Authors: Adwitia Maity, Shivangi Khattar, Lalima Gupta
Editor: Sheetal Sharma
“It’s always the fear of the unknown"
K. Nanda Cariappa, Retired Air Marshal
In 1906, the government of Switzerland made arrangements for a conference between thirty-
five states to look into the areas for improving the propositions of the First Geneva
Convention. In the amendments so introduced, there were provisions regarding the protection
of the ones wounded or captured in battles as well as volunteer agencies and other medical
professionals involved in the process. Recommendations regarding making repatriation of
belligerents were proposed instead of making it mandatory.
However, after the First World War, the necessity for further amending the pre-existing
provisions was felt. Therefore, in 1929, newer provisions were introduced so that all
prisoners of war could be treated with compassion and be allowed to live in humane
conditions. Rules regarding the daily lives of prisoners were also laid down, and the
establishment of the International Red Cross as a neutral organisation meant to collect and
transmit data about prisoners of war and those wounded or killed in the process.
In this regard, the ‘prisoners of war’ must be defined. It has been put down in words in
Article 4 (A)(1) of the Third Geneva Convention which is related to the Treatment of
Prisoners of War [GC (III)]. They are defined as a person or persons captured or interned by a
belligerent power during a war. It is, mostly, applicable to members of the armed forces, but
they may include civilians who take up arms during a combat openly against an enemy, or
non-combatants who are associated with military forces.
In recent times, the Indian Air Force Wing Commander Abhinandan Varthaman was captured
by Pakistan after the incident of air strikes between India and Pakistan. While some argue
that Wing Commander Varthaman was entitled to receive treatment as a prisoner of war, in
the legal sense of the term there was no declaration of war by either of the states involved. To
answer that, reference may be made to Article 2 of the Geneva Conventions which clearly
states that the provisions of this Convention “shall apply to all cases of declared war or to any
other armed conflict which may arise between two or more of the High Contracting Parties,
even if the state of war is not recognised by one of them”.
Overall, the whole point behind laying special emphasis on the treatment of prisoners of war
is that those detained in armed conflicts must be treated with humanity irrespective of their
allegiance, which is laid out in GC (III). These humane standards are something which is
worth fighting for.
RIGHTS, REPARTION AND RELEASE
According to the Geneva Convention POWs cannot be prosecuted for taking direct part in the
hostilities as their detention cannot be treated as a form of punishment, they are detained only
with an aim to prevent further participation in the conflicts. Also, there are some disciplinary
sanctions that are provided to these prisoners of war. Firstly, according to Article 118 they
shall be released and repatriated without delay after the cessation of active hostilities. On
repatriation any article of value impounded from them under Article 18, and any foreign
currency which has not been converted into the currency of detaining power shall be restored
to them. Prisoners of war against whom criminal proceedings are pending, can be detained till
the end of the proceedings or till the completion of their punishment. The same is applicable
for those who were already convicted for an indictable offence and were sentenced to
punishment depriving them of liberty. The Geneva Convention also lays down the rights of
the Prisoners of War as it is considered that a crime cannot reduce a person into a non-person,
so he is entitled to all those rights that are provided to a non-prisoner. First and the foremost
right is Right to be Treated humanely in all types of circumstances. They shall be protected
against any kind of violence, as well as intimidation, insults and public curiosity. Any
unlawful act or omission by the detain power which can cause death or any serious injury
endangering the health of the prisoner in custody is prohibited. The International
Humanitarian Law also laid down some minimum conditions of detention that cover issues
like accommodation, food, clothing, hygiene, medical care of the prisoners etc. They should
be respected in all circumstances. No prisoner of war may be subject to physical mutilation or
medical or scientific experiments of any kind that are not justified by the medical, dental or
hospital treatment of the prisoner concerned and carried out in his interest. The women
should be treated in the same manner as men are treated. There should not be inequality in
treatment on the basis of gender, sex, etc. Every prisoner of war when questioned on any
subject, is bound to provide only his surname, first name, rank, date of birth, personal or
serial number etc. If he refuses to answer the questions, he cannot be threated, insulted or
exposed to any unpleasant treatment of any kind and also the detaining powers cannot coerce
or torture him to secure the information.
CHALLENGES AND REALITY
Mental Torture, physical agony and a never-ending hope to return are some of the aspects
that a war prisoner faces after his captivity. But the possibility of complete hospitable
environment can’t be ruled out altogether. But this brings us to a question that why are these
people met with such fate despite the provisions of the Geneva Convention and if there exist
any loopholes what can be the remedies to it.
Detailed observations led us to the following conclusions for violation ideology:
No declaration of war: Fearing the notoriety in the UN, every country in the world that is
fighting a war with its neighbouring country without declaring it to be a war. Resultantly, the
prisoners who get detained in tussle never get the status of POWs and hence no rights. They
are entitled as spies and met their fate.
The drafts, simple yet incomplete: The convention defines POWs and their right but lacks a
system of checks and balances. There is no authorised body to check into the effective
implementation of these provisions specially during the time of war.
Internal loopholes: No authority in the world can ever be forgiven for misleading and wrong
information in regard to its people. The situation gains highlight in Journalist Chander Suta
Dogra’s book ‘Missing in Action: the prisoners who did not come back’ where he writes “It
is likely that the CO realized that Maj. Suri had gone missing due to errors made at his end; if
the truth ever came out, his own leadership and performance would be questioned”.
All these factors lead to the atrocities, some of which are as discussed:
Cannibalism: It was in 1946 that a Japanese Lieutenant Hisata Tomiyasu was sentenced to
death for this heinous crime. Reportedly no such instance has gained highlight after that. Not
because it never happened but because it becomes easier to hide a crime.
Mutilation: The horrifying instance of Captain Saurabh Kalia and five other soldiers - Sepoys
Arjun Ram, Bhanwar Lal Bagaria, Bhika Ram, Moola Ram and Naresh Singh who were
tortured while in Pakistan's custody. Worth remembering that their mutilated bodies were
handed over to India after 15 days 1 .
Mental agony: The harrowing experience of 3,000 POW is a proof that how some of the
wounds go unattended. All POW recounted that one of the worst aspects of their captivity in
Tibet was the constant attempt at brainwashing by Chinese Communist propaganda. 2 Proving
how it is not only the physical torture that matters a living.
Physical torture: “All that a prisoner is expected to reveal are his name and his service
number and not any more than that” despite clear mentions the war enemies torture, and
starve the POW to spread dominance.
TIME TO REFORM
Conclusively it can be stated that Geneva Convention although much ahead of its time fails to
tackle the new forms of atrocities that are laid on the POW. These lackadaisical methods of
punishment and lip services do not work anymore because with strengthening ties of the
world peace, the roots of hidden and more heinous forms of crimes are mushrooming. Thus,
o A need of body for check and balances,
o A forced implementation of rules by signatories,
o A determined judiciary to check all violations,
o Rehabilitation policies and
o An upgraded set of rules to incorporate what is left behind and will follow in the years
1 Theja Ram explainer: what the Geneva Convention says about the treatment of Prisoners of war The news
Minute on 16 July 2020 at 3pm at https://www.thenewsminute.com.
2 Claude Arpi Exclusive! How China released Indian Troops after the 1962 war rediff.comon