India – China Conflict, POWs and the IHL Selectivity Redux

[Aakash Chandran (@ChandranAakash) and Varun Nambiar are Delhi based lawyers and researchers. They each hold an LL.M. in International Law from the Faculty of Legal Studies, South Asian University, New Delhi, India.]

In June earlier this year, the Line of Actual Control (LAC), the disputed border between India and China caught the attention of the world amidst the COVID-19 pandemic. The Indian and Chinese Army engaged in a violent face-off in the Galwan Valley of the Ladakh. While the military stand-off between the two sides began early May with massive border build-ups, the June 15^th incident occurred amidst ‘de-escalation’ and was the first combat fatalities between the two militaries in over four decades. The clash saw no use of firearms because of existing bilateral agreements (1996 and 2005), which prohibit the use of force along the LAC. Instead, the men battled it out hand-to-hand using rocks, wielding fence posts, and the barbed wired clubs resulting in multiple casualties and serious injuries on both sides. India acknowledged the death of 20 Indian soldiers, out of which some died due to wounds suffered in hand-to-hand combat, whereas others were found dead by falling into the Galwan river in the western Himalayas. According to media reports, the Chinese suffered human losses as well but without any official record by the government, the number remains unspecified.

Despite the violent engagement between the two armies, the military standoff was not viewed as an armed conflict, let alone an international armed conflict (IAC) in India. The only exception was a blog-post by Prof. Srinivas Burra and Haaris Jamil, in which they rightly held an armed conflict to be existing between the two countries based on the physical altercation and brutal use of force by the armed forces. In this post, we want to highlight the overlooked fact of the detention of Indian soldiers by the Chinese and the Indian government’s reluctance to invoke international humanitarian law (IHL).

International Armed Conflict and Indian POWs

Following the deadly clash between the two sides, multiple reports started flooding in of 10 Indian soldiers including two senior officers having been taken into custody by the Chinese military. The soldiers went missing near Patrolling Point 14 of the Valley after a deadly overnight clash with the Chinese troops. The frontier skirmish triggered a series of high level diplomatic and military talks to secure their release and diffuse the border flare-up. Interestingly, the Indian government did not issue a formal acknowledgment of the missing soldiers’ status. The Indian soldiers were only released on June 18^th by the Chinese pursuant to the ongoing Major-General level talks. The release was facilitated in accordance with Article VIII (1) of the 1996 Bilateral Agreement on ‘Confidence-Building Measures in the Military Field Along the Line of Actual Control in the India-China Border Areas’. However, the Indian Army maintained that ‘no solider was missing in action’ and a similar position was reflected in the statement made by the Chinese Foreign Ministry spokesman, in which he stated that ‘China hasn’t seized any Indian personnel’. Although no official statement was released by the Chinese side, the media reports pointed  to Chinese soldiers being detained by Indian forces during the skirmish. These Chinese soldiers are said to have been returned in good faith the very next day by the Indian army. During the three days period (15^th to 18^th June), no information was provided on the whereabouts of the Indian soldiers. In the highly militarised and border-obsessive countries, the reluctance of both governments to publicly accept the detention of the uniformed men makes it all seem kafkaesque.

While both countries did not recognise the Galwan clashes as ‘war’ and continued to reflect on the situation as a mere ‘incident of crossing over the border’, the factual situation on the ground attracted the invocation and application of IHL. Common Article 2 of the Geneva Conventions 1949 states that “…the present 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 recognised by one of them”. According to the International Committee of Red Cross (ICRC), an armed conflict occurs when the armed forces of two States intervene with hostile intent (Para. 252). Here, the fact that the armed forces of India and China clashed aggressively with each other while making a claim over the territory along the international border meets the classification requirement of an IAC. The two sides continue to blame each other for the border stand-off and alleged violations of the agreed de-escalation plan, but for the Geneva Conventions, it is immaterial what caused the conflict. Similarly, neither the duration of the clash (which took place on the intervening night of 15^th-16^th June) nor does the intensity of the hostilities (fist-fighting, nail rods, etc) affect the classification of the conflict.

In fact, the very act of detention of the combatants of the enemy State activates the application of the Geneva Conventions and characterises the conflict as an IAC. The de facto detention of 20 Indian soldiers by the Chinese mandates their recognition as prisoners of war (Article 4A(1) GC III).  The ICRC maintains its position that the Third Geneva Convention comes into play as soon as members of the armed personnel of a State have fallen into the hands of a hostile State. The mere fact that the enemy State exercises some control over the detainees would automatically cement their status as POWs. Therefore, the protection accorded to the detainees by the GCs begins the moment they fall into the enemy’s hands and lasts until the time they are released or repatriated. With the ongoing efforts aimed at achieving mutual military disengagement and de-escalation, both sides have avoided fresh clashes. Although both sides have deployed large number of military personnel and equipment along the LAC, the situation on the ground has led to the suspension, if not the termination, of hostilities.

