Pakistan and India have fought four major wars since partition, namely those which occurred in 1947, 1965, 1971 and 1999. There was also an armed conflict between the two states in February 2019 when they engaged in aerial strikes. A residual point of contention between the two countries since the conflicts of 1965 and 1971 has been the issue of prisoners of war which have not been repatriated after the cessation of hostilities. India has accused Pakistan of detaining 54 prisoners of war which have not been repatriated, while Pakistan states that 18 of its prisoners of war have never been returned home. This matter has now dragged on for decades with no seeming reprieve for the families of those missing. This article analyses the law applicable to prisoners of war during and after hostilities, the issue of these missing prisoners of wars and possible avenues for resolving this controversy.
Who are Prisoners of War?
Under International Humanitarian law, individuals have the primary status of either civilian or combatant. This status determines their secondary status upon capture – once they fall into the hands of the adversary, combatants become prisoners of war (PoWs) whereas civilians become protected persons.[1] Their status determines the legal rules and privileges they are accorded under the laws of war. The Third Geneva Convention governs the treatment of PoWs and defines them as, inter alia, those who are members of the armed forces of a party to the conflict who fulfil the following conditions:
(a) that of being commanded by a person responsible for his subordinates;
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of war.[2]
Combatants enjoy the privilege of being able to directly participate in hostilities, therefore, they cannot be prosecuted for lawful acts of war unless they commit war crimes. According to the Third Geneva Convention, the purpose of detaining PoWs is to impede their engagement in war; therefore, if not prosecuted for war crimes, they must be repatriated after the cessation of hostilities.[3]
General Rights of Prisoners of War
The Convention sets forth rights for the treatment and protection of PoWs. The enemy power is obligated to treat these prisoners humanely, secure them from combat, and is prohibited from torturing them.[4] Once captured, a PoW when questioned is bound to give only their surname, first names and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent information.[5] The prisoners are also to be provided with regular rations of food sufficient in quantity, quality and variety to keep them in good health,[6] in addition to proper clothing,[7] and all measures should be taken to ensure clean camps with any medical treatment as needed.[8] Additionally, they are allowed to keep their non-weaponry possessions, including their identity documents, with them to avoid a situation arising where there are unidentified prisoners.[9] Moreover, such individuals can maintain contact with their families through letters informing them about their detention and health conditions.[10] Dead prisoners are to be buried according to the religious rites and their death certificates shall be issued to maintain their records.[11]
The most important provision for our purposes is Article 118 which states that PoWs are to be released and repatriated without delay after the cessation of active hostilities. Additionally, those serving their sentence in lieu of disciplinary proceedings shall be returned at the end of such punishment, although the enemy power shall convey their identities to the opposing power.[12] A matter of contention is the issue of when active hostilities are considered to have ceased after which repatriation is to be begun.[13] One approach, which is also mentioned in the provision, is the signing of a peace agreement marking the cessation of hostilities and repatriation can then proceed according to treaty terms. Additionally, the assistance of a neutral power can be taken who would oversee the end of hostilities and the process of repatriation. Furthermore, countries can also seek the aid of the International Committee of the Red Cross (ICRC) which is dedicated to ensuring compliance with International Humanitarian Law during and after active conflict.
India and Pakistan’s Prisoners of War
In the case of the two relevant conflicts between Pakistan and India, those of 1965 and 1971, peace treaties were signed after both wars. The first was the Tashkent Declaration 1966, which instructed the respective authorities to repatriate such prisoners.[14] The second was the Simla Agreement 1972, according to which State representatives were to discuss the arrangement of war prisoners’ repatriation.[15] Both agreements signal the end to hostilities after which both states were obligated to repatriate prisoners. Moreover, on December 21, 1971, the UN Security Council of the United Nations noted that a cease fire and a cessation of hostilities prevailed between India and Pakistan.[16] Therefore, the obligation to repatriate PoWs applied to both states on this date.
PoWs were repatriated following these agreements. For example, on 2nd February 1965 in Husainiwala, there was an exchange of prisoners,[17] and there was also a return of approximately 93,000 Pakistani prisoners from India and 600 Indian prisoners from Pakistan after the 1971 war.[18] However, numerous sources strongly suspect that 18 Pakistani and 54 Indian PoWs from the two wars are still not repatriated.[19] The failure to repatriate PoWs after the cessation of active hostilities is a violation of International Humanitarian law, however, even after so many decades there is little clarity as to how many and where these PoWs could be. This is all the more so since both states have adopted inconsistent and bizarre stances on the issue.
