DR.

RAM MAHOHAR LOHIYA

NATIONAL LAW UNIVERSITY

FINAL DRAFT:
GENEVA CONVENTION ON PRISONERS OF WAR

SUBMITTED BY: UNDER THE GUIDANCE OF:

HIMANSHU VERMA DR. PREM KUMAR GAUTAM

ROLL NO: 150101055 FACULTY OF LAW

SECTION ‘A’ DR. RAM MANOHAR LOHIYA

SEMESTER VIII NATIONAL LAW UNIVERSITY

B.A. LLB (Hons.) LUCKNOW

 TABLE OF CONTENTS

TOPIC PAGE

Acknowledgement 3
Introduction 4
Background: The ICTY and BWCC

The Legal Regulation of Crimes Committed against

POWs
Cases involving Crimes against POWs

CASE OF ABHINANDAN

History of POWs captured in Pakistan

GENEVA CONVENTION

CONCLUSION 15
BIBLIOGRAPHY 16
 ACKNOWLEDGEMENT

It is indeed my privilege to present this project on GENEVA CONVENTION ON PRISONERS OF

WAR’, to my teacher, DR. PREM KUMAR GAUTAM.

I would like to express my deepest gratitude to Dr. S.K. Bhatnagar, V.C, Dr. Ram Manohar Lohiya
National Law University, for providing this wonderful opportunity to carry out research on this
significant topic.

I would like to thank DR. PREM KUMAR GAUTAM, Assistant Professor of Law, National Law
University Luck now, for giving us the freedom to research on the topic in whatever way we deemed
fit, and for giving us valuable information and advice regarding the same. Sir continuous support and
guidance throughout the course of preparing this project has been a morale-booster and has made me
work harder.

I would also like to thank everyone – teachers, family and peers – for giving me valuable information
and helping me formulate ideas through stimulating discussions and a cohesive work environment to
turn my ideas and stray thoughts into this coherent research paper.
INTRODUCTION

During the conflicts in the former Yugoslavia much media attention focused on the men (and
women) being held by armed groups in prison camps and detention facilities. Images of men
imprisoned behind barbed wired and living in deplorable conditions was a central aspect of
this media coverage. While the men at the centre of these images were identified as being
both civilians and military personnel at the time of their capture, the influential Bassiouni
Report confirms that military personnel were held in large numbers in prison camps1. The
Bassiouni Report describes that there was a ‘large number of purposeful and indiscriminate
killings committed against civilians and prisoners of war, both inside and outside of detention
facilities’. Although the prevalence and patterns of the unlawful treatment of prisoners of war
varied between the camps established by the different parties to the conflict, the Bassiouni
Report determines that ‘military personnel were targeted for destruction’ as a category of
persons.

Specifically, it explores the legal regulation of crimes committed against this category of
persons, and how POW victims of unlawful killing appear within the different categories of
cases heard by the International Criminal Tribunal for the former Yugoslavia (ICTY) and the
War Crimes Chamber of Bosnia and Herzegovina (BWCC)2. As I have argued elsewhere, few
cases heard by the ICTY involve the unlawful killing of POWs. However, there have been
no similar analyses of cases involving POWs as victims heard by the BWCC. Nor have there
been any comparative analyses that consider the legal regulation of this form of criminal
conduct by these different mechanisms of criminal justice that both work to found
accountability for crimes committed during the conflict. In order to begin to address these
gaps, this paper examines the completed cases heard by these institutions that involve the
unlawful killing of POWs to consider the patterns of prosecution of each of these institutions,
and their similarities and differences. The ICTY has tried, or is in the process of trying, the
highest-level accused charged with violations of humanitarian law committed during the
1
Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780
(1992), UN Doc. S/1994/674 (1994) [hereinafter ‘Bassiouni Report’]. As cited on
https://www.icrc.org/en/doc/war-and-law/protected-persons/prisoners-war/overview-detainees-
protected-persons.htm
2
‘The Gender of Transitional Justice: Law, Sexual Violence and the International Criminal Tribunal
for the former Yugoslavia,’ The International Journal of Transitional Justice 1 (2007): 411-432. As
cited in https://www.icrc.org/en/doc/war-and-law/protected-persons/prisoners-war/overview-
detainees-protected-persons.htm
conflict. In contrast, with a few exceptions, the BWCC has tried ‘less complex’ cases
involving ‘suspects at lower levels of the military, police or political hierarchy3’. This
analysis suggests that there is an emerging problem of cases involving POWs as the victims
of unlawful killing being represented as ‘less serious’ cases than those involving other
categories of victims.

