Did Pakistan’s photos/videos violate the Geneva Conventions…or ease a crisis?

Last week a Washington Post report about the Pakistani shootdown of an Indian fighter aircraft carried this headline: “Pakistan violated Geneva Conventions by tweeting video of captured Indian pilot, expert says.” Allow me to offer that the facts we know now can plausibly suggest a different conclusion, and that this case is yet another example where the law needs to evolve as to avoid unnecessarily using “war” rhetoric in an explosive situation between two nuclear powers.

The context

India and Pakistan have been engaged in a long-running border dispute over Kashmir that has occasionally led to clashes (the BBC has a great summary here). Recently, the Pakistan-based Islamist group Jaish-e-Mohammad claimed responsibility for a Feb 14th suicide-bomber attack that killed 40 Indian paramilitary police in a “convoy in Indian-administered Kashmir.” On Feb. 26, India “launched air strikes in Pakistani territory [in a raid] which it said targeted militant bases.” The day after those attacks, Pakistan shot down an Indian MiG-21 “during an engagement over the ceasefire line in disputed Kashmir.

The MiG 21 pilot parachuted from his disabled aircraft and found himself surrounded by a gathering crowd of unfriendly civilians. He then “ran backward, firing his pistol in the air to keep back the angry young locals,” eventually jumping into a pond, and destroying sensitive documents, in part by tearing them up and eating the pieces.

However, news reports said the pilot was attacked and injured by some of the civilians before being rescued by the Pakistani Army.

Pakistan announced the pilot’s capture, but the BBC reports that India “initially said that all of its pilots were accounted for.” As a result of that denial, the BBC says that shortly thereafter:

“Pakistan’s information ministry then released – and later deleted – a video showing the pilot blindfolded and with blood on his face. This prompted a furious Delhi to summon Islamabad’s deputy high commissioner and condemn what it called the “vulgar display of an injured personnel.”

In later footage, Wing Commander Abhinandan [Varthaman] could be seen sipping tea from a cup without a blindfold. He appeared to have been cleaned up.

He said his name, military position and that he was from “down south,” but refused to share any details when asked about his mission: “I’m not supposed to tell you that.”

The allegations

It is those videos that are the source of the allegations of Geneva Convention violations. In its story, the Post quoted my friend, Prof. Rachel VanLandingham, as follows:

VanLandingham said that not every violation of the Geneva Conventions is a war crime in itself. But what does matter in terms of violation, she said, was the purpose of releasing the video and whether the pilot was recognizable.

“Here, [there was] no military necessity to release the video, and presumably it was released with the intent to humiliate the captive and, thus, the state of India, and, thus, Pakistan is in violation of Article 13,” she said. The article is applicable because international conflict has occurred despite the lack of a formal declaration, VanLandingham added.

Rachel was bravely trying to explain a lot of complicated international law within the confines of a couple of quotes for a general readership newspaper, and I’m concerned she might be misinterpreted. For example, if you read her to say that if the videos were released with the “intent to humiliate the captive,” then a “war crime” has inevitably occurred, to my way of thinking that would be a mistake.

Although some would disagree, I believe that even if the Convention was breached (and I’m not sure it was), the appellation of a “war crime” is – and should be – reserved for much more “serious” factual circumstances than what appears to have occurred here. As I’ll discuss more below, in volatile situations – particularly between two nuclear powers – every effort should be made to avoid “war” rhetoric that could dangerously and unnecessarily inflame the citizenry on both sides.

Article 13 of the Third Geneva Convention

Why am I not convinced that the Geneva Conventions were breached? For one thing, Article 13 of the Third Geneva Convention (which is the provision in question here) does not prohibit, per se, the release of photos or videos of prisoners of war.

Here’s what Article 13 says in relevant part: “prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity.” (I do disagree with Rachel on this small point: Article 13 protects the prisoner, and not “the state of India.”)

Sure, sometimes releasing a video may constitute the “insults and public curiosity” about which the prisoner is to be protected, but not always. As Rachel indicates, one way to discern if the prohibition applies is to evaluate the “intent” behind a particular video or photo release. In his 2016 textbook on the law of armed conflict, Prof Gary Solis agrees, saying that whether or not a photo release amounts to violation “may turn on the purpose for which it was taken and the use to which it is put.”

Solis adds this important observation:

[I]t may be argued that there is an overblown sensitivity to showing any photos whatsoever of captives. As long as the camera does not linger on a particular captive, show him or her in humiliating poses or situations, or use the picture for propaganda purposes, the necessary mens rea, or culpable negligence for a criminal prosecution, is absent. Even the brief image of a prisoner’s face in the context of a legitimate informational account should not lead to concern for a prisoner’s protection under the Geneva Convention.

Rachel’s presumption (based on the information available to her at the time) was that there was an intent to “humiliate the captive” – and that is certainly one possibility. But another – and I think the more persuasive one – was that Pakistan was mainly intending to counteract the pilot’s own government’s assertion that he wasn’t a captive. Why was doing that so important? At the time, “false videos, pictures and messages circulated widely on social media, sparking anger and heightening tension in both countries.

