By Karmanye Thadani:
Capt. Saurabh Kalia was brutally tortured in the Kargil war. Thankfully, his father has not allowed the nation to forget, and Kalia’s torture has even been condemned by Pakistani human rights activists. More recently, two of our soldiers patrolling the LoC were killed. Firing across the LoC is unfortunately quite common, but what happened recently was the beheading of one soldier and possible mutilation of another. What should be our response?
Minister of External Affairs, Salman Khurshid only condemns the incident but refuses to discuss the strategy the UPA will adopt to react to this issue. I know some ultra-passionate Indians would advocate waging a war. But fighting a nuclear-armed country over an ambush at a time when our economic growth has slowed down will lead us nowhere. Even if we capture POK, the pro-Pakistan elements among them would create a huge menace and the anger in Pakistan would manifest itself in more terrorism. I am writing another series of articles on how to fairly and practically resolve the Kashmir issue, but let’s leave that for now.
But, does that mean we do nothing about these heinous crimes? Surely not. The Pakistani state had the audacity to take the Indian state to the International Court of Justice (ICJ) for shooting down a plane of theirs in our territory, and they evidently lost the case. Now, it is our turn to knock the doors of the ICJ to shame and blame Pakistan. We should make a ruckus about this in the United Nations Human Rights Council, just as Pakistan has repeatedly done over human rights violations by Indian soldiers in Kashmir. We should also approach the United Nations Committee against torture to pressurize the Pakistani state into punishing those guilty of these heinous crimes. Build international public opinion, which is already quite anti-Pakistan after Osama being found and killed there, and if not punishment for soldiers identified for these crimes (though that’s also not impossible), at least a proper reparation in monetary terms is due from the Pakistani state as well as a clear official apology. But no, going to the International criminal court (ICC) is not an option, as Times Now flashed on the bottom of the TV screen while discussing the issue of Capt. Kalia’s torturer, for we ourselves don’t accept its jurisdiction, nor does Pakistan (unfortunately, in my opinion, and I had written this piece on this issue).
Khurshid is a lawyer but he only spoke in terms of military action or dialogue, but whatever happened to international law? Isn’t it strange that India wanted to take up the Sino-Indian border dispute in the ICJ when our case legally was (and is) weak on that front, but is not doing so when we have a strong legal case here, for these two soldiers and Capt. Kalia?
Whenever I have brought up this point in Capt. Kalia’s context, people (lawyers included) told me that accepting the jurisdiction of the ICJ for any dispute requires consent of both parties. This needs some more clarity of the basics of international law. To quote Article 36 of the ICJ Statute that deals with the jurisdiction —
“1. The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.
2. The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning:
a. the interpretation of a treaty;
b. any question of international law;
c. the existence of any fact which, if established, would constitute a breach of an international obligation;
d. the nature or extent of the reparation to be made for the breach of an international obligation.
3. The declarations referred to above may be made unconditionally or on condition of reciprocity on the part of several or certain states, or for a certain time.
4. Such declarations shall be deposited with the Secretary-General of the United Nations, who shall transmit copies thereof to the parties to the Statute and to the Registrar of the Court.
5. Declarations made under Article 36 of the Statute of the Permanent Court of International Justice and which are still in force shall be deemed, as between the parties to the present Statute, to be acceptances of the compulsory jurisdiction of the International Court of Justice for the period which they still have to run and in accordance with their terms.
6. In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court.”
Now, while Article 36(1) involves both countries wanting to resolve the dispute, Article 36(2) doesn’t, if the country concerned recognizes the “compulsory” jurisdiction of the court “without any special agreement” with the other party to the dispute. Has Pakistan taken such a position? Yes, it has (for reference, please see this ). Which clause of Article 36(2) would this dispute fall under? It would certainly be clause (c), for it would be required for us to prove that our men have been tortured and this is a breach of international law.
Some may point out that countries often disregard ICJ judgments. True, but I doubt if Pakistan would dare to do so. If it does, try to have sanctions slammed. Or at least stop all trade with them, which benefits their economy much more than ours.
My question is — why are we not even so much as considering employing international law to redress these particular grievances?
Equally, I would like to point out, as much as many may hate me for saying this — while our blood boils for human rights violations committed against some of our men in uniform, it’s time for us to think whether it isn’t only natural for there to be outrage in Kashmir and the northeast when our men in uniform have committed human rights violations even against their own innocent civilians, who we claim to consider our own citizens.
[box bg=”#fdf78c” color=”#000″]About the author:Â The author is a freelance writer based in New Delhi. He has co-authored two short books, namely “Onslaughts on Free Speech in India by Means of Unwarranted Film Bans: An Issue Revisited in the Light of the ‘Aarakshan’ Controversy” and ‘Women and Sport in India and the World: A Socio-Legal Perspective’. A lawyer by qualification, he, till recently, worked in the Centre for Civil Society (CCS), a leading Delhi-based public policy think-tank, and is currently writing a book on Sino-Indian relations.To read his other posts, click here.[/box]