The OP pretty much says it all.
IF the Chinese decide to hold onto the crewmen of the plane that landed over there, at what point does their official status change?
according to whom? And, the term “POW” wouldn’t apply in either case, if I understand the term since we’re not at war.
But, it is an interesting question - they certainly are being detained. At this point, their detention can be seen as a reasonable response in terms of: (you being China) you’ve just had an accident. One person is missing. The others are witnesses/ perhaps the cause of the accident. You certainly have some reason to believe that they would not return to your jurisdiction should you decide they are either criminally or civilly responsible.
So, according to China at this point, (probably) they are being held to assist in their investigation. According to US, of course, they should be returned forthwith. I would suspect that the US is specifically refraining from labeling their status exactly since to name it as a hostage or illegally detained would potentially be another diplomatic issue to resolve.
Don’t think I’ve clarified it at all, though.
It isn’t clear to me from a quick skim of the Geneva convention that they are either. There is no conflict so in law their status isn’t necessarily different from a group of civillians who entered the country under similar circumstances.
The convention does state that where there is any doubt as to their status they shall enjoy the protections of the convention until a competant tribunal has ruled on the issue. As for hostages, we can think of them as such but presumably the chinese would view them as being held under immigration laws as illegal alliens.
There are of course enormous questions about the circumstances that the plane landed that would impact on this issue. There are obviously things we are not being told as yet.
Unfortunately for the crew, the Chinese do, or should, have the right to detain them and the plane until the issue is resolved.
The Chinese are taking the stance that the US plane caused the crash. They can keep the US plane until the US pays them for their fighter and compensation to the pilots family. They probably could file criminal charges against the US crew since they claim the US crew rammed their fighter. That would let them keep the crew in China while their legal system handles the case. If they do not file charges against the crew, they should turn them loose.
The US might be able to go to the World Court to settle the issue of who is at fault
There is no legal reason that the Chinese need to hold the US Crewmembers of the EP-3E if the intent is to file some kind of criminal or civil charges for the collision. A release of the crew does not mean that any charges are somehow invalidated or dropped.
Please remember that during the Korean war, the Chinese held UN/US airmen shotdown over Korea and China for quite some years after the war. Some were eventually returned, some “disappeared” in China or after transfer to the USSR. This is not conjecture or rumor; the fact that US airmen were sent to the USSR for interogation is verified by ex-Soviet sources. There are also numerous reliable accounts of aircrew known as healthy in Chinese captivity who were never heard from again.
During the Vietnam War, some (not many) airmen fell into Chinese hands because of their straying into Chinese airspace and being shot down. These were (as far as I know) eventually returned after negotiations via 3rd parties (the US not having direct relations with the Chinese at the time). Sometimes this took months, sometimes years.
These particular airmen are of a class that are especially valueable to the Chinese because they are electronic monitoring and cryptographic specialists. Their aircraft has already been stripped of some very advanced monitoring equipment, and no doubt the Chinese intelligence people would very much like to get what they can from the crewmembers.
Point being, the Chinese only seem to observe international law on the status of personnel falling into their hands when it suits them.
The status of POW only exists where there is armed conflict between the nations of the individuals involved. An accidental midair collision does not constitute armed conflict. While there really is no legal status of “hostage”, the aircrew would only be considered hostages if they …well, fit the dictionary definition of hostage; that is, if they were being held for some defined reason —and there doesn’t seem to be a reason in this case, at least not that has been clearly expressed to the US.
Perhaps the reasons are internal to China; perhaps the Chinese military (PLA) wishes to prove a point to the Chinese Foriegn Ministry.
It seems to me that the parts of international conventions which concerns the fate of these particular personnel are the parts about “shipwrecked” personnel.
In any case, these people are “interned” and not (we hope) imprisoned. Since no state of active conflict or belligerency exists between the US and China (as of this moment), the Chinese have no legal precedent for holding the crew against their will.
The Chinese might try to make a case that the crew were engaged in belligerent acts by initially intruding into Chinese airspace for spying purposes, but it’d be pretty thin because the EP-3E is unarmed (and un-armable) and presents too easy of a target to be going into any place where there is even a chance it will be shot at. The equipment it contains is too sensitive to place at risk of falling into enemy hands by sending it into potentially hostile airspace. If, as seems to be the case, the crew declared an emergency before going into Chinese airspace to put down, then any allegation that the landing on Hainan is an act of belligerency is bogus under both the Geneva conventions and international aviation agreements.
Why are the Chinese holding the crew and stripping out the aircraft? Because they can.
So the Chineese Government claims that the big, slow, prop-driven American plane RAMMED the Chineese Fighter Jet?
Ok so I went on a little Information spree. Here is what I found…
Information about the Chineese Jianjiji-8 Fighter plane…
http://www.janes.com/aerospace/military/news/jawa/jawa010402_1_n.shtml
Information about the USN EP-3A…
http://www.janes.com/aerospace/military/news/jema/jema010402_1_n.shtml
and…
http://www.chinfo.navy.mil/navpalib/factfile/aircraft/air-ep3e.html
and also…
http://www.cnn.com/interactive/world/0004/Ep_3/frameset.exclude.html
An interesting animation sequence showing how the collision might have occured from the UKs’ The Guardian…
http://www.guardian.co.uk/china/flash/0,7365,468031,00.html
So I am really wondering how a big,lumbering, relativly slow aircraft can ram a small, quick, highly manueverable aircraft that is BEHIND IT.
Looks to me like the Chineese Fighter got a little too close and touched a prop, judging by the damage shown on the EP-3A.
If that is the case, and the Chineese fighter is to blame for the accident, then the crewmen should be freed at once and the plane returned to the US. But it looks like the Chineese Government is going to milk this for as much political gravy as they can…One even wonders if the fighters were sent out to disable the aircraft. hmm…
Also from what I understand, the incident occured OUTSIDE Chineese airspace.