["(I)f the government does approach ICJ, the safeguard will become
invalid and open up India to international arbitration on issues such
as J&K. "If, in the future, Pakistan raises any issue against India
such as the violation of human rights in the Valley or border
incidents, we would have shot ourselves in the foot."
(Excerpted from the write up at sll no II below, and highlighted therein.)
Approaching the ICJ - an international body, as regards a "bilateral
issue", in all probability, will open the proverbial can of worms from
the Indian administration's point of view.
Pakistan will only be too happy.
It is clamouring for international intervention/arbitration on a host
of ("bilateral") issues, including Kashmir, for ages.
This will only strengthen its position vis-a-vis Indian state's dogged refusal]
I/II.
http://scroll.in/article/731762/why-india-chose-not-to-sue-pakistan-for-torturing-a-kargil-war-veteran-until-now
Borderline case
Why India chose not to sue Pakistan for torturing a Kargil war veteran
- until now
It's not cowardice so much as the complications of international law.
Rohan Venkataramakrishnan · Today · 08:50 am
External Affairs Minister Sushma Swaraj on Tuesday made a surprising
announcement. New Delhi, which for years has insisted that it would
not allow third-party intervention in its disputes with Pakistan,
suddenly said that it was "reviewing" its approach in the case of
Captain Saurabh Kalia - a Kargil war combatant who had been captured
and allegedly tortured by Pakistani troops along with four others in
1999. Swaraj said that this was an "exceptional" case and that the
government would ask the Supreme Court if it could take Kalia's case
to the International Court of Justice.
Kalia's case had suddenly come up in the news on Monday morning, with
a front-page story in Delhi daily Mail Today. Curiously, there seemed
like no real reason for the newspaper to bring up the matter that day.
The paper's report, which was subsequently picked up by TV channels,
was actually pegged on a Parliamentary reply that had been submitted
in July 2014.
Aside from a Supreme Court date in the matter, slated for another two
months hence in August, there seemed to be no particular news peg for
the story - except that it would be embarrassing for a government that
is already having a hard time keeping servicemen happy because of its
delay in enforcing One Rank One Pension as promised.
By evening, however, there was a clear news peg for the story: New
Delhi was indicating that it could be changing a decades-old stance on
the issue of the International Court of Justice. The Ministry of
External Affairs spokesperson Vikas Swarup said that until now, the
government had held the position that neither India or Pakistan could
invoke the ICJ's jurisdiction in relation to any dispute involving
armed hostilities as well as matters involving Commonwealth Nations.
"This position, which was stated in the affidavit filed by the
Government on 26 September, 2013, has now been reviewed. Government
will be requesting the Supreme Court to pronounce on the legality of
the stand, taking into account the exceptional circumstances," Swarup
said. "Subject to above, Government would be open to invoking the
jurisdiction of the International Court of Justice."
What happened to Saurabh Kalia?
Captain Saurabh Kalia, along with five other soldiers of his
patrolling team, were captured alive and kept in captivity in Pakistan
in 1999 during the Kargil war. The soldiers were kept in captivity for
three weeks, during which, as the post mortem report is said to have
indicated, they were tortured with cigarette burns on their skin,
their ear drums were pierced with hot iron rods, eyes punctured and
genitals cut off and more, before they were killed by bullets. Their
bodies were later returned to India, with Pakistan denying any claims
of torture and saying that "weather conditions" might have caused
Kalia's death.
What has India done about this?
Not much. The longstanding Indian approach to the case was laid out by
Minister of State for External Affairs VK Singh in his reply to
Parliament last year. It said that the government had drawn the
attention of the international community to this barbaric act of the
Pakistan Army, including through a statement at the United Nations
General Assembly and in a statement to the Commission on Human Rights.
However, "the possibility of seeking legal remedies through the
international courts was also thoroughly examined but not found
feasible."
Why was a legal remedy not feasible?
While some will insist it has to do with cowardice from the successive
governments, both the National Democratic Alliance under Atal Behari
Vajpayee as well as the United Progressive Alliance, there are also
serious legal issues that come up first. India's relationship with the
ICJ is governed by its 1974 declaration that lays out what cases it
permits the court to have jurisdiction over.
