ICJ or not, it breaches Geneva Convention

Capt Saurabh Kalia Kalia’s parents have striven to get justice for their son and other Indian soldiers. Despite the parents’ repeated requests to the government to take the matter up internationally, New Delhi had dithered but now it appears to have dramatically changed its position.
But the Centre would have to seek SC permission to take up Capt Kalia’s brutal killing with the International Court of Justice. The previous Congress-led UPA government had faced flak for its alleged inertia. The political leadership preferred to make clever diplomatic statements but took no concrete stand, one way or the other, on the issue.

The Congress-led UPA government had stated that compulsory jurisdiction of the ICJ could not be invoked in response to Capt Kalia’s father moving SC in 2012. Earlier this year, Minister of State for External Affairs, Genl V.K. Singh, said the government had thoroughly examined the issue and found that a solution through international courts was not feasible.

However, berated by the media, the government counter-intuitively opined that owing to “exceptional circumstances” it was open to seeking redress through the ICJ. There are several aspects: As a threshold question, what must be investigated is whether the ICJ can be approached at all, and even if it can, whether it is the appropriate for resolution of this issue. And assuming this is answered in the affirmative, it is vital to consider whether it is politically sensible to do so.

First, the ICJ acts as a world court, possesses a dual jurisdiction: in its jurisdiction over contentious cases, it decides disputes of a legal nature that are submitted to it by States in accordance with international law; in its advisory jurisdiction, it gives advisory opinions on legal questions at the request of the organs of the United Nations or other agencies authorised to make such a request.

In line with this, as a member of the Commonwealth, India cannot move the ICJ unilaterally and requires Pakistan’s acquiescence to move the ICJ. Second, in August 1999, in what is referred to as the “Atlantique incident”, the Indian Air Force allegedly shot down a Pakistan Navy aircraft in an apparent act of revenge. Immediately following this, Pakistan sought to take India to the ICJ, and invoked provisions of the UN Charter.

In response, India cited a 1974 declaration that ruled out the Court’s jurisdiction over cases involving past or present Commonwealth nations. Even if India pursues the matter as planned, Pakistan is likely to use the very same provisions against India and it is highly unlikely that the ICJ will rule in India’s favour.

Next, in terms of international humanitarian law, which governs armed conflict between nation states, Capt Kalia’s torture and killing represents a serious breach of the Third Geneva Convention (Relative to the Treatment of Prisoners of War), which prohibits a nation from physically mutilating the body of a prisoner of war in its custody.

Still, whether or not a remedy can be meaningfully pursued under this body of law is also open to question, given the long interregnum between the incident and prosecution.

Additionally, the precedent could potentially open up international arbitration on contentious issues such as human rights violations in Jammu and Kashmir. This would open a veritable can of worms in respect of India’s counter-insurgency operations.

Career diplomats opine that the NDA government’s stance on the issue is largely superficial and a matter of politics. Perhaps the government simply seeks to show that it is taking a harder approach on the matter than its predecessor while all the while being aware of the fact that the pursuit of justice in this manner is an effort in futility.

While it is unfortunate that such a blatant violation of international law has remained unresolved for 16 years, the reality is that international law cannot be divorced from international politics. Owing to the lack of an enforcement mechanism, the compliance with the law is left to whims of sovereign states, something that often reflects a saddening but truthful (im) balance of power between states.

 (The writer is associate professor with the School of Law, Christ University, Bangalore)