It's time India should move ICJ against Pak on all issues

On Pakistan announcing the death penalty for retired Indian Navy commander Kulbhushan Jadhav, following a ridiculous Pakistan Army kangaroo trial accusing him to be an Indian spy and terrorist, New Delhi finally decided to approach the International Court of Justice (ICJ), which has stayed his execution. Whether the government’s decision to approach the ICJ was as a result of Subramanian Swamy’s suggestion or other reasons is not yet known, but such a step has been taken after many decades of declining to do so. And just as well, as the ICJ’s response has been so far.

In September 2015, when the Supreme Court questioned the Centre for not moving the ICJ to release 54 Indian armed forces personnel, who were captured by Pakistani forces but not registered as prisoners of war (PoWs), were not repatriated and kept languishing in Pakistan’s jails, the BJP-led government said that it could not do so. As such, the BJP government  stuck to the former United Progressive Alliance government’s stand, which was nothing short of specious.

In 1999, Lt. Gen. J.S. Aurora, C-in-C, Eastern Command during the 1971 India-Pak/Bangladesh Liberation war, filed a PIL before the Gujarat high court seeking that the 54 prisoners believed to be held in Pakistani jails should not be treated as “presumed dead” but treated as “on duty” for all purposes, till the notional date of their retirement, so that the next of kin could receive financial benefits as applicable to a serving soldiers. The litigation also sought that the issue of release of prisoners from Pakistani jails be taken up with international institutions for justice.

Accepting his plea the high court in 2011 directed the government to grant all service and retirement benefits to such PoWs by treating them as being alive, and more importantly, directed the government to approach the ICJ on the issue of Pakistan not releasing these Indian military prisoners.

Interacting with this writer on this matter, Brig. V. Mahalingam (Retd) reiterated what he had earlier written stating: “Guess what the government did? Instead of implementing the court order, the government filed an appeal on May 2, 2012 in the Supreme Court against the Gujarat high court ruling and obtained a stay order. Is this not iniquitous and disgraceful? The government seems to have made up its mind to abandon the desolate families of soldiers who had died, gone missing, held as PoWs or the survivors and spend no more money on them. Isn’t this the reason why though compelled to retire at an early age no “golden handshake” kind of package or enhanced pensions are paid to soldiers unlike public sector or bank employees? Will anyone in the world, except the suicide bomber, be prepared to risk their lives and make the supreme sacrifice knowing fully well that the government will make their families run around in circles over legitimate financial and other support after their demise? Wouldn’t the government’s inaction to the atrocities committed on Captain Saurabh Kalia expose the reality that if something similar happens to him he too would be abandoned as in the case of Captain Kalia and his family consigned to a state of penury and misery? Can a country hope to build a motivated fighting force ready to make the supreme sacrifice with this approach of the government?”

Brig. Mahalingam also referred to a respected bureaucrat Sivaraman, IAS, who when informed of this development stated: “As a responsible former finance secretary of the largest state in India for five years and the longest serving revenue secretary to the Government of India with around 30 years of experience in state government, national, international and private sector finance, if the notification is true, the officer who framed these rules should be hanged on the nearest tree or shot for endangering national security... In my view the chief should call for its immediate withdrawal and if they do not do so resign in protest.”

When asked if the POWs are alive or not, the Centre said that Pakistan had never owned up their presence. However, relatives of all 54 prisoners have been given service and pension benefits as per the Gujarat high court order in December 2011 and the Supreme Court had slapped a '20,000 fine on the Centre over its perceived failure to file details about 54 defence personnel languishing in Pakistani jails.

Even in the case of utterly brutal treatment meted out to Captain Kalia and four other soldiers of the 4 Jat Regiment in the 1999 Kargil war, the government maintained that it could move the ICJ against Pakistan.

In gross violation of the Geneva Convention, the Pakistan Army subjected Captain Kalia and his soldiers to horrendous torture during which their eardrums were pierced with hot iron rods, eyes punctured and genitals cut off. The autopsy of the bodies also revealed that they were burnt with cigarette butts. Their limbs were also chopped off, teeth broken and skull fractured during the torture. Even their nose and lips were cut off.

The BJP government had said that moving the ICJ against Pakistan in the matter is not “practical”. Captain Kalia’s family had demanded for an international probe in the Supreme Court. Ironically, when in Opposition, the BJP had slammed the UPA government for not acting against Pakistan.

Now, India must move the ICJ for all cases of the Pakistan Army mutilating Indian defence/security personnel till date. Having recommended in a number of articles for India to do the same, this writer, who reviewed Supreme Court advocate Aman M. Hingorani’s book, Unravelling the Kashmir Knot, which discusses India moving the ICJ, interacted with him again. Mr Hingorani maintained that mutilations by Pakistan are in gross violation of the international law. There is nothing to prevent India from taking Pakistan to the ICJ at The Hague for condemnation, reparation and damages. The Simla Agreement and the Lahore Declaration do not preclude India from doing so. In any case, Article 103 of the UN Charter provides that in the event of a conflict between the obligations of the UN members under the charter and their obligations under any other international agreement, their obligations under the UN Charter shall prevail. India would be well within its rights to move the ICJ against Pakistan for breaching its international obligations. For the purposes of according jurisdiction to the ICJ, India could waive its Commonwealth reservation with respect to Pakistan to this limited extent.

However, Mr Hingorani holds that such legal action should not be confined to Pakistan’s barbaric acts. Given the absence today of a military, diplomatic or political solution to the Kashmir issue, New Delhi must at least now make the legal reference of the Kashmir issue to the ICJ on the lines suggested in his book, which has been endorsed as the way forward by Justice M.N. Venkatachaliah and Justice A.M. Ahmadi, former chief justices of India, Justice Ruma Pal, former Supreme Court judge and several strategic, policy and defence experts.

The writer, a retired Army officer, is a defence and security analyst based in New Delhi