Game of bluff

Print edition : July 10, 2015

Captain Saurabh Kalia, who was killed during Kargil war in 1999, at his pinning ceremony at the Indian Military Academy in Dehradun in 1998. Photo: PTI

The Modi government’s claim that it will seek the direction of the Supreme Court on the legality of approaching the International Court of Justice against Pakistan in the case of Kargil martyr Captain Saurabh Kalia is seen as an eyewash.

NIKITA KHRUSCHEV had famously commented, “Politicians are the same all over. They promise to build bridges even when there are no rivers.” This description is eminently suitable for the politicians ruling India today. They can even stoop to the extent of playing with the feelings of martyrs’ families for their petty political gimmicks.

An example of this was seen recently when External Affairs Minister Sushma Swaraj, otherwise known for her sobriety, declared that India would take the case of Kargil martyr Captain Saurabh Kalia, who was captured and brutally killed by Pakistani soldiers in May 1999 along with five Indian jawans, to the International Court of Justice (ICJ) in The Hague if the Supreme Court allowed it. She said the government would change the affidavit (filed by the previous United Progressive Alliance, or UPA, government), which is pending in the court.

“If the Supreme Court says we can go to the International Court of Justice we will do that,” she said in Jaipur on June 1. This, like many other promises made by the Narendra Modi government, is nothing but an eyewash, if one goes by the opinion of international law experts. The UPA government’s affidavit maintained that it was not possible to take the case to the ICJ because India was bound by the Simla Agreement, which mandated that issues between Indian and Pakistan be settled bilaterally.

Intruding Pakistani troops captured Capt. Kalia (then a lieutenant in the 4 Jat Regiment), Arjun Ram, Bhanwar Lal Bagaria, Bhika Ram, Moola Ram and Naresh Singh, who were on a patrolling mission in the Kargil heights on May 15, 1999. They were tortured and killed in captivity and their mutilated bodies were sent to India. The Pakistan government, however, has insisted that they may have died because of bad weather and/or may have been mauled by wild animals although evidence to the contrary is in the public domain. The families of the victims have been demanding justice and punishment for the guilty.

Capt. Kalia’s father, Dr N.K. Kalia, approached the United Nations Human Rights Commissioner (UNHCR) in December 2012 pleading that this case be treated as a “war crime” and Pakistan be tried in the ICJ. He is backed by Rajya Sabha member Rajeev Chandrasekhar. They have petitioned the Supreme Court requesting it to direct the Government of India to take the matter to the ICJ. Ironically, immediately after Sushma Swaraj made the statement, former Chief of the Army Staff, General (Retd) V.K. Singh, who is a junior Minister in the External Affairs Ministry, was quoted as saying that the issue had been taken up at various international fora since 1999, including through a statement to the U.N. General Assembly and the UNHRC. This implied that the Indian government, in the given circumstances, could not take the matter to the ICJ.

Professor V.S. Mani, a renowned international law expert, said: “This is nothing but posturing by the government as, under media pressure, it is trying to wriggle out of a messy situation. This entire discussion of taking the matter to the ICJ is a non-starter.” A former professor of international space law in Jawaharlal Nehru University (JNU), Prof. Mani is the Director of the School of Law and Governance, Jaipur National University, Jaipur, and is the president of the Asian Society of International Law, Singapore. He was the founder-director of the Gujarat National Law University. He was a member of the Indian delegation to the ICJ in the Atlantique case in 1999. In that case, the ICJ dismissed Pakistan’s case against India citing certain sections of the Optional Clause Declaration of the Geneva Convention.

Prof. Mani said India and Pakistan were bound by the Declaration, which specified the circumstances under which it was prepared to grant jurisdiction to the international court. Capt. Kalia’s case was clearly excluded [from its jurisdiction], he said.

Prof. Mani said the Declaration, signed by India on September 18, 1974, specified certain categories of disputes that would be outside the purview of the international court. Pakistan signed a similar clause in 1960. According to the Declaration, the following categories of disputes shall be outside the purview of the ICJ under various sections:

Clause 2: disputes with the government of any state which is or has been a member of the Commonwealth of Nations;

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

Clause 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 the Government of India specially agree to jurisdiction.

The Geneva Convention, he said, was a multilateral treaty to which both India and Pakistan were party, so any dispute concerning its application could not be brought to the ICJ. Besides, Pakistan was also a Commonwealth country, and Kalia’s torture and death clearly occurred in a situation of hostility. 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 a nation that is party to the dispute.

In other words, he said, if India were to move the ICJ in the Kalia case acting under its Optional Clause Declaration, Pakistan would be free to invoke the above three reservations (or any one of them) to prevent the court from proceeding with India’s claim. He cited the example of the 1957 Norwegian Loans case wherein the ICJ dismissed a French claim against Norway, acting on one of the reservations invoked by France in its Optional Clause Declaration. Prof. Mani said India would be able to take the Kalia case to the ICJ only if Pakistan cooperated and both countries referred the case to the ICJ outside the purview of the Declaration. Pakistan is unlikely to agree to such a course of action detrimental to its interests.

To show how the Declaration functioned, he cited the Atlantique case. On August 10, 1999, the Indian Air Force shot down an unarmed Pakistani military patrol aircraft carrying 16 young trainee cadets near the international border in Kutch (Gujarat). Pakistan took the matter to the ICJ and India invoked clauses 2 and 7 of its Declaration. The ICJ upheld the Commonwealth reservation and dismissed the case brought by Pakistan against India.

So, Prof. Mani said: “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 was the exclusive preserve of the executive power and the judiciary had no role in it, he said. At the most, the Supreme Court could make a recommendation. From this point of view, the Modi government’s intention to seek the direction of the Supreme Court on the legality of taking the matter to the ICJ was “nothing but an attempt to wriggle out of a sensitive issue in the face of media heat”, he said.

In fact, the government appears to have realised the folly of its announcement. Sources in the Ministry of External Affairs confirmed that no further action was taken on the issue. The Ministry spokesman, Vikas Swarup, refused to comment. Defence personnel, both serving and retired, think the government is bluffing to get out of the situation.

N.K. Kalia said he was not aware if the government was planning to do anything in this case. “I have been waiting for 16 years. My struggle for justice for my son and other soldiers like him will continue till my last breath. I have not lost hope yet,” he told Frontline over phone from Palampur, Himachal Pradesh. He said he would believe the government when some concrete action was visible. “So far I have not seen any action, whether it was the UPA or the NDA [National Democratic Alliance]. Both are soft on Pakistan on this issue. They have never raised this issue with Pakistan. So if Sushma Swaraj says the government will go to the ICJ, I will only believe her once I see some action,” he said.

Does the whole issue display Sushma Swaraj’s ignorance or is it a move to deflect attention from other pressing issues concerning the defence personnel, such as the One Rank One Pension scheme promised by Modi in the run-up to the parliamentary elections? The scheme has not been implemented and the restive ex-servicemen have threatened an indefinite hunger strike later in June to press their demand.