Looking at Abhinandan Case through the Lens of IHL

The ICRC Updated Commentary to Geneva Convention I, 2016 clearly stipulates that even the capture of a single member of the opposing armed forces amounts to international armed conflict. (para 236, 237). In addition, there is no requirement for a “declaration of war” for the application of IHL. The classification of an armed conflict is not dependent on the subjective judgment of belligerent Parties, rather it depends on the objective determination of facts on the ground.

The recent dramatic capture of the Indian Air Force (IAF) Wing Commander Abhinandan Varthaman by the Pakistani Army in Pakistan Controlled Kashmir on 27 February 2019 and his subsequent repatriation to India on 1 March 2019 created heated tension in the political, diplomatic and legal arena. From the legal perspective, this incident brings many issues of international law in the table. This short detention of the IAF Pilot raises questions primarily under international humanitarian law (IHL) although other complex issues like the use of force, and self-defence under jus ad bellum i.e. law regulating the inter-state use of force might also be relevant in the broader context. This article aims to explore this incident exclusively through the lens of IHL.

IHL is a branch of public international law consisting of a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict by protecting persons who are not or no longer taking part in hostilities. This essentially includes – civilians unless they are directly participating in hostilities, and members of the armed forces who because of being wounded, sick, or shipwrecked, or due to capture are no longer taking part in hostilities. Besides, IHL limits the effects of war by restricting the means and methods of warfare. The Four Geneva Conventions of 1949 and two Additional Protocols of 1977 are the principal treaties of IHL. Besides, customary international humanitarian law is also an important source of IHL. Both India and Pakistan are parties to the Four Geneva Conventions, but not to the Additional Protocols.

In order to avail the protection under the Geneva Conventions – (i) there must be a situation of armed conflict, and (ii) the person in question must have a protected status under one of the Conventions. The present situation between India and Pakistan is an international armed conflict within the meaning of Article 2 Common to the Four Geneva Conventions. According to this Article, the Geneva Convention shall apply to “all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them”. According to International Criminal Tribunal for Former Yugoslavia, “…an armed conflict exists whenever there is a resort to armed forces between States…”.

Unlike non-international armed conflict, there is no requirement of “intensity of violence” in international armed conflict. The ICRC Updated Commentary to Geneva Convention I, 2016 clearly stipulates that even the capture of a single member of the opposing armed forces amounts to international armed conflict. (para 236, 237). In addition, there is no requirement for a “declaration of war” for the application of IHL. The classification of an armed conflict is not dependent on the subjective judgment of belligerent Parties, rather it depends on the objective determination of facts on the ground. This is also one of the reasons why the concept of ‘war’ has been replaced by that of ‘armed conflict’ since the adoption of the Geneva Conventions in 1949. Thus, as an international armed conflict, the Four Geneva Conventions shall be applicable in the present situation.

Now, crucial question is whether Wing Commander Abhinandan is a Prisoner of War (PoW) under the Geneva Convention. According to Article 4A (1) of the Geneva Convention III any member of the armed forces of a Party to an international armed conflict who has fallen into the power of the enemy is a PoW. In the present case, there is no doubt that Wing Commander Abhinandan was a member of the IAF who was in charge of an Indian fighter plane that was shot down by Pakistani forces and then he was captured. Therefore, he is entitled to the PoW status once he has been fallen into the hands of the enemy i.e. Pakistan.

PoW is a legal status ensued from the combatant privilege of members of the armed forces.  This status confers upon the PoW certain rights under the Geneva Convention III and the Party capturing a PoW has corresponding obligations to provide such PoW all the protection under the Convention. Depriving a PoW of this status is a violation of IHL and so as the non-fulfilment of his rights under the Convention. For example, PoWs are protected from all acts of violence and must be treated with respect and dignity. Besides, any public exposure that humiliates PoWs is also prohibited. Thus, the initial public exposure of Wing Commander Abhinandan in media in blind-folded manner may be argued to amount as a violation of Article 13 of the Geneva Convention III which prohibits any acts of violence or intimidation, insults and public curiosity.

A PoW can never be punished for his/her lawful acts of hostilities. Due to this combatant privilege, a PoW must be released as soon as the hostilities ceased between the Parties to the conflict. However, IHL does not prohibit the release of any PoW even before the active hostilities ceased, rather earlier release is expected from humanitarian perspective. Thus, the release and repatriation of Abhinandan was also made possible due to the express provision of Article 118 of the Geneva Convention III. This case shows the importance of faithful implementation and respect for IHL and will remain a vivid example – why IHL is called ‘humanitarian law’. Irrespective of legality or illegality of warfare, IHL seeks to humanize the war. Without such protection under IHL, the war would be even worse.

Cite this article as: Quazi Omar Foysal, 'Looking at Abhinandan Case through the Lens of IHL' (Bangladesh Law Digest, March 21, 2019) <http://bdlawdigest.org/looking-at-abhinandan-case-through-the-lens-of-ihl.html>

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