WAR PRISONERS: GOVERNANCE AND REALITY

Authors: Adwitia Maity, Shivangi Khattar, Lalima Gupta

Editor: Sheetal Sharma

INTRODUCTION

“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,

there arises-

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

to come.

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