While it is uncertain whether the Chinese authorities formally informed the Indian government of the detained officers who crossed over the LAC, it is irrefutable that China, as the detaining power, was under the obligation to report the members of enemy armed forces who have fallen into their hands (Article 122, GC III). The failure to notify materially affects the right of the families to know about their captured kin and dilutes the check against the detainee disappearance. Moreover, such a refusal materially affects the POWs’ honor, as protected by Article 14 GC III. The obligation to respect the ‘person and honor’ would necessitate a formal acceptance of the fallen POWs as otherwise, their position remains vulnerable in the hands of the adversary. It is so because, in the absence of the POW status, the combatants can be tried by the enemy State for actively taking part in hostilities. It also weakens the possibility of holding the enemy State responsible for internationally wrongful acts in breach of the GCs. While it is unknown if the detained soldiers were harmed in any manner in detention, as the official transcripts of their debriefing remain confidential, the silence surrounding the capture and release of the Indian soldiers remains troubling.

It is incumbent upon the Indian government to ensure the Chinese act in consonance with their obligations under the Geneva Conventions. Common Article 1 mandates each High Contracting Party ‘to respect and to ensure respect for the present Convention in all circumstances’. According to ICRC, this includes ‘an obligation to prevent violations when there is a foreseeable risk that they will be committed and to prevent further violations in case they have already occurred’. In the present case, the Indian government should have admitted the detainment of its soldiers by the Chinese and asserted the application of humanitarian law to accord POW protection to the detained soldiers. This wilful disregard of IHL obligations comes in direct contrast to how the Indian government responded to the capture of an Indian Air Force Pilot by Pakistan in 2019. The Ministry of External Affairs (MEA) had categorically acknowledged the solider as missing in action and under Pakistani custody. It further reminded Pakistani authorities of the binding obligations of the GCs and IHL. In the similar vein, the Indian media reportage of the issue was couched in the vocabulary of the Geneva Conventions’.  This selective recourse and application of jus in bello results in (domestic) politicisation of international law and halts the formation of uniform state practice.

Missing Indian Porters and Their POW Status

An equally striking example of both governments choosing to overlook the application of IHL has emerged earlier this month. It was reported on 5^th September that 5 Indian civilian porters ferrying supplies to troops stationed near the eastern frontier with China, in the State of Arunachal Pradesh, went missing. On 8^th September, the Indian government confirmed that the missing men were in Chinese custody. While an Indian federal minister stated that both countries were working to facilitate a ‘handover,’ neither side declared that the individuals detained enjoyed POW status. The detained porters were released on 12^th September. So far, however, neither government has acknowledged that they were POWs.

It is a settled IHL principle that persons who accompany the armed forces of a State during an IAC without actually being members thereof are entitled to POW status. Article 4(4) of GC III extends POW status to, among others, “[…]supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany…”. The provision also imposes an obligation on the Contracting Parties to issue identity cards to such persons. It is unclear whether the civilian porters, in this case, were carrying identity cards issued by the Indian armed forces. The absence of identity cards, however, cannot be a criterion to deny POW status. The possession of an identity card is not an indispensable condition of the right to be treated as a POW, but a supplementary safeguard.

Arunachal Pradesh is located on the far-eastern portion of the 2,659 km-long India-China frontier. Although the region has witnessed heavy fighting in the past, this section of the border has been peaceful, even as the two militaries square off in distant Ladakh. The lack of active hostilities or a confrontation along this section of the frontier does not mean that the detained porters were not POWs.

Jurisprudence from the International Criminal Tribunal for the former Yugoslavia (ICTY) has indicated that international armed conflicts are not necessarily limited to the region where hostilities occur. The geographical scope for the application of IHL in such cases is broader than the region in which hostilities are occurring. In Tadic, the tribunal noted that at least some of the provisions of the Geneva Conventions apply to the entire territory of the Parties to the conflict, not just to the vicinity of actual hostilities. (Para. 68). It identified provisions related to the protection of prisoners of war and civilians as particularly amenable to application beyond the vicinity of actual hostilities. Until a general conclusion of peace is reached, IHL continues to apply in the warring States’ whole territory during an IAC. (Para. 70)

Common Article 1 stipulates, “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.” (emphasis added) The provision is not a mere stylistic clause; it is constitutive of imperative force and counts among the means available to ensure compliance with the Conventions. In not declaring that the detained porters enjoyed POW status, both India and China may have fallen short of the obligations incumbent upon them under the Geneva Conventions.

Conclusion

India has not shied away from relying on or invoking the Geneva Conventions in the past. Its silence on the applicability of IHL under the present circumstances is, however, a departure from established practice. Understandably, States may intentionally avoid acknowledging the existence of an IAC for fear of a domestic political backlash, internationalising a bilateral dispute, or escalating tensions. Such reticence, politically expedient as it may be, cannot wish away the factual and legal reality on the ground. Through the prism of the law, there is little doubt that an IAC does exist between the two countries because of their ongoing military stand-off over the border dispute. With India and China continuing to engage with each other at the LAC, both sides must comply with IHL and make no compromises with the security and protection afforded by law to combatants and civilians alike.