In other words, the purpose would not be to humiliate the captive or even to satiate idle curiosity about him, but rather to clearly and authoritatively establish the facts at a precarious time for both countries. Could the Pakistanis have somehow done that in a different way? Maybe, but that doesn’t mean that showing the captive with his face obscured by a blindfold was therefore illegal. Moreover, a traditional diplomatic note or even a conventional press release by the International Committee of the Red Cross ICRC) would not likely have the same effect on the public in the social media age as do visuals.

What about the video showing Wing Commander Abhinandan calmly sipping tea and talking politely with his captors (and declining to answer certain questions as it was his duty to do)? I can readily believe that Pakistan’s intent was just to show that the pilot was in good health.  This would be another effort to de-escalate what was inarguably a very dangerous situation between two nuclear states (particularly since the pilot is the son of a retired Indian Air Marshal). And, as I discuss below, it seems to have worked.

Precedent

Let’s also consider that there is certainly precedent for releasing videos of a prisoner of war (PoW).  Even a video graphically more personal than those Pakistan showed was apparently considered acceptable by the international community because the underlying intent was something other than those denounced by Article 13.

Specifically, when Saddam Hussein was captured in December1993, a video of his medical exam was released by the U.S.-led coalition. Then Secretary of Defense Donald Rumsfeld explained the rationale this way:

[Saddam] has been handled in a professional way, and he has not been held up as a public curiosity in any demeaning way by reasonable definitions of the Geneva Convention.

On the other hand, he is an individual who is representative of a regime that has been replaced, and it’s terribly important that he be seen by the public for what he is: a captive, without question.

And if lives can be saved by physical proof that that man is off the street, out of commission, never to return, then we opt for saving lives. And in no way can that be considered even up on the edge of the Geneva Convention protections.

The identification process involved some people in his cabinet and some people in the governing council. It is not a matter of parading various people before him for the sake of curiosity. It was a matter of during that early period — prior to the time we had DNA proof — knowing that his doubles had used plastic surgery and could very well have done duplicate tattoos and bullet holes and various things that would — moles — that would make it appear they were Saddam Hussein, the decision was made to have him publicly identified. (Emphasis added.)

In the aftermath of the release of the Saddam video there were a few complaints from academics and non-governmental organizations, but even Amnesty International seemed to agree with Rumsfeld’s rationale, objecting only to the nature of the visuals released.

Their then Middle East spokesperson said: “We didn’t disagree with a picture of Saddam being released that proved his identity but not with those that showed him being medically examined.” Likewise, I am not aware of any formal objections raised by any of the participants in the 39-nation coalition, or by the UN. The ICRC made no mention of it in their discussion of Saddam’s status as a PoW.

Did the photos/video humiliate the Wing Commander?

But let’s get back to a more fundamental issue, did the photos/video in this case humiliate the Wing Commander or hold him up to untoward public scrutiny? Hardly. In fact, the effect has been almost exactly the opposite of what Article 13 fears a prisoner might suffer: not only have the photos/videos earned him the admiration of friend and foe alike, they may also have contributed to the easing of tensions in a special way.

In a March 1st story (“Meet the pilot who may have averted an India-Pakistan war”), the Washington Post reported that Wing Commander Abhinandan praised the “Pakistani army for being ‘very professional’” in its treatment of him. So what we are seeing is that not only are Indians considering him a “hero”, he also seems to have earned the respect of Pakistanis.  The ability to observe him in captivity through photos and, especially, videos, appears to have had an important ameliorating effect on the overall situation between the two countries. As the Post observed:

Even as India and Pakistan traded charges over the last two days, Varthaman’s behavior in captivity united people from both sides of the border, mostly in praise. Videos of his capture and questioning were shared by thousands on social media. Pakistani citizens joined the chorus asking their government to return Varthaman as a gesture of peace. (Emphasis added)

Thus, the evidence is pretty clear that the photos and videos in this case served to unite – at least for a time – often bitter rivals.  Surely we don’t want to condemn that as a Geneva Convention violation.  Importantly, a March 2nd article in the Wall Street Journal shows that the parties went much further than merely broadcasting snippets of video or releasing photos, but instead presented a live television broadcast of the PoW as he returned to India:

Wing Cmdr. Abhinandan Varthaman was released at the border and walked into India in a dramatic evening handover that was broadcast on television in both countries. His release lowered the immediate tensions caused by several days of back-and-forth airstrikes and his capture. (Emphasis added.)

In short, not only is there ample evidence in this case that Wing Commander Abhinandan was actually protected against the harm Article 13 of the Geneva Conventions seeks to prevent, the photos and videos have turned him into not just a heroic icon, but something of a peacemaker.

A final question: if the Wing Commander was a “prisoner of war” does that mean that India and Pakistan are at “war”? 

This is an understandable question, the answers to which we ought to find unsatisfying and potentially very dangerous. And it’s one we’ve addressed before on Lawfire® (see here). Essentially, common Article 2 of the Geneva Conventions holds that they apply to any “armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.” What is problematic is the interpretive Moreover, as I said in the previous post:

[I]t may surprise you but the commentary of International Committee of the Red Cross about the Geneva Conventions contends that there is “no mention of any threshold for the intensity or duration of hostilities” that is needed to trigger their application. Accordingly, any act of hostilities – however minor – is enough. 

