The Government on Monday said it could approach the International Court of Justice (ICJ) against the brutal torture of Kargil martyr Captain Saurabh Kalia by Pakistan in 1999 in view of the “exceptional circumstances” of the case. This contradicts India’s official position whereby it always questioned the jurisdiction of ICJ vis-à-vis armed disputes and hostilities with Pakistan.
However, the Government is willing to reconsider its earlier stand if the SC feels that Captain Kalia’s case was an “exceptional circumstance.”The Government clarified its stand on knocking on the door of ICJ after a massive uproar over media reports that it had decided against internationalising the issue. Captain Kalia and five other soldiers were captured alive on May 15, 1999 by Pakistani troops when they were on a patrol duty in Kaskar area of Kargil. They were kept in captivity where they were tortured. Their mutilated bodies were handed over to India after 15 days triggering outrage in the country.
Captain Kalia’s ear drums and eyes were found to have been punctured with hot rods and his limbs and genitals had been cut off. Most of his teeth and bones had also been broken. In 2012, NK Kalia, the father of the martyred soldier, moved the Supreme Court (SC) demanding an international probe. Now the Government is willing to reconsider its earlier stand.
"In the proceedings before the Supreme Court pertaining to the case filed by the family of Kargil martyr Captain Saurabh Kalia, Government of India has conventionally held the position that India and Pakistan cannot invoke the compulsory jurisdiction of the International Court of Justice in relation to disputes concerning armed conflicts, hostilities etc and as they are both members of the Commonwealth," Ministry of External Affairs spokesperson Vikas Swarup said.
He added that this position, which was stated in the affidavit filed by the Government on September 26, 2013, has now been reviewed. "The 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 which the Government would be open to invoking the jurisdiction of the ICJ.
Meanwhile, External Affairs Minister Sushma Swaraj in Udaipur said the Government discussed and reviewed the position held by it and previous Governments on the issue. "It has been decided that the way Captain Kalia was tortured created exceptional circumstances and therefore, the Government will change its affidavit in the Supreme Court and ask whether under legal provisions they could move ICJ. If the court gives a nod, then we will take the issue to the ICJ."
However, approaching the ICJ may not be an easy thing for India. First, because both parties in the dispute have to agree to the jurisdiction of the ICJ, and it is unlikely Pakistan will agree to the alleged crime. Second, with regard to disputes concerning Pakistan, India has maintained in the past that ICJ has no jurisdiction. In fact, based on India's objections, the ICJ court in Hague on June 21, 2000 ruled that it had no jurisdiction to adjudicate upon the dispute brought before it by Pakistan against India in a case concerning the 'Aerial Incident of August 10, 1999' in which Pakistan had claimed India had destroyed one of its aircraft. The ICJ observes that India's declaration contains a reservation according to which "disputes with the Government of any State which is or has been a Member of the Commonwealth of Nations" are excluded from the court's jurisdiction.