Pakistan vs India

Case Name - Pakistan vs India

Case Citation - 1973 ICJ 328

Relevant Acts and Sections - The Geneva Convention 1949

Parties Involved -

• Petitioner - Pakistan

• Respondent - India

Facts of the Case

• Pakistan launched legal action against India in May 1973, alleging that India planned to give over 195 Pakistani prisoners of war to Bangladesh, where, according to Pakistan, they would be tried for genocide and crimes against humanity.

Issue of the Case

• Whether India is justified in sending the prisoners of war back to Bangladesh instead of Pakistan?

Arguments of the Petitioner

• The Government of India initiated direct armed strikes against Pakistan's Eastern Province on November 21, 1971, taking advantage of the domestic circumstances in East Pakistan and violating their duties under the United Nations Charter. Pakistan was forced to employ self-defense measures as a result of the escalating violent attacks. The conflict escalated to West Pakistan, resulting in India and Pakistan declaring war on each other on December 3, 1971. On December 4, 1971, India notified Pakistan of the presence of a state of war through the Swiss government.

• General S. H. F. J. Manekshaw, the Chief of Staff of the Indian Armed Forces, called on the Pakistani forces in East Pakistan to surrender to the Indian army on December 11, 1971. He issued his "solemn assurance" in a radio address that the men who surrendered would be handled with the decency and respect that all soldiers are entitled to and that India would follow the Geneva Conventions' stipulations. The greatly outnumbered Pakistani forces under the Eastern Command surrendered to the Indian army on December 16, 1971, in response to General Manekshaw's demand and in order to save any further carnage and destruction.

• The External Affairs Minister of the Government of India also confirmed this assurance of General Manekshaw in the United Nations Security Council on 12 December 1971 by saying that:

"India stands committed to dealing with the enemy forces according to Geneva Conventions."

• He also recalled that India's Chief of Army Staff had informed West Pakistani forces in East Pakistan that if they surrendered, they would be safely evacuated to West Pakistan.

• As a result of his demand, the Pakistan army's Eastern Command surrendered on December 16, 1971, and a huge number of military personnel became prisoners of war of India, which was the sole belligerent force in the international confrontation with Pakistan. The captives were handed over to the belligerent power, India, in accordance with Article 12 of the Third Geneva Convention on the Treatment of Prisoners of War, which was signed on August 12, 1949. According to the above-mentioned Article, the duty for the care of prisoners of war fell only on the "Enemy Power" India, not on the persons or military units who had taken them.

• According to information received through the International Committee of the Red Cross, number 81,888, the prisoners of war, including civilians, were paid out of the military forces' resources. Furthermore, India continues to hold almost 10,000 civilians, including 6,500 women and children.

• On the 16th of December 1971, India issued a cease-fire request, which Pakistan accepted, and hostilities halted at 14:30 GMT on the 17th of December 1971. On December 21, 1971, the United Nations Security Council took notice of the situation. The Indian Foreign Minister, Mr. Swaran Singh, remarked before the Council:

"With the independence of 'Bangla Desh' and the surrender of Pakistan troops there, their earliest possible repatriation from the Eastern theatre has to be arranged. They are under our protection and we have undertaken to treat them in accordance with the Geneva Conventions."

• On December 21, 1971, the United Nations Security Council passed Resolution No. 307, noting the halt of hostilities and urging India and Pakistan to withdraw from territories controlled by them. The Security Council also demanded that the Geneva Conventions be followed.

• Over 92,000 Pakistani prisoners of war and civilian internees in Indian custody were transported to prisoner of war camps in India in January 1972. As the lone Enemy Power, India had the authority to keep Pakistani prisoners of war until hostilities ended. Despite the cessation of hostilities, which was confirmed by the Security Council on December 21, 1971, India continues to detain Pakistani prisoners of war in violation of the Geneva Convention. Pakistani civilians who voluntarily placed themselves under Indian protection in the hope of being repatriated to West Pakistan as soon as possible were unlawfully incarcerated and detained.

Arguments of the Respondent

• India claimed that the Court's jurisdiction over the subject was unfounded and that Pakistan's application had no legal standing.

• India has informed the United Nations that individuals who commit grave crimes such as genocide, war crimes, and crimes against humanity are not entitled to immunity under any of the Geneva Conventions. (People held were accused of various war crimes such as genocide.)

Judgment of the case

• Pakistan requested that the Court postpone further consideration of its Request in July 1973 in order to support the upcoming negotiations. Pakistan informed the Court that conversations had taken place before any formal pleadings had been submitted, and requested that the proceedings be halted. As a result, on December 15, 1973, an Order was issued removing the case from the List.

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How Should A Country Treat PoWs?