A Supreme Court petition demanding that the government take the case of the alleged torture and murder of six Indian Army men in Pakistan during the Kargil war to the International Court of Justice (ICJ) may flounder, legal experts say. They point out that the government’s own stated position in the 1971 Prisoner of War case is that Pakistani concurrence would be required for such a move.
Dr. N.K. Kalia, father of Captain Saurabh Kalia, a Kargil martyr who was made captive and, according to the Government of India’s own statements, subjected to brutal torture by the Pakistan Army in 1999, has moved the Supreme Court seeking directions to the Central government to take up his son’s case with the ICJ. Pakistan has consistently denied that it had tortured the six men or even that they had been held in custody.
The government, on Tuesday, while describing the fate that befell Kalia and five other soldiers as “completely unacceptable,” said it would do “whatever is possible” in the case. Salman Khurshid, External Affairs Minister, told reporters, “This is a matter we have taken up at the highest level over the years.”
Earlier, in the case of 54 missing Prisoners of War of the 1971 conflict with Pakistan, the government’s position was that it was trying to resolve the matter without third-party mediation. The government told the Gujarat High Court that was hearing a petition: “There is no scope of passing any direction upon the Union of India to refer the dispute before the International Court of Justice as such a reference can be made only on the joint prayer of both the countries and thus it is not possible for the Indian government alone to approach the International Court of Justice without the concurrence of the Government of Pakistan.”
The High Court rejected this stand and directed the government to approach the ICJ. But in May of this year, based on the government’s plea, the Supreme Court stayed the operations of this aspect of the Gujarat High Court judgment.
Says Maj. Navdeep Singh (retd.), an advocate on military matters: “The sympathy shown by ministers and politicians in Capt. Kalia’s case is ironic when the government has itself expressed its unwillingness to this effect in a similar case, on affidavit and oath, before the SC.”
On May 9, 1999, Capt. Kalia, was leading a patrol of the 4 Jat Regiment in the Kaksar region of Kargil when he and five other soldiers were caught by Pakistani intruders. On June 14, their bodies were handed over to the Indian Army. The government said, following the post-mortem, that the bodies were brutally mutilated and bore torture marks.
Since then, Dr. Kalia has approached several agencies, including the Armed Forces Tribunal, seeking justice. “Thrice I approached the President of India, but each time I have received the standard reply that the case is being forwarded to the appropriate authority,” he told The Hindu. The Armed Forces Tribunal dismissed his case on the ground that the case did not come under its jurisdiction.
Gen. V.P. Malik (retd.), the Army Chief during the Kargil war, told The Hindu: “We wanted that the post-mortem of the bodies should be done by the International Committee of the Red Cross or the Indian Red Cross, but both bodies refused. Once the post-mortems done by our own doctors showed the inhuman torture they had been subjected to, I gave the report to Jaswant Singh, the then Defence Minister, who then briefed the press.”
Says Jas Uppal, the U.K. based human rights lawyer who has been advising Dr. Kalia to approach the Supreme Court: “We are focusing on gross international breaches and violation of rules of engagement during war by Pakistan which amounts to a war crime.” Mr. Uppal told The Hindu: “The international community needs to investigate and prosecute this case.”