Govt to seek SC advice on taking Kalia case to ICJ

Will act as per court's direction: Sushma

Govt to seek SC advice on taking Kalia case to ICJ

The NDA government said on Monday that it would seek the Supreme Court's advice on whether it could approach the International Court of Justice (ICJ) against Pakistan on the case of Captain Saurabh Kalia who was tortured to death during the Kargil episode.

External Affairs Minister Sushma Swaraj said since Capt Kalia's torture created exceptional circumstances, the government would change its affidavit in the Supreme Court and ask if there are appropriate legal provisions under which it can move the ICJ. “If the court gives a nod, we will take the issue to the ICJ,” she said.

Sushma's statement marks a departure from the position taken by the government in the past, when the martyr's father N K Kalia approached the apex court seeking justice for his son. The case will come up for hearing in court on August 25.

“The 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 and hostilities as they are both members of the Commonwealth. This position, which was stated in an affidavit filed by the government on September 26, 2013, has now been reviewed,” said Ministry of External Affairs (MEA) spokesperson Vikas Swarup.

The Central government reversed its stand after the Narendra Modi regime received flak for toeing the same line as the UPA regime.

Responding to a question in the Rajya Sabha in July 2014, MoS for External Affairs Gen (retd) V K Singh said the possibility of seeking legal remedies in the case through international courts was not found feasible. Singh followed the same argument as UPA-era defence minister A K Antony, who had said the case could not be dealt under the Geneva Convention as India was committed to settle all issues with Pakistan bilaterally. On Monday, Swarup said: “The government will request the Supreme Court to pronounce on the legality of the stand, taking into account the exceptional circumstances. The government would be open to invoking the jurisdiction of the International Court of Justice.”

In 1999, the MEA had raised the issue at the UN General Assembly and with the Commission of Human Rights next year. Subsequently, the MEA stand was that since India-Pakistan issues are to be dealt with bilaterally, the case could not be taken up at the ICJ, forcing the martyr's father to move the SC.
 Sordid saga

On May 15, 1999, a young captain from 4 Jat Regiment, Saurabh Kalia, and five of his men were on a routine patrol in the Bajrang post in the Kaksar sector of Jammu and Kashmir when they were captured by Pakistani troops. They were kept in captivity for over three weeks and subjected to brutal torture, evident from the injury marks on their bodies, handed over by the Pakistan Army on June 9, 1999. Post-mortem examination showed the soldier were burnt with cigarettes, their ear drums pierced with hot rods, eyes removed, bones broken and limbs and organs chopped off. Finally, they were shot dead. Pakistan, however, claimed that the 22-year-old Kalia and his men had died due to harsh weather conditions.

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