Background: The ICTY and BWCC

Established while the conflict was still ongoing in the former Yugoslavia, the mandate of the
ICTY is to ‘bring to justice those responsible for serious violations of international
humanitarian law committed in the former Yugoslavia since 1991 and thus contribute to the
restoration and maintenance of peace in the region4’. This ad hoc tribunal has authority to
prosecute and try individuals on four categories of offences: grave breaches of the 1949
Geneva Conventions, violations of the laws or customs of war, genocide and crimes against
humanity. The ICTY has indicted 161 persons for such violations and completed proceedings
for 113 persons to date. As part of its ‘completion strategy,’ the ICTY has transferred 13
persons to national courts in the region for adjudication of their alleged crimes. Through its
trial adjudications, the ICTY has proven beyond reasonable doubt that the mass killings at
Srebrenica was genocide, that the Bosnian Serb forces inflicted ‘terror’ against the civilian
population of Sarajevo through a campaign of sniping and shelling and of the perpetration of
mass killings of civilians and POWs and other methods of persecution within the notorious
camps of Omarska, Keraterm and Foča, amongst others.

In contrast to the ICTY, the BWCC figures as a permanent mechanism of criminal justice for
founding accountability of the perpetrators of violations of humanitarian law during the
conflict. Formally opened in 2005, the BWCC comprises Section I of the Court of Bosnia and
Herzegovina. It hears cases brought by the Special Department for War Crimes of the
Prosecutor’s Office of BiH (Special Department) relating to war crimes committed on the
territory of Bosnia and Herzegovina during the armed conflict from 1992 until 19955 Of the
courts in BiH that try war crimes cases, the BWCC has heard the greatest number of cases to

3
Bogdan Ivanišević, The War Crimes Chamber in Bosnia and Herzegovina: From Hybrid to Domestic
Court (New York: International Center for Transitional Justice, 2008), 10
4
ICTY, ‘Mandate and Jurisdiction,’ http://www.icty.org/sid/320 (accessed 20 march 2019).
5
For the activities of the Special Department for War Crimes see
http://www.tuzilastvobih.gov.ba/?opcija=sadrzaj&kat=2&id=4&jezik=e (accessed 20 march
2019).
date, and received the highest number of transfer cases from the ICTY (all of which are now
completed). In similarity to the ICTY, it holds jurisdiction over war crimes, crimes against
humanity and genocide as set out in the Criminal Code of Bosnia and Herzegovina. Over
time, a ‘horizontal working relationship’ has been developed between the BWCC and the
ICTY6. In particular, there has been the establishment of links between the courts on issues
such as the access and transfer of public and confidential materials and information, specific
case files, certification issues of evidence and organising video links with protected
witnesses. While concerns have been raised as to the types of cases being indicted by the
Special Department, the BWCC has been praised for bringing a significant number of cases
to adjudication and judgement, and for its timely processing of war crimes cases7.

