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.
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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.
