Are India and Pakistan “in a state of war” — or even in a state of declared “armed conflict’?
That’s the question that could possibly determine the fate of Wing Commander Abhinandan Varthaman, who was allegedly taken into custody of the Pakistani Army after crashing in Pakistani territory.
So far, both India and Pakistan have been very careful to not use the word “war” or even “armed conflict” to describe what has been going on at the LOC for the past few days. Everything has been described as “LOC violation", "Targeted non-military attack" and “Self-defence”.
The language, however, seems to be changing after the capture of our Air Force pilot.
The government issued a demarche to the Pakistani authorities on Wednesday, hours after videos, apparently of an Indian Air Force pilot, surfaced in Pakistan media and social media. The soldier was seen being beaten up by locals in the presence of army personnel in one video, and standing bloodied with his hands tied behind his back, while being questioned by “officers” of the Pakistan Army in another.
The MEA initially made a statement that it had not received any information through legitimate diplomatic channels regarding the identity of the arrested soldier — but later summoned the Pakistani High Commissioner to “lodge a strong protest” against the “vulgar display of the injured IAF personnel, calling it a violation of all norms of the International Humanitarian Law and the Geneva Convention.”
The use of videos or images of conflict captures circulated on social media is a major new challenge for international law to deal with. (Photo: India Today)
The Geneva Convention and international human rights law have a complicated relationship with the realities of war and politics.
Article 2 of the Geneva Convention, on the treatment of Prisoners of War, in 1949, defined that the provisions of the international treaty would apply “to all cases of declared war or any other armed conflict, which may arise” between two countries.
Article 13 protects POWs and other “protected persons” from any inhumane, degrading treatment, including anything that could endanger the health and safety of the person. It also includes a specific prohibition against “acts of violence or intimidation, and against insults and public curiosity.”
Article 118 talks about release and repatriation of the POWs after cessation of active hostilities.
Some experts say India could appeal to the international community stating that Pakistan violated the Geneva Convention by “parading” the captured soldier, reportedly keeping him blindfolded and tied up, and circulating the video of his alleged questioning. Others say that since the two countries are “not at war”, nuances of international law and diplomacy will have to be skilfully negotiated.
The issue of social media leaks of Wing Commander Abhinandan’s alleged capture and questioning has remained a grey area in international law.
In 1999, during the Kargil War, when flight lieutenant K Nachiketa had been captured by Pakistan, the Indian government refused to allow him to be “handed over” back to India amid media presence. He was finally brought back to India by officials of the International Committee of the Red Cross (ICRC) — which is one of the international bodies that is a “neutral observer” for implementation of the Geneva Convention.
With increasing TV and social media presence now, the question of photographing or videographing captured personnel has become more and more complicated. In 2003, during the Iraq War, the international community was engaged in a debate on the photos and videos taken and published by reporters from media agencies embedded with US and British forces. The question was of ‘balance’ between photography for identification of a captured person — versus situations in which photography is intended to further humiliation through in-person display.
In 2006, the ICRC put out a consultation paper on the issue, noting that the Conventions signed in 1949 did not make any provision for modern social media technology.
“On the one hand, a newspaper photograph or television picture of a prisoner of war or of a civilian security internee can be claimed to prove that he/she is alive and to show his/her standard of treatment. On the other hand, such publicity can humiliate the prisoner of war or civilian security internee, endanger his/her family and make his/her return to his/her own State or community more difficult,” the ICRC paper said.
However, the ICRC also suggested that “It would also be unacceptable to show images of prisoners of war and civilian security internees in situations which humiliate or degrade them, even if they are not recognisable. Thus, it would not normally be acceptable to show hooded prisoners or unidentifiable persons in a humiliating or degrading position.”
The debate over showing prisoners of war or of conflict, often in hard situations, intensified with the Iraq War. (Image used for representational purposes. Photo: Reuters)
The question of whether showing “hooded prisoners” was “degrading” towards them was raised in the international community during the outrage on Abu Ghraib and Guantanamo Bay, with the Supreme Court of the USA in 2008 finally saying that even “non-state actors” were entitled to basic human rights, and the “Geneva Convention” protections would include protection from videos and photos being shown.
However, the practice still continues, even as the debate in the international community is not clearly settled.
Since neither India, nor Pakistan is ready to admit that there is an ongoing “armed conflict”, the situation becomes more complicated when it comes to international law obligations and asking the international community to support India.
There has been an outpouring of support from various countries, asking Pakistan to sit down at the negotiating table with India. It is now up to the Indian authorities to leverage international support — and bring our brave soldier back home where he belongs.