Geneva Convention: Experts differ over immunity to Indian pilot

ISLAMABAD: The legal, diplomatic and military experts are divided on the application of third Geneva Convention on the Indian Air Force (IAF) pilot Abhinandan.

They, however, are unified that he should not be handed over to India until the conflict between the two states is officially resolved. Some experts believe that the IAF pilot is a Prisoner of War (PoW) and he is entitled to third Geneva Convention. Therefore, they believe he should be treated humanely and should be given food, clothing, housing and medical aid while in custody which he is entitled to under the Geneva Convention. Some experts believe that since the act of war is not declared between India and Pakistan therefore he cannot be considered a prisoner of war and Geneva Convention doesn’t apply on him.

Talking to The News, Pakistan’s former ambassador Aslam Rizvi says, Geneva Convention only applies when there is an act of war. Currently there is no war between India and Pakistan and therefore Geneva Convention doesn’t apply on IAF pilot Abhinandan. He should be treated as a normal prisoner not as a PoW.

“This is an aggression and not a war. However, dignity demands that he should be extended all the facilities which are given to prisoner of war under the Geneva Convention. Pakistan is not bound to return him under the Geneva Convention. However we can return him to India under the exchange of prisoner programme between the two countries”, commented Mr Rizvi.

He said the Indian pilot is just a prisoner. The only difference is that he is not a spy but a warrior. There are many instances even in Vietnam War when American pilots were arrested but they were not executed. They were later released under the prisoner exchange programme. “I think Pakistan will also do the same with wing commander Abhinandan,” said Mr Rizvi.

Renowned expert on international laws, Ahmer Bilal Soofi while talking to The News said Geneva Convention applies on the IAF pilot despite the fact whether war has been declared or not.

“When two conflicting armed personnel face each other in the battlefield or in the airspace this itself is an act of war. The Indian pilot should be extended all the facilities which he is entitled under the third Geneva Convention”, said Ahmer Bilal Soofi.

He said Pakistan can keep him under its custody until the conflict is resolved. When asked who will determine whether the conflict is resolved or not, Mr Soofi said, “Either both countries have to issue a joint statement that they have decided to resolve the issues on the dialogue table. Or even a unilateral statement from the aggressor state can announce the resolution of conflict. After such announcement the Indian pilot will be free to go back to India”, said Mr Soofi.

Major Gen (R) Ijaz Awan while talking to The News said the IAF Pilot Abhinandan is a soldier who was performing his bona fide duty. As a professional army this is our duty to give him his due respect and treat him well.

“Let me tell you one thing in 1965 and 1970 wars, we treated each other’s prisoners of war with respect. This has been our tradition to respect each other’s soldiers and we even recommended the name of Indian soldiers who fought well against us for conferring Medal of Honour by their respective government. In my opinion Wing Commander Abhinandan is fully entitled to all the facilities under the Geneva Convention”, commented Gen (R) Awan.

He said Pakistan should keep him under its custody until the conflict is resolved. He should not be released soon until the Indian hostilities are continued. It is pertinent to mention here that the third Geneva Convention provides a wide range of protection for prisoners of war. It defines their rights and sets down detailed rules for their treatment and eventual release. International humanitarian law (IHL) also protects other persons deprived of liberty as a result of armed conflict. The status of POW only applies in international armed conflict.

POWs cannot be prosecuted for taking a direct part in hostilities. Their detention is not a form of punishment, but only aims to prevent further participation in the conflict. They must be released and repatriated without delay after the end of hostilities. The detaining power may prosecute them for possible war crimes, but not for acts of violence that are lawful under IHL.