Areesh
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NEW DELHI: India may stand to lose by taking the issue of Kargil martyr Captain Saurabh Kalia's case to the International Court of Justice (ICJ). Experts said that not only is India sure to lose the case but also the mere act of approaching ICJ could open up to international arbitration contentious issues such as human rights violations and operations in Jammu and Kashmir across the Line of Control.
Even as Congress and BJP accuse each other of failing to act in the matter, the minister of state for external affairs General (retd) VK Singh had said in the Rajya Sabha earlier this year that a solution through international courts "was not found feasible". Singh had reiterated the position taken by the BJP government on the issue immediately after the Kargil conflict when the air force shot down a Pakistan Navy Atlantique aircraft in Gujarat, in an apparent act of revenge.
The same line — that ICJ has no jurisdiction over India and Pakistan — was taken by the Congress-led UPA in 2012 when Kalia's father took up the case to the Supreme Court. However, after a media campaign berated BJP for towing the line of UPA on the Kalia case, the government on Monday made a U-turn, saying that "taking into account the exceptional circumstances" the government is open to invoking ICJ's jurisdiction over the matter.
Given the stand that India took up during the Atlantique incident, there is no chance of the case being ruled in the country's favour at ICJ, experts said. Immediately after the shooting down of the Pak Navy aircraft, Pakistan had dragged India to ICJ, invoking the UN charter. However, India had then cited a 1974 declaration that ruled out the jurisdiction of the ICJ over cases involving present or past commonwealth nations.
If India approaches ICJ with the Kalia case, Pakistan is likely to use the same provisions to block the move. "The government is simply playing politics. It is trying to show that it is more sensitive to the interests of the armed forces than UPA was but it knows that it does not have the slightest chance of getting any justice for Capt Kalia and the five jawans who were captured with him and tortured," said Satyabrata Pal, who retired as the High Commissioner to Pakistan in 2009.
The career diplomat said the 1974 deceleration debarring the ICJ jurisdiction over bilateral matters was an important safeguard that was invoked during the Atlantique incident. "It is cruel as it is in raising the hopes of the families for justice but it is also particularly foolish and shortsighted as the government knows simply to make a point you cannot withdraw a line of defence that was put in specifically to guard against such problems," the retd IFS officer said.
However, if the government does approach ICJ, the safeguard will become invalid and open up India to international arbitration on issues such as J&K. "If, in the future, Pakistan raises any issue against India such as the violation of human rights in the Valley or border incidents, we would have shot ourselves in the foot," Pal said.
India stands to lose if Captain Kalia case goes to ICJ - The Economic Times
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