This means that “however minor” the hostilities, prisoner of “war” status nevertheless applies. Ironically, even though “war” law can be generated by “minor skirmishes”, international law may also preclude fighting back. This view is traceable to the 1986 International Court of Justice case of Nicaragua v. U.S. (¶ 195), which said that the UN Charter permits the use of force in self-defense only in response to graver forms of violence in terms of “scale and effects.”

The case specifically concluded that, for example, a “mere frontier incident” was not serious enough in “scale and effects” to authorize the use force in self-defense, notwithstanding the obvious violence that could be involved in such an “incident.” This means that although minor incidents involving force can create prisoners of “war,” they are nevertheless not sufficiently serious so as to permit the use of force in response.

Back in 2016 NYU Law Professor Ryan Goodman tried to explain the legal anomaly this way:

To say we are in an armed conflict, however, is not to say we are at war.  The definition of an “armed conflict,” which preoccupies humanitarian lawyers who want to know if the Geneva Conventions apply, is not the same as the political state of affairs involved in “war.”  Remember even the detention of a single soldier would presumably be enough to trigger the protections of the POW Convention, yet that is nowhere near a sufficient amount of force to be considered a war between two states.  Indeed, as odd as it might sound to a policymaker, a detained soldier may properly be classified as a “prisoner of war” even when there isn’t a war.

“Odd” sounding indeed – especially since the Conventions themselves use the word “war.” This kind of “war – isn’t war” typology requires mental gymnastics that could confound even highly-trained international law experts, let alone the hundreds of millions of people in the publics of India and Pakistan. They may, understandably enough, assume they are at “war” with their neighbor and may react in wholly unpredictable and alarming ways.

Whatever sense the legacy interpretation of the Geneva Conventions may have made in 1949 when the treaties were written, they should not be mechanistically applied today, when captives of a state are protected by the norms of 21st century international human rights law (IHRL). IHRL doesn’t mandate the use of potentially inflamatory “war” language, and that can avoid exacerbating sensitive situations. What is more is that the ubiquity and velocity of today’s social media capabilities need to be taken into account when interpreting the wording of a treaty more than sixty years old.

The way ahead 

In my view, not only was there no breach of the Geneva Convention in this instance, both Pakistan and India ought to commended for their handling of a situation that could have spiraled into catastrophe. While they certainly have not resolved their border differences, at least the resolution of this incident has not worsened that dispute as it so easily could have. State practice is not always controlling in international law, but where two hostile states resolve a matter relatively amicably, that practice is due special respect.

International law ought to encourage outcomes like we see here. While we need to be alert to situations where, in fact, Article 13 is violated by the kind of egregious behavior I believe it was meant to address, we also need to be cognizant that in the 21st century, social media has a power that the law needs to recognize. Countering false and distorted visuals so easily disseminated on social media is a reality with which government need deal.Sometimes answering with visuals is the best and most efficient way to get accurate and – and in this instance – calming information to masses who today get so much of their information from social media.

We also need to rethink the interpretive norm which defaults to using the language of “war,” even when the law itself may insist there is, in fact, no war. When the nations involved do not characterize themselves as at war, and both seem to accept a depiction of the matter as being factually a “border incident” (as the Nicaragua case might put it), we ought not to compel the invocation of the law of war where, as here, international human rights law – basically a law enforcement regime in this context – can adequately protect the individuals involved.

In this case, Pakistan essentially employed international human rights law when it “arrested” the pilot for illegally entering the country’s airspace. Is it really so incongruous for the parties to treat this incident as a law enforcement matter?  Consider as well this new (Mar 5th) Washington Post report indicating that Pakistan is continuing to embrace the law enforcement paradigm:

Pakistan’s Interior Ministry announced Tuesday that authorities have arrested 44 people affiliated with outlawed organizations, including two relatives of the leader of an extremist group that claimed responsibility for a Feb. 14 terrorist attack in Indian-controlled Kashmir.

As I’ve written before, I believe the fuller intent of international law can be well-served if we can avoid too quickly seeming to create a “war” – particularly between nuclear-armed parties – by insisting that the law of armed conflict must displace international human rights law in every instance.

In my opinion, we ought not to be condemning the handling of this case as being a breach of the Geneva Conventions. Rather, we ought to be examining how the use of photos and videos in this instance promoted the underlying purpose of international law writ large, that is, the maintenance or restoration of peace. 

So, yes, I believe that the way Article 13 (and, for that matter, Article 2) is often interpreted needs to evolve, particularly to meet the challenges of the social media age where inaccuracies and manipulations have the potential to create crises that can quickly spiral out of control with appalling results. We should not forget the lesson of the Nuremberg Tribunal that the “law is not static but by continued adaptation follows the needs of a changing world.

Still, as we like to say on Lawfire®, check the facts, assess the law and the arguments, and decide for yourself!

 

 

 

 

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