On the 1st of May 2017, the mutilated bodies of two personnel of the Indian Border Security Force were found in the disputed Line of Control (LoC) area in Jammu and Kashmir, India. In a press release, the Indian Army held the Border Action Team of the Pakistani Army responsible for the mutilation. The statement promised an "appropriate" response to such a "despicable act." Further, the defense minister said "such attacks don't even take place during war, let alone peace...the sacrifice of these soldiers will not go in vain." While acts such as these have been responded to through demarchés, military aggression or even war, justice is never gained for the families of the victims of such acts through the Indian government's recourse. Thus, an approach to the International Court of Justice (ICJ) was considered but, India invoking this option would pave the way for the internationalization of the Kashmir dispute. In this light, this article seeks to explain why India cannot take this matter to the International Court of Justice and even if it does, the ICJ can afford no relief.
Instances of Mutilation and Suspected Perpetrators
Mutilation is not new to the conflict along the LoC. In May 1999, six soldiers were held captive by the Pakistani Army, tortured for weeks and, finally, killed and handed over to India. In a conspicuous and outrageous violation of the Geneva Convention, the soldiers' ear drums were pierced with hot iron rods, eyes punctured and genitals cut off. The autopsy of the bodies also revealed that they were burned with cigarettes butts, their limbs were chopped off, teeth broken and skulls fractured during the torture. Even their nose and lips were cut off. However, the Indian Government refused to move the ICJ on this matter. In June 2008, a soldier who lost his way was captured by a Pakistani Border Action Team (BAT) and his body was found beheaded a few days later. Additionally, in January 2013 and October 2016, mutilated bodies of Indian soldiers were found along the LoC. Pakistan's governmental response has been uniform in such instances - they "categorically" deny any involvement. Whilst the claim that Pakistani troop's involvement in such incidents comes from the Indian government as well as the Indian media, no international media house has held Pakistan accountable or even acknowledged the involvement of Pakistan in such incidents of mutilation. Thus, it becomes critical to examine the evidence to indentify the perpetrators of such attacks. The Indian government has not presented any concrete evidence as regards Pakistani involvement vis-à-vis the latest incident. However, previous instances of mutilation suggest likely Pakistani involvement.
The 1999 incident saw the Pakistani army giving the mutilated bodies of the Indian soldiers, clearly indicating some involvement. Subsequent incidents have had autopsy reports to prove mutilation. As regards the perpetrators in such attacks, there exist two possibilities: one is the Pakistani Army and the other is militants in the Kashmir valley. In the latest instance of mutilation, the act took place during shelling and exchanges of fire between Indian and Pakistani forces. As such, only Pakistani troops were present at the time of this latest barbaric act. Similar patterns of events exist in all of these instances of mutilation. It might be argued that the evidence required to prove Pakistani involvement needs to be stronger, which lies at the root of the demand for the intervention of the ICJ. The ICJ could provide a credible and unbiased investigation and gathering evidence to determine the perpetrators and accord justice to the deceased. Moreover, ICJ intervention seems desirable because it is unlikely that the outcome would prove anything contradictory to India's claims. However, even if an investigation is conducted and the Pakistan Army held accountable, the perpetrators cannot be brought to justice.
International Law and Applicability
Both India and Pakistan are state parties to the Geneva conventions. As per Article 2 of the Geneva Convention Relative to the Treatment of Prisoners of War, the convention is applicable because there is an armed conflict between two High Contracting parties which are India and Pakistan. Since all instances of mutilations have seen Indian soldiers as victims in the Pakistan Army's hands, as per Article 4A(1) of the same convention, those mutilated can be classified as prisoners of war. Most importantly, Article 13 of the convention mandates the humane treatment of prisoners. It states "no prisoner of war may be subjected to physical mutilation" and doing so will be a serious breach of the conventions. With respect to the May 1999 mutilation, the Pakistani Army has blatantly violated the aforementioned articles by mutilating the bodies of soldiers.
However, even if Pakistani involvement were proven in the International Court of Justice, the conduct could not be prosecuted. This is because the jurisdiction of the ICJ does not apply to Pakistan in cases of armed conflict. This indemnity for armed conflicts also applies to India. The indemnity is offered by the optional jurisdiction declarations signed by the two countries respectively. Thus even the grossest form of violation of international humanitarian law is beyond the jurisdiction of the ICJ in cases of armed conflicts between India and Pakistan. Further, even if India approaches the ICJ at the cost of internationalizing the Kashmir issue, the exercise would be futile because of the optional jurisdiction clause. The Indian government invoked this jurisdictional immunity in the Atlantique incident, Case Concerning the Aerial Incident of 10 August 1999 (Pakistan v. India), in which the Indian Air Force shot down an unarmed Pakistani military patrol aircraft carrying 16 young trainee cadets near the international border at Kutch. The ICJ upheld the Commonwealth reservation and dismissed the case brought by Pakistan against India.
The demand for taking cases of mutilation accelerated after India was able to stay the execution of its national Kulbhushan Jadhav, Jadhav Case (India v. Pakistan), through an order from the ICJ. This cannot apply to the cases of mutilation for two reasons: 1) whereas the Jadhav case involved questions on the Vienna Convention on Consular Relations, the mutilation cases relate to the Geneva Convention and 2) whereas there was no armed conflict in the Jadhav case, all mutilations happened in the course of an armed conflict. The third Geneva Convention only applies to cases of war and armed conflict, both of which are exceptions to India and Pakistan through the optional jurisdiction declarations of the ICJ signed by the two countries respectively. The optional jurisdiction declarations legitimize the violation of the third Geneva Convention. Thus, for true justice to be done for the members of the families of those who were martyred through mutilation, India and Pakistan will have to withdraw their optional jurisdiction of the ICJ and comply with original jurisdiction with ex post facto effect. This, however, seems a utopian idea and unlikely to occur in the foreseeable future.
Surya Rajkumar is a student at O.P. Jindal Global University with interests in Indian geopolitics, international law and human rights. He has been published in various other sources including Oxford University's Human Rights Blog
Suggested citation: Surya Rajkumar, International Justice is Blind to the Mutilation of Soldiers, JURIST - Student Commentary, Jun. 16, 2017, http://jurist.org/dateline/2017/06/Surya-Rajkumar-international-justice-is-blind.php
This article was prepared for publication by Kelly Cullen, a JURIST Assistant Editor. Please direct any questions or comments to him at firstname.lastname@example.org