Among the exceptions that don't allow the ICJ to get involved are
disputes connected with situations of "hostilities" and "armed
conflicts," a provision essentially put in place in 1974 to ensure
that there would be no ICJ fallout from the 1971 war with Pakistan.
India also doesn't accept ICJ jurisdiction in cases involving
Commonwealth nations. Pakistan's own declaration doesn't include
either of these exceptions.
This means that India's own law, as ratified by Parliament, does not
give the ICJ jurisdiction over the issues.
What has changed now?
Only the government's stance. Swaraj said they would change their
affidavit in court, which is hearing a case filed by Kalia's father,
for India to take the matter up at the ICJ. The minister said they
would wait for the Supreme Court to pronounce on the legality of its
stand, presumably to invoke the ICJ's jurisdiction in the matter, and
if given a green light, India would approach the international court.
The problem remains, however, that India's own declaration stands in
the way. India could presumably file a new declaration, removing the
clauses relating to the Commonwealth and armed hostilities, but that
could open it up to prosecution on a number of issues - which was the
very reason it put those provisions in the declaration in the first
place.
In 2000, for example, the court dismissed a case against India that
had been filed by Pakistan, for the shooting down of a Pakistani plane
a month after the Kargil war. The court concluded, as India argued,
that it had no jurisdiction over the case primarily because India's
declaration kept Commonwealth nations and disputes over hostilities
out of the ICJ's ambit.
II.
http://economictimes.indiatimes.com/news/politics-and-nation/india-stands-to-lose-if-captain-kalia-case-goes-to-icj/articleshow/47521526.cms
India stands to lose if Captain Kalia case goes to ICJ
By Manu Pubby, ET Bureau | 3 Jun, 2015, 04.18AM IST
NEW DELHI: India may stand to lose by taking the issue of Kargil
martyr Captain Saurabh Kalia's case to the International Court of
Justice (ICJ). Experts said that not only is India sure to lose the
case but also the mere act of approaching ICJ could open up to
international arbitration contentious issues such as human rights
violations and operations in Jammu and Kashmir across the Line of
Control.
Even as Congress and BJP accuse each other of failing to act in the
matter, the minister of state for external affairs General (retd) VK
Singh had said in the Rajya Sabha earlier this year that a solution
through international courts "was not found feasible". Singh had
reiterated the position taken by the BJP government on the issue
immediately after the Kargil conflict when the air force shot down a
Pakistan Navy Atlantique aircraft in Gujarat, in an apparent act of
revenge.
The same line -- that ICJ has no jurisdiction over India and Pakistan --
was taken by the Congress-led UPA in 2012 when Kalia's father took up
the case to the Supreme Court. However, after a media campaign berated
BJP for towing the line of UPA on the Kalia case, the government on
Monday made a U-turn, saying that "taking into account the exceptional
circumstances" the government is open to invoking ICJ's jurisdiction
over the matter.
Given the stand that India took up during the Atlantique incident,
there is no chance of the case being ruled in the country's favour at
ICJ, experts said. Immediately after the shooting down of the Pak Navy
aircraft, Pakistan had dragged India to ICJ, invoking the UN charter.
However, India had then cited a 1974 declaration that ruled out the
jurisdiction of the ICJ over cases involving present or past
commonwealth nations.
If India approaches ICJ with the Kalia case, Pakistan is likely to use
the same provisions to block the move. "The government is simply
playing politics. It is trying to show that it is more sensitive to
the interests of the armed forces than UPA was but it knows that it
does not have the slightest chance of getting any justice for Capt
Kalia and the five jawans who were captured with him and tortured,"
said Satyabrata Pal, who retired as the High Commissioner to Pakistan
in 2009.
The career diplomat said the 1974 deceleration debarring the ICJ
jurisdiction over bilateral matters was an important safeguard that
was invoked during the Atlantique incident. "It is cruel as it is in
raising the hopes of the families for justice but it is also
particularly foolish and shortsighted as the government knows simply
to make a point you cannot withdraw a line of defence that was put in
specifically to guard against such problems," the retd IFS officer
said.
However, ***if the government does approach ICJ, the safeguard will
become invalid and open up India to international arbitration on
issues such as J&K. "If, in the future, Pakistan raises any issue
against India such as the violation of human rights in the Valley or
border incidents, we would have shot ourselves in the foot," Pal
said.*** [Emphasis added.]
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Peace Is Doable
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