The Legal Regulation of Crimes Committed against POWs

The rules of international humanitarian law prohibit the intentional and deliberate killing of
both civilians and prisoners of war (POWs). Hayashi points out that ‘international
humanitarian law calls upon individual combatants to determine the legal status of their
opponents and direct their military activities accordingly’ 8. During the conduct of armed
conflict, that legal status of the potential targets of military action figures as either civilian or
combatant (military personnel). Civilians are all persons who are not combatants. This
category of persons is ‘not allowed to participate actively in the fighting; if they do, they lose
their status as civilians’. In turn, civilians may not be the object of an intentional direct attack
– military operations should be directed solely against military objectives. In contrast,
military personnel are permitted to take a direct part in hostilities and, as such, they may be
attacked. However, the rules relating to the legitimate attack of military personnel do not
allow for such an attack in all situations and circumstances during a conflict situation. The
rules of humanitarian law determine that military personnel are afforded the status of POW

6
Alejandro Chehtman, ‘Developing Bosnia and Herzegovina’s Capacity to Process War Crimes
Cases: Critical Notes on a “Success Story,”’ 9 Journal of International Criminal Justice 9 (2011):
570.
7
Claire Garbett, ‘Transitional Justice and “National Ownership”: An Assessment of the Institutional
Development of the War Crimes Chamber of Bosnia and Herzegovina,’ Human Rights Review (2012)
DOI
8
Nobu Hayashi, ‘The Role of Judges in Identifying the Status of Combatants,’ Acta Societatis
Martensis
2 (2006): 69.
when they fall into the hands of the adversary during an international armed conflict, most
typically, upon their surrender to the enemy or through their capture by opposing forces.9 As
Rogers describes, the ‘general rule is that members of the enemy armed forces, other than
medical personnel and chaplains, are entitled to prisoner-of-war status on capture’.

Prisoners of war thus constitute a category of ‘protected persons’ under the rules of
international humanitarian law. Formal provisions on POWs are primarily regulated by the
Hague Regulations of 1899 and 1907, the 1929 Geneva Conventions Relative to the
Treatment of Prisoners of War, Geneva Convention III of 1949 and Additional Protocol I,
and are limited to international armed conflicts.26 The protection and humane treatment of
prisoners of war ‘is rooted in the realization that captured combatants no longer pose any
threat to the lives of the persons that capture them nor to their army’ Broadly put, POWs
‘cannot be killed, used as human shields, held hostage, or used to clear landmines’ during the
course of an international armed conflict.28 They ‘should be protected against acts of violence
or intimidations and against insults and public curiosity’. Measures of reprisals against
prisoners of war are prohibited. These particular acts of violence are prohibited against this
particular category of persons within an international armed conflict. As such, these acts
constitute crimes of war that may be subject to the legal processes of accountability
mechanisms of criminal justice. In the case of the conflict in the former Yugoslavia, these
mechanisms include the ICTY and the BWCC, alongside the other regional courts of Bosnia
and Herzegovina (BiH), Croatia, Serbia and Montenegro

Cases involving Crimes against POWs

 The ICTY

As of 1 February 2012, the ICTY has completed proceedings in 49 cases. Of these cases, 6
include charges that involve POWs as the victims of unlawful killing10. While these cases all
involve POWs, their indictments and judgements variously describe the victims as POWs,
‘captured soldiers’, ‘surrendered soldiers’ and ‘imprisoned soldiers’. Four of these cases

9
Horst Fischer, ‘The Protection of Prisoners of War,’ in The Handbook of Humanitarian Law in
Armed Conflicts, ed. Dieter Fleck (Oxford: Oxford University Press, 1995), 321.

10
It should be noted that other cases heard by the ICTY include charges involving other acts
committed against POWs, for example, of torture or inhumane treatment
involve HVO soldiers, that is, members of the Croat Defense Council as the victims of the
events under adjudication, and two cases involve Bosniak military personnel as the victims of
the accused.

