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A couple of days ago an Indian pilot flying a MiG-21 was shot down by the Pakistani military. The pilot was captured and detained. Very recently the pilot has been returned to the Indian military. I've heard it reported in the media that the Pakistani Prime Minister Imran Khan has said that the pilot has been released as a "gesture of peace".

India's Minister of State for External Affairs tweeted:

It must be understood that #Pakistan has not done us a favor by returning #WingCommanderAbhinandan. Under the #GenevaConvention, a serving soldier captured during conflict has to be returned. We must not forget that after 1971, we released over 90,000 PoW from Pakistan.

I think I have heard the same thing said by others.

The term Geneva Convention is often used loosely to cover the four Geneva Conventions and its three additional protocols added after 1949. In any case:

The Geneva Conventions comprise four treaties, and three additional protocols, that establish the standards of international law for humanitarian treatment in war.
Geneva Conventions - Wikipedia

Since the two countries are not at war, does the Geneva Convention apply? And which part of it addresses this situation?

Also, the claim that a "serving soldier captured during conflict has to be returned" only applies to when a state of war or conflict ceases to exist between the countries, correct? I imagine generally POWs are detained for the duration of a war, or does this contravene the Geneva Convention also? Also in the case of military conflicts that are not categorized as wars, are the captors obliged by the Geneva Convention to return the captive to his home state? This seems quite counterintuitive to me as most likely the returned soldier would be simply put on fighting duty again.

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The first paragraph of Article 2 of the 3rd Geneva Convention (Relative to the treatment of Prisoners of War) sets broad rules for when it applies:

In addition to the provisions which shall be implemented in peacetime, 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 recognized by one of them.

In general the convention directs sick or wounded prisoners of war should be repatriated as soon as they are fit to travel. Similarly the parties are encouraged to repatriate (or transport to a neutral country) prisoners who have undergone long periods of captivity. Otherwise, for able-bodied prisoners under the terms of article 118

Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities.

Note that the cessation of active hostilities isn't precisely the same thing as the end of a war. There also appear to be provisions for release under parole (that is, under a legal promise not to take up arms against the opposing power again).

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  • I've hesitated to call the pilot a prisoner of war. Do you think that last quote that says "prisoners of war shall be released" applies to this situation? I mean, it was sortie by the looks of it, there may have been a dogfight. That event would be considered conflict, I can understand that, but war?
    – Zebrafish
    Commented Mar 1, 2019 at 18:05
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    @Zebrafish See article 4A(1) "A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy: 1) Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces."
    – origimbo
    Commented Mar 1, 2019 at 18:11
  • It looks like it includes a captured person in a conflict as a POW, not necessarily war. So if India invoked these parts of the Geneva Convention I assume they consider the conflict to be finished (whatever that conflict was, lasting one or two days) .
    – Zebrafish
    Commented Mar 1, 2019 at 19:27

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