Govt surrenders to Pakistan on Kargil hero

NEW DELHI: Barely three months after a video of a Pakistani soldier admitting that the 32- year- old Indian Army officer was tortured and killed during the 1999 Kargil war, the government has decided to bury the cause. An affidavit filed by the Centre on a petition in Supreme Court seeking referral of the case to the International Court of Justice (ICJ) says it can’t be done.

The Ministry of External Affairs (MEA) says in the affidavit that it cannot move the ICJ as Pakistan might not permit it, and no country can be so compelled to. It says the effect on relations with our neighbour country has to be kept in mind, and that “moving the ICJ is not a legally enforceable right”. Capt. Kalia, of the 4 Jat Regiment, was the first Army officer to report large- scale incursions by the Pakistan Army in the Kargil region in 1999. He was captured by Pakistani troops along with five soldiers on May 15. The bodies were handed over to India by the Pakistan Army on June 9.

The bodies had been burnt with cigarettes, ear-the drums pierced with hot rods, eyes punctured and removed, most teeth and bones broken, and limbs and genitals cut or chopped off. The injuries were found to predate death.

The affidavit filed by B. Shyam, Director (Pakistan) in the MEA, said: “It is highly unlikely that Pakistan will consent to India's proposal to submit the case to ICJ by special agreement when it has treated the allegations as absurd… a state cannot be compelled without its consent to submit to a dispute filed by with another state to international adjudication.” Pakistan has maintained that the bodies of Kalia and five Indian soldiers were found in a pit, and they probably died because of the extreme weather.

“The video proved my son did not die due to bad weather but was killed in the hands of his captors. He was tortured.

It is surprising that the Centre has not considered the new evidence which has come on record, and still goes by Pakistan version,” Kalia’s 64-year-old father NK Kalia told MAIL TODAY from Palampur in Himachal Pradesh.

The Central government had at the time summoned the Deputy High Commissioner of the Pakistan embassy in New Delhi and issued a notice on the breach of the Geneva Convention.

“Why is Indian government going soft on Pakistan even after several wars, continuing infiltration and export of terror? It is not just an issue of my son but no other Indian soldier shall be treated like this. There should be a deterrent,” NK Kalia says, adding he will submit CDs of the Pakistani soldier’s TV confession to the Supreme Court.

Kalia’s lawyer, Arvind Kumar Sharma, told a bench headed by Justice RM Lodha: "New evidence has come on record.

This is a fit case to be referred to the ICJ as the torture is a clear violation of Geneva Convention on treatment of war prisoners.

Pakistan has dragged India many times to the ICJ, then why cannot we on the issue?” The court will hear detailed arguments on Wednesday.

“Rows between India and Pakistan may be governed by the Simla pact under which they are to be settled bilaterally but in such issues India is definitely not going to get justice and it has to be taken to the international court,” Sharma adds.

The MEA is also worried about the fallout of approaching the ICJ on the bilateral relations. The affidavit says: “A decision to approach the International Court of Justice on any issue is a decision which falls within the executive mandate of the government. The jurisdiction cannot be invoked unilaterally as it has effect on foreign relations as well as future implications for India as the compulsory jurisdiction of the ICJ is applicable on reciprocity.

This decision, therefore, is to be taken from the policy and national perspective and cannot be agitated as a legally enforceable right.” Defence Minister AK Antony had written last month to Captain Kalia’s parents, claiming India was bound by the Simla Agreement and had pledged to settle all differences with Pakistan at bilateral level. The letter was in response to question raised by Rajya Sabha MP Rajeev Chandrasekhar who has taken up the cause of Captain Kalia at various levels, highlighting the brutality of the Pakistan Army during the Kargil conflict.