This step by India is a major blunder at best or sinister at worst.
Going to The Hague: India and ICJ, the big picture
The govt is open to taking the Capt Saurabh Kalia case to International Court of Justice. SUSHANT SINGH examines the facts, issues.
Written by
Sushant Singh | Published:June 4, 2015 12:45 am
Captain Saurabh Kalia. (Illustration: Pradeep Yadav)
What is the International Court of Justice (ICJ)?
Based in The Hague in Netherlands, this 15-judge court was established in 1945 by the United Nations Charter. The statute of the ICJ regulates the functioning of the Court. All members of the UN are automatic parties to the statute, but this does not automatically give ICJ jurisdiction over disputes involving them. The ICJ gets jurisdiction only on the basis of consent of both parties.
Where does India stand vis-a-vis dispute resolution at ICJ?
In September 1974, India declared the matters over which it accepts the jurisdiction of the ICJ. This declaration revoked and replaced the previous declaration made in September 1959. Among the matters over which India does not accept ICJ jurisdiction are: “disputes with the government of any State which is or has been a Member of the Commonwealth of Nations”, and “disputes relating to or connected with facts or situations of hostilities, armed conflicts, individual or collective actions taken in self-defence…”. The declaration, which includes other exceptions as well, has been ratified by Parliament.
Has India ever taken as case to the ICJ?
Yes, once — even though it has been a party to a total five cases, three of them with Pakistan, at the ICJ. In 1971, India filed a case against the jurisdiction of International Civil Aviation Organisation (ICAO) to decide on Pakistan’s demand that India could not deny it overflight and landing rights. India had withdrawn Pakistan’s overflight rights after the January 1971 hijacking of an Indian Airlines flight to Lahore, and the gutting of the aircraft by the hijackers. The ICJ ruled against India, saying that ICAO had jurisdiction in this case.
In 1954, Portugal had filed a case against India over denial of passage to what were then the Portugese territories of Dadra and Nagar Haveli. ICJ decided in India’s favour in 1960, saying India’s refusal of passage was covered by its power of regulation and control of the right of passage of Portugal.
In 1973, Pakistan filed a case to stop the repatriation to Bangladesh of 195 Pakistani nationals in Indian custody after the 1971 War, to face trial on charges of genocide, but withdrew the case the next year.
After 1974, Pakistan, a Commonwealth nation, can no longer take India to the ICJ.
Didn’t Pakistan also take India to the ICJ in 1999?
Yes, after India shot down a Breguet Atlantique patrol plane of the Pakistan Navy in Indian air space over the Rann of Kutch. India contested the case, and the ICJ upheld India’s position that the Court had no jurisdiction to entertain Pakistan’s claim.
What is the Capt Saurabh Kalia case?
Captain Saurabh Kalia was the first Indian Army officer to observe and report largescale Pakistani intrusion on the Indian side of LoC in Kargil. His patrol, comprising five other soldiers, was captured by the Pakistan army on May 15, 1999. Their bodies were handed over on June 9, 1999. Post mortem examinations showed evidence of brutal torture: the men had been burnt with cigarettes, their ear drums pierced with hot rods, their eyes punctured before being removed, their skulls fractured, and their limbs and private parts chopped off before they were shot dead.
India has raised the issue with Pakistan as a violation of the rights of PoWs under the Geneva Convention, but to no avail. Replying to a question in Parliament last July, V K Singh, MoS for External Affairs, had said: “The possibility of seeking legal remedies through the international courts was also thoroughly examined but not found feasible.”
Kalia’s father filed a PIL in the Supreme Court last year, asking the Indian government to take the case to the ICJ. The government filed an affidavit in December saying the ICJ had no jurisdiction over disputes between India and Pakistan, and that a PIL could not seek action against a foreign country, as foreign policy is a government function.
What has the government said now?
Earlier this week, External Affairs Minister Sushma Swaraj said that if the Supreme Court gave permission, the government would approach the ICJ. “The Centre will be requesting the Supreme Court to pronounce a verdict on the legality of the stand, taking into account the exceptional circumstances. The Centre will be open to invoking the jurisdiction of the ICJ,” the MEA spokesperson added.
What does this position imply?
It is India’s own law, ratified by Parliament, which denies the ICJ jurisdiction over this matter. Even if the Supreme Court asks the government to move the ICJ, it is highly unlikely that Pakistan will accept the Court’s jurisdiction in this case. Also, going to the ICJ can theoretically open up all cases between India and Pakistan to multilateral jurisdiction, thus weakening New Delhi’s consistent stand that all issues with Islamabad would be resolved bilaterally. Once India has accepted ICJ’s jurisdiction over bilateral issues, Pakistan could well demand that the ICJ arbitrate on alleged human rights violations in Jammu and Kashmir, or military operations on the Line of Control, or any other issue.
http://indianexpress.com/article/explained/going-to-the-hague-india-and-icj-the-big-picture/
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