 The BWCC

To date, the BWCC has completed proceedings in 81 cases through the rendering of a Final
Verdict. Of these, nine cases completed by the BWCC involve charges of ‘War Crimes
against Prisoners of War’ as either the sole basis of the indictment, or in conjunction with
other charges. Of these cases, seven involve charges relating to the unlawful killing of POWs
with the other cases involving other acts of violence committed against this category of
persons in contravention of the Bosnian Criminal Code. These seven cases charge the
accused with the unlawful killing of members of the parties to the conflict, including the
Army of Republic of BiH, the Army of the Serb Republic of BiH, the Croat Defense Council
and the Army of Srpska Krajina.

A further six cases that involve charges of genocide also include acts of the unlawful
killing of POWs. These cases all involve the unlawful killing of Bosniak male persons, both
civilians and prisoners of war, during the events of Srebrenica. Several of these cases involve
multiple accused charged with these crimes. Overall then, 13 cases completed by the BWCC
include charges of the unlawful killing of POWs.

CASE OF ABHINANDAN

The POWs cannot be exposed to physical injury or to medicinal or scientific experiments of

any kind which are not acceptable by the medical, dental or hospital, which is healing the
POW in question. It also disallows POWs from being intimidated and outraged and or be
subjected to public.

The Indian government said, "India also strongly objected to Pakistan's vulgar display of
injured personnel of the Indian Air Force in violation of all norms of International
Humanitarian Law and the Geneva Convention. It was made clear that Pakistan would be
well advised to ensure that no harm comes to the Indian defence personnel in its custody.
India also expects his immediate and safe return."
If the POW declines to reply to any question by the opposite party, the POW must not
be exposed, offended, or exposed to any hostile or disadvantageous treatment. POW if
injured must be given for medical treatment. It also states that all personal things except for
military kit and military documents must remain with the POW. The POW must always have
identity papers on his or her person. POWs must be moved to a place far away from the place
of capture and the evacuation must be done in a humane way.

The definition of a prisoner of war is in Article 4 of the Third Geneva Convention relative to
the Treatment of Prisoners of War [GC (III)]. Per Article 4 (A)(1), prisoners of war are

“…persons belonging to one of the following categories, who have fallen into the power of
the enemy: (1) Members of the armed forces of a Party to the conflict as well as (2) members
of militias or volunteer corps forming part of such armed forces.”

Wing Commander Varthaman is a member of the armed forces of a Party to the conflict –
being an officer of the Indian Air Force – and therefore falls within this definition of a
prisoner of war. As such, he must be accorded all the protections available under the Geneva
Conventions.

Article 5 of GC III then details the scope of application of the convention i.e. it

“…shall apply to the persons referred to in Article 4 from the time they fall into the power of
the enemy and until their final release and repatriation.”

This means that at the time of capture and until final release, the obligations under the
conventions will continue to apply in all circumstances.

Though there is no official declaration of 'war' from either country but the answer to the
question remains, yes. International Law doesn't require 'declared war' in order to classify the
conflict as international and consequently, begin the application of International
Humanitarian Law (IHL).
History of POWs captured in Pakistan11

During the 1999 Kargil War, Flight Lieutenant K Nachiketa was a 26-year-old fighter pilot,
who was consigned with the task of striking Pakistani posts in Kargil at altitudes in excess of
17,000 feet. He was captured by Pakistani armed forces.

Nachiketa was flying a MiG-27 fighter bomber, which blazed out during airborne actions,
crashed and dropped into PoK. Nachiketa was a POW for eight days and was in the custody
of Pakistan. After his return, he had exposed how he was physically and mentally tortured by
Pakistani forces. In an interview, Nachiketa had said, "The torture was quite bad. There
comes a point where you think 'death is simpler,' but fortunately for me, the third-degree part,
which is the last part, didn't start for me."

Whereas the other Indian defence personnel, who were captured by Pakistani armed forced
throughout the Kargil war did not survive a gross breach of Geneva Conventions India has
been suffering.

In another case, Captain Saurabh Kalia and five other Indian warriors – Sepoys Arjun Ram,
Bhanwar Lal Bagaria, Bhika Ram, Moola Ram and Naresh Singh – were tortured
in Pakistan's custody. Their mutilated bodies were handed over to India after 15 days.

