New Delhi, November 28
Even as the family of Capt Saurabh Kalia has petitioned the Supreme Court seeking directions to the Union Government for moving the International Court of Justice (ICJ), it has come to light that the Centre had opposed a similar move, though in a separate matter, six months ago.

In a case pertaining to 1971 war prisoners, the government had even obtained a stay from the Supreme Court after the Gujarat High Court asked it to move the ICJ. The petition was filed by Lt Gen JS Aurora (retd), who took up the case of Indian Prisoners of War (believed to be 54 in number) languishing in various jails of Pakistan.

Acting on the plea, the HC, in its order on December 23, 2011, had said: “The Union of India shall, within two months, from today approach the ICJ alleging breach of the Simla Agreement (1972) at the instance of Pakistan for not releasing the soldiers”. On May 2, 2012, the apex court stayed the order saying “until further orders, direction of the impugned judgment shall remain stayed”.

Rajeev Chandrasekhar, a Rajya Sabha MP, who has questioned the government in the Kalia case, told the Tribune: “India will not be able approach the ICJ as it has sought to exclude disputes with Commonwealth members and those relating to situations of hostilities, armed conflicts from the purview of the ICJ.”

Chandrasekhar suggests that Pakistan Army must be held accountable as has been the norm since the Nuremberg trials of World War II. The Nazis were tried in the said trials.

“Independent lawyers and I have decided to pursue the case with United Nations Human Rights Council and seek justice for Capt Kalia,” said the MP.

Lt Gen Mohinder Puri, who was the Commander of the 8 Mountain Division (now based at Kumbathang near Kargil) during the 1999 conflict, says: “We cannot resolve this bilaterally with Pakistan. I would favour international intervention”. The torture and death of Capt Saurabh Kalia clearly falls within the purview of contravention of the Geneva Convention on POWs, says Kalia family’s lawyer Arvind Sharma. “Article 3 of the convention - drawn up after WW-II - clearly states that soldiers who have been detained or have laid down arms shall not be subjected to “murder of all kind, mutilation, cruel treatment and torture, humiliating and degrading treatment, passing of sentences, carrying out of executions,” he says.

Article 4 of the conventions classifies the PoWs as “members of the armed forces of a party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.” “It clearly means that even members of a resistance movement must be shown respect. Here, Capt Kalia was a member of the Army of the world largest democracy,” says Sharma.

Explaining the delay of 13 years in moving the apex court, Sharma says the family had been petitioning the Ministry of External Affairs and the Ministry of Defence. “The Armed Forces Tribunal was approached but it did not have the jurisdiction in such matters,” he said.