Justice unlikely for Saurabh’s father

Despite the father of slain Captain Saurabh Kalia approaching the Supreme Court to push the Indian government to take up the torture case with the International Court of Justice (ICJ), sources pointed out that India cannot go before the international court, without taking a complete u-turn on a 38-year-old policy.

Captain Saurabh and five sepoys were captured alive by Pakistani troops on May 15, 1999. Their mutilated bodies were handed over to the Indian side a few weeks later in June.

Kalia’s father, N K Kalia, a retired scientist, had approached the apex court with a complaint that the Indian government had been ignoring his son’s case for long. He also requested the Supreme Court to direct the Indian government to file a case against Pakistan in The Hague-based ICJ.

According to sources, within a year of the Kargil war, India had raised the matter both bilaterally and in multilateral forums.

The then foreign minister Jaswant Singh had written a letter on August 20, 1999, and again eight months later, on March 3, 2000, raising the matter directly with his Pakistani counterpart, Sartaj Aziz. India had also raised the matter at the United Nations, once in September 1999 and then in April 2000, during the 56th session of the Commission of Human Rights.

Further, officials point out that when India had formally accepted the jurisdiction of the ICJ in 1974, it had accepted its charter with some provisos.

India had made the condition that disputes with the Commonwealth members not be taken up with the ICJ. Further, the ICJ charter mandates that disputes can be taken up only when both the parties involved accept the adjudication. India had earlier used these provisos to argue that the ICJ did not have jurisdiction in Pakistan’s move to get compensation for the shooting down of a Pakistani Atlantique plane.

This was accepted by the ICJ. “If we want, we can revoke the provisions with the ICJ jurisdiction in 1974. But even that will not help, as it will take about 12 months to accept the changes and  Pakistan  will invoke its own provisions for not allowing the ICJ to judge the dispute,” official sources added.