Geneva Convention12

What is the Geneva Convention?

The Geneva Conventions are a set of international treaties agreed to between 1864 and 1949 that
establish the standards of international law for humanitarian treatment in case of war.

The conventions ensure that warring nations conduct themselves in a humane way with non-
combatants such as civilians and medical personnel, as well as with combatants no longer actively
engaged in fighting, such as prisoners of war and wounded or sick soldiers.

11
https://timesofindia.indiatimes.com/india/what-is-the-fate-of-prisoners-of-war-captured-by-pakistan-
during-the-indo-pak-1971-war/articleshow/68257081.cms
12
https://www.news18.com/news/india/how-can-india-bring-back-iaf-pilot-captured-by-pakistan-and-will-
the-geneva-convention-help-2050773.html
How many treaties are there under the Convention?

Overall, the Geneva Conventions comprise four treaties and three additional protocols.
First Geneva Convention: First adopted in 1864 then finally in 1949, the convention deals with
the treatment of wounded and sick armed forces in the field.
Second Geneva Convention: First adopted in 1949 and successor of the Hague Convention of
1907, the convention deals with the sick, wounded and shipwrecked members of armed forces at
sea.
Third Geneva Convention: First adopted in 1929 and revised in 1949, the convention deals with
the treatment of prisoners of war during times of conflict.
Fourth Geneva Convention: First adopted in 1949, based on parts of the Hague Convention, the
convention deals with the treatment of civilians and their protection during wartime.
The three additional protocols are as follows:
Protocol I (1977): It relates to the protection of victims of international armed conflicts.
Protocol II (1977): It relates to the protection of victims of non-international armed conflicts.
Protocol III (2005): It relates to the adoption of an additional distinctive emblem.

The whole set of conventions, with two revised and adopted and the second and fourth added, are
together referred to as the Geneva Conventions of 1949 or simply Geneva Conventions.
How many countries ratified the agreement?

The Geneva Conventions of 1949 were ratified, in whole or with reservations, by 196 countries
across the world.
When are the conventions applicable?

The Geneva Conventions apply at times of war and armed conflict to governments who have
ratified its terms. The further details of the applicability of the conventions have been explained in
the following two common articles:
Common Article 2: Relating to international armed conflicts

- The provisions of the article state that the Geneva Conventions apply to all cases of international
conflict, where at least one of the warring nations have ratified the Conventions.

- The Conventions apply to all cases of declared war between signatory nations.

- The Conventions also apply to all cases of armed conflict between two or more signatory nations,
even in the absence of a declaration of war.

- They also apply to a signatory nation even if the opposing nation is not a signatory, but only if the
opposing nation accepts and applies the provisions of the Conventions.
Common Article 3: Relating to non-international armed conflict

- The provisions of the article state that the certain minimum rules of war apply to armed conflicts
where at least one party is not a state.

- It applies to conflicts between the government and rebel forces, or between two rebel forces, or to
other conflicts that have all the characteristics of war, whether carried out within the confines of
one country or not.

- The provisions of this article state that persons taking no active part in the hostilities, including
members of armed forces who have laid down their arms and those overcome by sickness, wounds,
detention, or any other cause, shall in all circumstances be treated humanely.
The wounded and sick shall be collected and cared for. To ensure the same, the following acts
are prohibited:

• Violence to life and person, in particular, murder of all kinds, mutilation, cruel treatment and
torture.

• Taking of hostages.

• Outrages upon dignity, in particular, humiliating and degrading treatment.

• The passing of sentences and the carrying out of executions without previous judgment
pronounced by a regularly constituted court.

Rights of Prisoners of War

Under the Third Geneva Convention, prisoners of war (POW) must be:

• Treated humanely with respect for their persons and their honor.

• Able to inform their next of kin and the International Committee of the Red Cross of their
capture.

• Allowed to communicate regularly with relatives and receive packages.

