External Affairs

The Government’s Plan to Take Pakistan to the ICJ is a Non-Starter


N.K. Kalia and Vijaya Kalia, parents of Captain Saurabh Kalia, stand beside the portrait of their son who was killed in the 1999 Kargil war with Pakistan. Photo: Nirupama Dutt.

N.K. Kalia and Vijaya Kalia, parents of Captain Saurabh Kalia, stand beside the portrait of their son who was killed in the 1999 Kargil war with Pakistan. Photo: Nirupama Dutt.

Sixteen years ago, Captain Saurav Kalia became a martyr in the Kargil war and his badly mutilated body was returned to India with the explanation that the mutilation was caused by some wild animals before his body was recovered. India refused to accept this explanation, believing that Captain Kalia had been tortured by the Pakistani Army, in contravention of the Geneva Convention on the Treatment of Prisoners of War, 1949. Now, a decade and half later, the question of justice for Kalia has raised its head again.

Kalia’s is a classic case of barbarity that should shock the conscience of humankind. India is entitled to believe that the captain was in the custody of Pakistan, which was responsible for his treatment as a Prisoner of War under international humanitarian law. “Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited and will be regarded as a serious breach of the [Geneva] Convention. In particular, no prisoner of war may be subjected to physical mutilation…….” “Prisoners are entitled in all circumstances to respect for their persons and their honour.” Further, “wilful killing, torture or inhuman treatment, wilfully causing great suffering or serious injury to the body or health” of the prisoners of war amount to be grave breaches of the Geneva Convention III. These grave breaches are recognised as war crimes under the statute of the International Criminal Court.

Kalia’s has not been the only case of an Indian soldier being beheaded. On January 9, 2013, the media reported that the day earlier, Indian troops faced a Pakistani “border action team” penetrating the LOC from Pak-held Kashmir: ‘After the gun battle, the bodies of Lance-Naiks Hemraj and Sudhakar Singh, part of an “area domination patrol” of the 13 Rajputana Rifles, were found. One of them was badly “mutilated”. Although the Army did not give more details of the barbarism, sources said the retreating Pakistani soldiers had chopped off the “head” of one of the Indian soldiers and taken it back with them.’ However, this was just a border confrontation, not a situation of extended period of hostilities and therefore, the Geneva Conventions may not apply. Yet, should not the mutilation and decapitation amount to crimes against humanity, as they are practised consistently against Indian troops? If so, why the call for justice for Kalia alone?

Be that as it may, let us confine ourselves to the Kalia case and ask, should the Government of India move the International Court of Justice, as it now appears to be willing to do in the face of media pressure?

At the outset, it is clear that the idea of  the government seeking directions from the Supreme Court of India in this matter is nonsensical. Activating an international dispute settlement mechanism against a foreign government in order to resolve a foreign policy issue is the exclusive preserve of the executive power and the judiciary has no role in it. The most the Supreme Court could do is make a recommendation. From this point of view, the Modi government’s stated intention of “requesting the Supreme Court to pronounce on the legality of the stand, taking into account the exceptional circumstances is perhaps a face-saving technique.

That said, it is my belief that it would be futile for India to approach the ICJ on this matter.

India is bound by the Optional Clause Declaration it made in 1974 on the circumstances under which it was prepared to grant the international court jurisdiction and Captain Kalia’s case is quite clearly excluded.

The Declaration made by India on September 18, 1974 accepting the optional jurisdiction of the International Court of Justice specifies, inter alia, that the following categories of disputes shall be outside the purview of the Court’s jurisdiction:

(2) disputes with the government of any State which is or has been a Member of the Commonwealth of Nations;

(4) disputes relating to or connected with facts or situations of hostilities, armed conflicts, individual or collective actions taken in self-defence;

(7) disputes concerning the interpretation or application of a multilateral treaty unless all the parties to the treaty are also parties to the case before the Court or Government of India specially agree to jurisdiction.

The 1960 Declaration made by Pakistan under the Optional Clause of the ICJ Statute embodies a similar multilateral treaty reservation.

The Geneva Convention is a multilateral treaty to which both India and Pakistan are party so any dispute concerning its application cannot be brought to the ICJ. Besides, Pakistan is also a Commonwealth country, and Captain Kalia’s torture and death clearly occurred in a situation connected to a situation of hostility.

When Pakistan took India to the ICJ in the Atlantique case –  the Indian Air Force shot down an unarmed Pakistani military patrol aircraft on August 10, 1999 carrying 16 young trainee cadets near the international border at Kutch – India invoked clauses (2) and (7) of its Optional Declaration. The ICJ upheld the Commonwealth reservation and dismissed the case brought by Pakistan against India.

A further problem with reservations embodied in the Optional Clause Declaration made by a country seeking to limit the jurisdiction of the ICJ is that they can be taken advantage of by the other nation that is party to the dispute.

In other words, if India were to move the ICJ in the Kalia case acting under its Optional Clause Declaration, Pakistan will be free to invoke the above three reservations (or any one of them) to prevent the court from proceeding with India’s claim. In the Certain Norwegian Loans case in 1957, the ICJ dismissed a French claim against Norway, acting on one of the reservations made by France in its Optional Clause Declaration. The French reservation was invoked by Norway on grounds of reciprocity.

Is it then possible for the Government of India to refer the case to the ICJ outside the purview of its 1974 Optional Clause Declaration? It is theoretically possible for both India and Pakistan to enter into an ad hoc special agreement submitting the Kalia case to ICJ. But then, why would Pakistan agree to such a course of action detrimental to its interests?

Is it possible to refer the case to the International Criminal Court? The answer is in the negative. The Rome Statute of the ICC entered into force on 1st July 2002. Article 11 (1) of the Statute provides: “The Court has jurisdiction only with respect to crimes committed after the entry into force of this Statute.” The Kalia case belongs to 1999. At any rate both India and Pakistan are not parties to the Statute.

The only way in which we can do justice in the Kalia case and in those like it would be by resorting to the compensatory jurisprudence of the Supreme Court of India. There is no way of apprehending the culprits, without the active cooperation of Pakistan.

V.S. Mani was a member of the Indian Delegation to the ICJ in the Atlantique case involving India and Pakistan. He is former ISRO Professor of International Space Law, JNU, and  currently Director, School of Law and Governance, Jaipur National University, Jaipur.