Sixteen years have passed since the alleged torture death of Captain Saurabh Kalia at the hands of Pakistani soldiers during the Kargil War of 1999, but there remain strong feelings that justice has been denied to the brave armyman. Kalia's father has garnered tremendous support for his online petition urging the Indian government to take the case to the International Court of Justice (ICJ). So far, though, the government has refused to budge, stating that such a move would be "impractical".
This stance, while unpalatable to many, is rooted in high-stakes issues that transcend the immediate case. Here I will attempt to succinctly provide a clear overview of international law as it applies in this case, as well as its limitations.
A legal overview
The international law on this issue provides two avenues of addressal. The first branch of international law where justice can be achieved is jus contra bellum (as codified under UN charter) and the second branch is jus in bello (as codified under Geneva Conventions, 1949 and its Protocols). Jus contra bellum is a law that governs the existence of a justification by a state for resorting to war --- it applies generally to a pre-war scenario. Jus in bello is popularly known as the International Humanitarian Law (IHL) or Law of War. Now let us see how these two systems work and how Saurabh Kalia's family's demand could be addressed within these frameworks.
"India's continued policy regarding J&K allows for only a bilateral resolution per the Shimla Accord. To involve the ICJ would upset the status quo. "
UN Charter and International Armed Conflict: A law to determine liability of State
The purpose of the UN charter is the maintenance of international peace and security. The UN charter constitutes six organs, of which the International Court of Justice (ICJ) is the judicial body, and vested with the power to resolve dispute judicially, therefore, peacefully. A separate ICJ statute annexed to the UN charter was made so as to entitle those States who did not wish to sign the UN charter to have access to ICJ (Art.92, UN Charter). ICJ statute mandates only States to be the party of dispute resolution (Art.34 ICJ statutes). A dispute that a state can bring before it must be based on subject matter of UN charter or arising from any treaty in which ICJ has been mentioned as dispute resolution body [Art.36(1) ICJ statute] or if the States give a unilateral declaration accepting ICJ's jurisdiction making it compulsory on every matter with any state on reciprocal basis [Art.36(2) ICJ statute]. The obligations of the parties are mentioned in The principle of non-intervention (Art. 2(4)) primarily asks States, inter alia, to refrain from using force in their international relations and that they must not violate the territorial integrity of any other State.
Geopolitics and limitations under lCJ statute
Now, Pakistan's violation of the Line of Control (by the Northern Light Infantry), which is a de facto international border, was in clear contravention of Art.2(4) which prohibits using force against the territorial integrity of a state. However, this issue would not apply to Saurabh Kalia's death - it is only relevant as far as Pakistan's violation of India's territorial integrity by force and consequent violation of UN charter. ICJ can be a forum only for those matters where the state is liable -- not an individual. Additionally, ICJ does not have compulsory jurisdiction, and its powers are contingent on the consent of the member states of UN charter. The parties have the option to declare the jurisdiction of ICJ as compulsory [Art.36(2) ICJ statute] based on the principal of reciprocity. However, many states clarify the areas in which the ICJ may have jurisdiction and where it may not. India also has submitted a list under the compulsory clause jurisdiction of the ICJ statute. In the Aerial Incident Case, India used this clause against Pakistan by claiming that the ICJ did not have any jurisdiction over the matter (India submitted a list to the ICJ which prohibits it from trying any matter involving Pakistan or the Commonwealth). Hence, Pakistan's attempt to seek reparation for the shooting down of its aircraft by India was nipped in the bud at the jurisdictional stage of the matter.
Therefore, it is unlikely that India would repeal its reservation made under Art.36(2) because the dispute might internationalise the Kashmir situation.
Jus in bello: violation of the Law of War during conflict
The demand of Saurabh Kalia's parents is about the torture and subsequent killing of him in the hands of Pakistani armed forces. This matter does not fall under the UN charter. It's a matter that involves the IHL or Law of War.
However, while the IHL does provide for individual criminal responsibility the ICJ is not an appropriate forum. What may work better would be an international criminal tribunal. India could either demand for creation of new international criminal tribunal or can have access to the existing International Criminal Court. Since, ICC has neither been signed nor ratified by India, recourse to it is impossible except for a situation where Security Council acting under chapter VII ask ICC to try the matter.
Additionally, violation of IHL would invoke liability from both the sides; arguments of self-defence are immaterial under this law. Once the war has begun, both the parties are on equal footing and considered responsible for violations of IHL equally.
Geopolitical Reasons: foreign policy
The policy to keep the Kashmir outside the purview of trilateral or multilateral bodies for mediation or dispute resolution, post the Shimla Accord, would again be a deal breaker as the stakes are exponentially high. Another technical matter would be that IHL is only applicable when two states are at war. In the Kargil conflict, both parties fell short of acknowledging a state of international armed conflict, as India never went beyond LoC and Pakistan denied that the intruders had anything to do with them. It is precisely for this reason Pakistan never accepted the bodies of its soldier. On the other hand, India did not wish to escalate the matter by crossing the border and hence downplayed the nature and magnitude of conflict. All in all, India's continued policy regarding J&K allows for only a bilateral resolution per the Shimla Accord. To involve the ICJ would upset the status quo.