• Given adequate food, clothing, housing, and medical attention.

• Paid for work done and not forced to do work that is dangerous, unhealthy or degrading.

• Released quickly after conflicts end.

• Not compelled to give any information except for the name, age, rank, and service number.
Refusal to answer questions should not invite punishment.

• In addition, if wounded or sick on the battlefield, the prisoner will receive help from the
International Committee of the Red Cross.

• Further, the use of PoWs as hostages or human shields is strictly prohibited.

Is the captured Indian pilot a prisoner of war?
While neither India nor Pakistan has named the current situation as war or identified the pilot as
a prisoner of war, the Geneva Conventions apply to all cases of armed conflict between two or
more signatory nations, even in the absence of a declaration of war.

Going by the same, the Indian pilot can be identified as a prisoner of war, even though he hasn’t
been officially named as such. Hence, his treatment also should be in accordance with the
provisions for PoWs under the Geneva Conventions.
What do the conventions say about the release of PoW?

According to Article 118 of the third Geneva Convention, prisoners of war shall be released and
repatriated without delay when the hostilities between the two nations end and any unjustifiable
delay in the repatriation of the prisoner of war will be a grave breach of the Protocol.
Who is responsible for ensuring whether the Geneva Conventions are being followed?

The Geneva Conventions have a system of “Protecting Powers” who ensure that the provisions
of the conventions are being followed by the parties in a conflict. Each side must designate
states that are not party to the conflict as their “Protecting Powers”. In practice, the International
Committee of the Red Cross usually plays the role.

The conventions were, in fact, established as a result of Red Cross founder Henri Dunant
pushing for negotiations to help the wounded in time of war in 1864.
CONCLUSION

The Convention Relating to Prisoners of war 1949 or commonly known as the third Geneva
Convention has proven to be the “Bible” for the prisoners of war. The ill experiences of the
second World War and the collective hue and cry amongst the peacekeepers regarding the
human rights violations that occurred during this period as regards the prisoners of war
,made it the need of the hour that certain necessary and indispensible safeguards must be
enacted for them. The result of this deliberation was the Third Geneva Convention which laid
down a large number of rights for the war captives. But as we all know, the biggest problem
isn’t “THE LAW” but “ITS IMPLEMENTATION”. Though, the convention has necessarily
provided for a wide range of rights but we can see the powerful states making a complete
mockery out of it. The most glaring example is that of the infamous Guantanamo Bay which
has been referred to as the “Gulag of our times” by the Amnesty International. It has been
reported that the Prisoners aren’t even provided with the Basic of protections as provided
under the common Article 3 of the Geneva Conventions. Moreover, in the present era we
can see different militant groups like Boko Haram and ISIS taking war captives and bluntly
refusing to observe the safeguards as provided under the Geneva convention to the extent that
they even entertain the public execution of these prisoners of war so that a stern message can
be sent round the globe.

What is required is that the mere documentation of the safeguards isn’t enough. They must be
brought into actual application as well. This is only possible when the United Nations stop
acting like a “toothless dog” and take strong measures against the states who have been
continuously involved in the violation of the safeguards provided to these victims of war. The
situation is so lethargic that these prisoners of war are not even provided with the basic of
amenities like food and water. An example is required to be set up and it is possible only
when the UN takes action against the states violating the laws so that it may set a precedent
requiring the states to act in the manner provided in the conventions.
BIBLIOGRAPHY

 https://www.jagranjosh.com/current-affairs/geneva-convention-treatment-and-release-
of-prisoners-of-war-1551341029-1
 https://www.livemint.com/news/india/for-prisoners-of-war-the-fear-is-of-the-
unknown-says-former-pow-cariappa-1551320475776.html
 Mathew, and Nina. Do the Geneva Conventions Matter? 1st ed., Oxford University Press, 2017.

 https://papers.ssrn.com/sol3/papers.cfm?paper_id=2263664