Legality of the Detainment of Indian Army Soldiers by the Chinese Army

Synopsis:

This Article will talk about the international legal grounds pertaining to the detainment of the Indian Army Soldiers by the Chinese Army after the clash that took place between the two nations in the Galwan valley in the Ladakh region. The article will discuss whether the international law allow this detainment by the Chinese Army or if they will be held liable for this.

India is already in mid of a Pandemic which has caused huge damage to the life and economy of India with the total number of coronavirus Cases reaching 400,560 and the death toll stands at 13,021. While India is dealing with this situation, another situation has arisen in the Ladakh region of the contested border known as the Line of Actual Control (LAC) between India and China. Tense military face offs between the armies of both the countries have been taking place since April in the Galwan valley and along the Pangong lake located in Ladakh region. In a major setback to India, it was reported that 20 Indian soldiers were killed on 15th of June in a savagery border clash with the People’s Liberation Army in the Galwan valley.As a matter of shock, it was reported that 10 Indian Soldiers have been detained by the Chinese Army who were refusing to set them free.

This border skirmish between China and India is not the first time that China has adopted an increasingly forceful approach in asserting territorial claims along India’s periphery. When the Chinese President Xi Jinping visited India in 2014, Chinese soldiers entered into Indian claimed territoryin Ladakh without authorization.

Agreement between India and China:

China and India have signed border agreements in 1993, 1996 and 2005, which law down the activities which arenot allowed, and which are allowed along the Line of Actual Control (LAC) between the 2 nations.The LAC is a notional line that runs for 4,000km from the high Himalayas in the west to the extreme east of India. It is an unmapped, contested territorial demarcation which awaits political resolution. India and China have claim lines along this mountainousLine of Actual Control and bothhave actively asserted their presence through their border patrols. An uneasy but relatively stable status quo has prevailed since 1993, when the two nations signed off on a peace and tranquillity agreement.

The first agreement was signed in September 1993 to maintain peace along the LAC and reduce aggression both the sides.It is based on five principles:

1. mutual respect for sovereignty and territorial integrity,
2. mutual non-aggression,
3. non-interference in each other’s internal affairs,
4. equality and mutual benefit and peaceful coexistence,
5. and with a view to maintaining peace and tranquillity in areas along the line of actual control in the India-China border areas.

To avoid a full-scale war between the 2 nations and achieve the goals set in the first agreementthe detailed protocols were defined in the second agreement signed in1996. This agreement bars the soldiers from both the nations from using firearms on each other. Section (1) of Article VI of this agreement states that neither side can open fire guns or use explosives within two kilometres of the LAC. It cannot be said that the Chinese sides violated the agreement as they didn’t fire shots but used weapons like stones, sticks studded with nails and wrapped with barbed wire. Indian soldiers respecting the agreement were not carrying any firearms with them.

Can China detain those Indian Soldiers?

International humanitarian law aims at limiting the effects of armed conflict for humanitarian reasons. Under International humanitarian law ‘war crimes’ means:

1. Members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention.
2. Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture.
3. Committing outrages upon personal dignity, in particular humiliating and degrading treatment.
4. Taking of hostages.

India and China are parties to other treaties as well regarding the exchange of detainees. India has an Agreement on Repatriation of Detainees with Bangladesh and Pakistan. Signed in 1974, this was to make further progress in the process of reconciliation and normalisation among the countries of the sub-continent. China too in 1995, welcomed the agreements on the exchange of detainees and prisoners of war during a debate in the UN Security Council on the situation in Tajikistan and along the Tajik-Afghan border.

According to Article VI and VIII under the 1996 Agreement on the Confidence Building Measures in the Military Field along the LAC in the India-China Border Areas, in case the personnel of one side in the border areas cross over to the other side then,

1. The side having discovered it should promptly contact and notify the other side.
2. The personnel crossing over to the other side shouldtake measures to return to their own side.
3. The side where the personnel fallsshall provide all possible assistance to him and ensure their earliest possible return.

In this case, Chinarefusal to release the captured Indian soldiers after the skirmish that took place in Galwanwas a departure from the precedents as in 2013, when a Chinese officer fell off a cliffafter a standoff, he was rescued and handed over by the Indian Army to the Chinese army as per the per border patrolling protocol.

Conclusion:

The situation between India and China regarding the detainees softened only after external affairs ministers of both the nations spoke to each other. The photographs of the captive Indian soldiers were displayed at the major general level meetings which helped to secure the release of the personnel’s.As told by the sources, the soldiers were not mistreated by the Chinese staff.