the responsibility of the detaining State. A prisoner of war is entitled to private property subject to articles as prescribed. (Article 17, 18 & 19)
• A prisoner of war shall be entitled to befitting quarters, food and clothing as laid down under Articles 25, 26 & 27.
• A prisoner of war shall always be entitled to sanitary benefits conforming with the rules in order to ensure hygiene and to prevent epidemics. Further, he will be entitled to immediate medical assistance and the cost incurred on treatment shall be borne by the detaining State. (Article 29 & 30)
• A prisoner of war may be compelled to do only the type of labor as laid down under Article 50, taking into consideration factors such as rank, age and sex. Work which is unhealthy or dangerous can only be done by prisoners of war who volunteer for such work.
• A prisoner of war shall be entitled to financial resources as laid down under Section IV. (Articles 58-68)
• A prisoner of war shall be entitled to send and receive mail in the form of letters and cards subject to reasonable restrictions as imposed by the detaining State. (Articles 69-74)
• A prisoner of war shall have the right to make known to the military authorities in whose power he is, his requests regarding the conditions of captivity to which he is subjected. Also, he shall be entitled to make complaints with respect to conditions of captivity. (Article 78)
• A prisoner of war shall be entitled to present his defence with the assistance of a qualified advocate or counsel during judicial proceedings before a military court. No moral or physical coercion may be exerted on a prisoner of war in order to induce him to admit himself guilty of the act for which he is accused. (Article 99)
• A prisoner of war shall be entitled to be repatriated and accommodated subject to conditions laid down under Article 110.
• A prisoner of war shall be released and repatriated without delay after the cessation of active hostilities. (Article 118)
CONCLUSION"The only licit end that a State may have in war is at most to weaken the military strength of the enemy. The laws of war do not recognize any belligerent an unlimited liberty to inflict injuries upon the enemy. They are to abstain especially from all needless barbarity, as well as from all traitorous, unjust, or tyrannical acts." In ancient times the concept of "prisoner of war" was unknown and the defeated became the victor's "chattel". During the middle ages; it became customary to free captives upon payment of a ransom but these practices were discarded in modem times. Traditionally, soldiers in the battlefield are not subject to human rights considerations. But keeping in view the horrors of world wars of the twentieth century, it was time for taking enemy soldiers alive and keeping them as housed prisoners of war. Also, affording them just and fair treatment & protection became an obligation under International Humanitarian Law. The Third Geneva Convention provides a wide range of protection for prisoners of war. It defines their rights and sets down detailed rules for their treatment and eventual release. In view of the safeguards bestowed upon the prisoners of war under the Third Geneva Convention and due to the insurmountable diplomatic and international pressure exerted upon Pakistan, Wg. Cdr. Abhinandan was released from captivity within two days.
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