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Wednesday, November 28, 2012

The International Court of Justice (ICJ) quandary in Saurabh Kalia’s case


Many issues arise from the unfortunate series of events in the last few days related to a father’s fight for justice.

Mr Kalia has spent the better part of the past 13 years seeking justice for the perpetrators of the barbarism unleashed on our soldiers in the Kargil War, including his son, Late Captain Saurabh Kalia.

It seems that the Govt has done little to apply balm in this very unfortunate event which can send chills down the spine of any living soul. As reported widely by the media, Mr Kalia has now decided to approach the Supreme Court praying for directions to the Union of India that it should approach the International Court of Justice (ICJ) in this regard.

Elements in the Govt have rendered their voices of support to Mr Kalia’s request to the official establishment for approaching the ICJ. However such voices of support are hollow to the say the least. I say this because similar directions to the Govt of India for approaching the ICJ were passed in December 2011 by the Gujarat High Court in a long pending case filed by the late General Aurora, the details of which were reported earlier on this blog. However the Central Govt approached the Supreme Court challenging the directions of the High Court as far as they related to approaching the ICJ (Para 27(a) of the HC judgement). The Central Govt had also sought a stay on the operation of the directions of the HC which was granted by the Hon’ble Supreme Court.

If true, it thus seems silly when as reported it is stated by the Govt that the file on the Saurabh Kalia issue related to the matter of approaching the ICJ is still alive, pending and shuttling between the Ministries of Defence and External Affairs. I say it is silly since the Govt has already made it clear on oath in Gen Aurora’s case that it is not in favour of approaching the ICJ, and has in fact obtained a stay on the HC directions thereafter. Double speak or lack of coordination, I cannot say with certainty till the time a clear-cut statement is issued by the MoD or MEA.

There is yet another angle to the matter. Vide Article 36 of the applicable statute, the ICJ can only be approached by States and that too with the consent of the parties involved, that is, India and Pakistan in this case. In order to approach the ICJ without consent, the jurisdiction of ICJ needs to be explicitly mentioned as conferred by the treaty under question. The list of treaties that confer jurisdiction on the ICJ does not include the one infringed in this case and hence in that sense, even the hands of the Govt are tied. It needs to be seen and examined whether the SC would be able to resolve this subject and provide guidance to the Govt by way of judicial intervention or interpretation of an international statute resulting in providing leverage of approaching the ICJ.

That said, even in case of a direct legal impediment, it was incumbent upon the Govt to at least try resolving the issue or ironing out the creases or finding a way of assuaging a father’s quest. After all, our MEA is fully competent to find a via-media in such intricate issues. The Govt could have also tried to seek consent of the Pakistan Govt for approaching ICJ but I doubt if such steps were taken. It is unfortunate that a father is being made to seek judicial intervention in a matter which should have been sensitively handled by the Govt’s own experts on the subject operating in this domain. And as stated above, how far the SC would be able to intervene also remains to be seen in view of the inherent impediment in the statute governing jurisdiction of the ICJ.

The ball is, and also logically should firmly be, in the Govt’s court and it would be nothing but plain legitimate expectation for us to hope that the Govt takes it up in the right earnest or makes a statement in the SC when the case comes up for hearing that it shall take up the issue before the right forum forcefully and try its best to take it to its logical conclusion thus providing the much required balm to the family which has suffered for the last 13 years.

The barbarism is not to be forgotten and could have also been compounded by the fact that the players involved were that of the Northern Light Infantry, then an irregular paramilitary force, in composition almost a militia comprising tribals, and not troops of the Regular Pak Army.

That aside, the respect that is due towards soldiers of even the other side, and the human element after death in war, can be gauged in this rare video which shows the respect and salutations awarded to the enemy after death while handing over bodies to representatives of the other Army.

Let us all hope that no parent is made to suffer this ignominy ever again in any Army

5 comments:

ANUPAM said...

India needs a war every 5 years to make realize the importance of martyr's like subject case....extreamly sad... otherwise such issues were and will remain a kind of memento that are only remembered on 15th aug and 26th jan...JAI HIND!!...salutes to father at least who is fighting still with a hope in this grt country...:-(

ninihala said...

Dear Navdeep,
I will make a few points.
1. Atrocities committed upon Capt Kalia constitute a war crime and should be dealt as such. If, as you say, ICJ lacks jurisdiction (which I doubt and will come back after study, ICC can be approached.
2. In the Nuremberg Trials, it was firmly established that such acts are triable even if the court otherwise lacks jurisdiction.
3. You have suggested that govt should have found "a way of assuaging a father’s quest" i.e something short of bringing perpetrators to trial and justice. Navdeep, that will be miscarriage of justice. How can you even think of satisfying the father with a lollypop. And then, not only father, we the other soldier-citizens are also interested to se that perpetrators meet their maker for this crime. It is not a matter between Dr Kalia and NLI, we compatriots of Capt Kalia are also party.
4. Lastly is the matter of NLI not being part of regular pak army and hence pak govt somehow not being accountable for their acts. That is pure b@#$%^&t and you know it. A State is responsible for acts of all it's combatants and citizens.
Our diplomacy has repeatedly failed us soldiers. We are yet to get back our soldiers held in pak captivity since 1971 war. I can cite more examples but that is not core of my argument. Successive govts, for fear of internationalizing Kashmir issue, have refrained from approaching ICJ and ICC etc, all to great disadvantage of India's soldiery. All political parties are guilty of this mindset, fostered by Foreign Min mandarins.
Time has come to get rid of these chains and breath in fresh air.

Vasundhra said...

A TRIBUTE TO "THE GOVERNMENT OF INDIA" the real 'VULTURE' Vultures are those who desert their Colleagues under adverse environ but the GREATEST VULTURE is THE GOVERNMENT which disowns its own SOLDIERs. WOULD AMERICANS would have done what GOVERNMENT OF INDIA has done. Take ISRAEL, Except to SALUTE in acceptance of their actions I can think of nothing else. WISH MY COUNTRY would once in a while act like ISRAELIS.

LASTLY

They didn’t just pluck your eyes out, Capt Saurabh Kalia,
They gouged out ours too.
Or would we have been blind to your father’s agony,
His cry for ‘justice’ for all these years?

They didn’t just pierce your eardrums, Capt Kalia,
They poured hot oil in ours too.
Or would we be deaf to your mother’s fitful sobs
And her pitiful cry of anguish?

They didn’t just burn your chest, Capt Kalia,
They carved out our bleeding hearts too.
Or would we, as a nation, have been so heartless
As to forget our Kargil war hero?

They didn’t just mangle your private parts, Capt Kalia,
They castrated an entire nation.
Or would we be so impotent that we yearn for aman
While they plot yet more jihadi crimes?

When they ambushed you in the Kargil heights, Capt Kalia,
They waylaid every one of us.
But you died so that we may live
Our shameless, ungrateful lives.

We sent you to war at age 22, Capt Kalia,
Which is no viable diable age.
And yet, we have failed to honour you
The way your father sought.

Shame on us – and shame on you, Mother India,
That you would send your son to war
And yet not collect his martyred ashes
Or even shed a silent tear.

AN ANGUISHED INDIAN

PBOR said...

three comments in 10 days on such an important and senti issue :-( If blog was on increase of Rs 5, there would have been 500 comments, if not more. its says everything about the mind set of we the faujis and would be paid accordingly, Chawannis and not honour :-((((

Tukaram V Manerajurikar said...

TO:-PBORSIR, RT You are right on the point.