India
India finally published a list of the missing PoWs in 1978, with their preferred approach being to negotiate behind closed doors for their release.[20] However, confusingly, in two affidavits before a local Indian court in the early 1990s, the Indian government had stated that 15 of the 54 had been confirmed to have been killed.[21] Yet the state continues to state that all 54 are missing. The families took the case to the Indian Supreme Court in 2015, however, the Indian Ministry of Defence submitted an affidavit declaring it had no details regarding the 54 PoWs.[22] In July 2020, Indian Prime Minister Modi told Parliament that there were 83 Indian soldiers, including the missing 54 in Pakistani custody.[23] The families have also approached the UN and the ICRC trying to obtain information as to the whereabouts of their family members but to no avail.[24]
Pakistan
Pakistan has equally adopted a puzzling stance to these missing PoWs. In 1982, Zia-ul-Haq visited India agreed to allow six of the families of the PoWs consular access to the prisons where it was suspected the missing PoWs were held; however, they found no signs of their missing family members.[25] The Pakistani state then denied their existence until 1989, when Prime Minister Benazir Bhutto informed Indian officials that the men were in fact in Pakistan’s custody.[26] Musharraf would later deny this stating that there were no Indian PoWs in Pakistan.[27] Media reports and other accounts have also alluded to the existence of these prisoners and their presence, however, no concrete evidence has yet been found.[28] In 2010, a Pakistani prisoner returned home who stated that there were Pakistani prisoners in India’s custody; additionally, Chief Justice Iftikhar Chaudhry ordered the interior ministry to find out further details about the matter, however, a letter written to Pakistan’s High Commission in New Delhi did not receive a response.[29]
The ICRC has decided to keep its records of the war of 1971 confidential until 2035 indicating that the details are too sensitive to be made public.[30]
Possible Solutions
According to the Third Geneva Convention, the ICRC is to be informed about any PoWs and has the power to explore and investigate the state of affairs of these missing prisoners of war.[31] Moreover, each state is also to establish an Information Bureau which contains and conveys the information of each PoW to the concerned powers.[32] More than enough time, over five decades, has passed to repatriate these individuals if they indeed existed and are alive. Moreover, if these individuals are dead then as per the Convention, the authorities in play should have their death certificates. In order to provide information to the families so they can have some closure regarding their loved ones as to whether they are alive or dead or unaccounted for, both states should allow the ICRC to establish an Information Bureau by mutual consent. This Bureau must be given access to prisons where it is suspected the missing PoWs may be located. The families should be informed of any such visit and allowed access to all Bureau reports. If these PoWs are in fact missing and in both state’s custody, it is time they were brought home.
Conclusion
Article 118 of the Third Geneva Convention obliges states to repatriate PoWs after the cessation of hostilities. It was intended to outlaw in-humanitarian practices after the Second World War under which PoWs were indefinitely detained after hostilities ceased.[33] International Humanitarian law protects PoWs and their families who have a right to know what has happened to their loved ones. Both India and Pakistan need to come together and work with the ICRC in order to honour this commitment to enemy soldiers based on the principle of human dignity and reciprocity.
References
[1] Prisoners of War are regulated by the Third Geneva Convention while the Fourth Geneva Convention regulates the treatment of civilians and protected persons.
[2] Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention) (adopted 12 August 1949 entered into force 21 October 1950) 75 UNTS 135 (GC III), art 4.
[3] ‘Prisoners of war and detainees protected under international humanitarian law’ (ICRC, 29 October 2010) <https://www.icrc.org/en/doc/war-and-law/protected-persons/prisoners-war/overview-detainees-protected-persons.htm> Accessed 9 September 2021.
[4] GC III (n 2) art 13.
[5] ibid art 17.
[6] ibid art 26.
[7] ibid art 27.
[8] ibid arts 29-30.
[9] ibid art 18.
[10] ibid art 70.
[11] ibid art 120.
[12] ibid art 115, 119.
[13] ibid art 118.
[14] Tashkent Declaration 1966, s VII.
[15] Simla Agreement 1972, s 6.
[16] UNSC Res 307 (21 December 1971) UN Doc S/RES 307.
[17] ‘CHRONOLOGY December 1965-February 1966’ (1966) 19 (1) Pakistan Horizon 75 <www.jstor.org/stable/41393270> Accessed 18 August 2021.
[18] Alastair Sloan, ‘India, Pakistan and the 1971 War POWs’ The Diplomat (South Asia, 1 August 2015) <www.thediplomat.com/2015/08/india-pakistan-and-the-1971-war-pows/> Accessed 17 August 2021; ‘BANGLADESH—INDIA—PAKISTAN: AGREEMENT ON THE REPATRIATION OF PRISONERS OF WAR AND CIVILIAN INTERNEES’ (1974) 13 (3) International Legal Materials 501 < https://www.jstor.org/stable/20691263> Accessed 18 August 2021, 503.
[19] Azam Khan, ‘Some families still waiting for PoWs to come home’ The Express Tribune (Islamabad, 1 September 2015) < https://tribune.com.pk/story/948417/some-families-still-waiting-for-pows-to-come-home> Accessed 18 August 2021.
[20] Sloan (n 18).
[21] ibid.
[22] James Maclaren, ‘The Last Secret of the 1971 India-Pakistan War’ The Diplomat (South Asia, 14 December 2018) <https://thediplomat.com/2018/12/the-last-secret-of-the-1971-india-pakistan-war/> Accessed 13 August 2021.
[23] Soutik Biswas, ‘The mystery of India’s ‘missing 54’ soldiers’ BBC (India, 26 January 2020) <www.bbc.com/news/world-asia-india-51191199> Accessed 11 August 2020.
[24] Sloan (n 18).
[25] Maclaren (n 22).
[26] ibid.
[27] ibid.
[28] ibid.
[29] Khan (n 19).
[30] Maclaren (n 22).
[31] GC III (n 2) art 126.
[32] ibid art 122.
[33] Levie, Howard S. ‘Legal Aspects of the Continued Detention of the Pakistani Prisoners of War by India.’ (1973) 67 (3) American Journal of International Law 512, 512-515.
