By V. S. Mani appeared in "The Hindu" on July 01, 1999

Pakistan involvement in the recruitment, training, financing and use of mercenaries across the LoC and the international border into the Indian territories has been a decade-old. The fall of the Soviet-backed Afghan Government further augmented it, with the increased availability of mercenaries now released from duty in Afghanistan, along with a surfeit of light but sophisticated weapons originally supplied by the United States. According to one estimate, over 80 per cent of the American-supplied military hardware originally for use in Afghanistan came to be deployed in the Pakistan-backed, cross-border terrorist activities against India. The Kargil situation has further revealed the nexus between the Pakistani army and the Afghan mercenaries now used in large numbers, often wielding weapons such as Stinger missiles against Indian targets, that too operating from within Indian territory. Pakistan has tried to dismiss the Indian complaint by describing the mercenaries, nay the whole lot of intruders, as ``freedom fighters''. For the first time since the beginning of the Pakistan-engineered cross-border terrorism in Kashmir, the evidence of overt Pakistani involvement in the recruitment, training, financing and deliberate use of mercenaries across the LoC is overwhelming and the international community has refused to accept the Pakistani explanation.

Pakistan bears both a delictual and criminal responsibility for employment of the mercenaries. Its Government has an obligation to bring to book not only the mercenaries but the high functionaries of the state (including the army) who used the mercenaries against India.

The Kargil conflict has brought to the fore a number of violations of international humanitarian law applicable in armed conflict by the Pakistani army, its irregulars and the mercenaries under its command and control. The inhuman torture, mutilation including disfigurement and removal of vital parts of the body, and the killing of Indian prisoners of war by the Pakistani army and its mercenaries have shocked the public conscience. With the direct involvement of the Pakistani army in the hostilities, the 1949 Geneva Conventions on international humanitarian law readily apply to the conflict. Under Article 13 of the Convention for the Protection of the PoWs, they are entitled to humane treatment. Further, ``Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health'' of a PoW in its custody is prohibited. ``In particular, no prisoner of war may be subjected to physical mutilation...''

Even assuming that there is some doubt about the nature of the armed conflict (an assumption not sustained by facts), the minimum guarantees of humane treatment of the PoWs, the sick and the wounded in action, and the civilian population, under the common Article 3 of all four conventions, have to be ensured. Indeed, as the ICJ declared in the Nicaragu case, these guarantees are part of general international law and do not depend on the character of the conflict (whether it is international or non-international). Article 3(1) prohibits ``violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture'' clause (a)0 as well as ``outrage upon personal dignity, in particular, humiliating and degrading treatment'' clause(c)0.

Pakistan has by all accounts violated these tenets of civilised behaviour and committed grave breaches of the international humanitarian law. It has a duty to proceed against the persons responsible for these offences. - for example, Article 129 of the Convention for the Protection of the PoWs. These are war crimes for which there is both individual and collective responsibility.

Nor has India come clean either. It has not given any account of the sick and the wounded, or of other persons taken prisoner during Operation Vijay. Military spokesmen have only reeled out figures of the number of infiltrators killed. It is impossible to believe that the Indian armed forces just went on a killing spree!

Pakistan did make an allegation that the Indian armed forces have used chemical weapons. However, the international community is yet to be presented with any convincing evidence. In terms of international criminal law, aggression and grave violations of international humanitarian law constitute international crimes for which both the state and the individuals committing them are criminally responsible.

The Kargil conflict also raises questions on the role of international organisations, particularly ICRC. The ICRC is essentially an NGO performing commendable humanitarian work in conflict situations the world over. Under the 1949 Geneva Conventions, it performs two levels of humanitarian functions. One, it may engage in ``humanitarian activities'' including, subject to the consent of the parties to the conflict, those for the amelioration of the sick and the wounded and the protection of the PoWs (Article 9 of the first three conventions and Article 10 of the fourth convention). Two, it may offer its services to assume the humanitarian functions performed by the Protecting Power, if the offer is accepted by the Detaining Power, or it may perform these functions, should it be requested to do so by the Detaining Power (Article 10 of the first three conventions and Article 11 of the fourth convention).

In fact, it was open to either of or both the parties to the Kargil conflict to seek the services of the ICRC, particularly for the protection of the sick and the wounded, and the PoWs. The ICRC's interposition would have given greater credence to India's claims. On the other hand, both the parties sought to exploit the international standing of the organisation by seeking its involvement in certain specific events, to derive some political mileage from it. The ICRC's good offices for handing over Flt. Lt. S. Nachiketa, an Indian PoW, were sought by Pakistan, when it failed to deliver him to the Indian authorities in full publicity on the eve of its Foreign Minister's visit to New Delhi.

On the other hand, according to some media reports, India had sought the ICRC's presence at the post-mortem on the mutilated bodies of six Indian soldiers handed over by the Pakistani army. However, the ICRC has denied that it was ``officially'' contacted by India for the purpose. Instead of following an eclectic approach, India should have authorised the ICRC to perform humanitarian activities of a Protecting Power within the zone of conflict, if it could allow some the ICRC role in respect of its anti-terrorist operations in Jammu and Kashmir.

The ICRC, on its part, allowed itself to be used by Pakistan in the handing over of Flt. Lt. Nachiketa, whereas it thought that its impartiality would be tainted if it was present at the autopsies of the mutilated bodies. It thus left itself open to blame as being partial to Pakistan. The fact established by the autopsies were based on medical and forensic sciences, which are by and large precise and verifiable. The presence of the ICRC would have ensured that the scientific conclusions reached by the autopsies were not biased, and that proper procedures were followed for and during the autopsies.

India's hesitation in approaching the United Nations seeking a resolution of the Kargil conflict is understandable for a number of plausible reasons, in particular the past record of the U.N. in suppressio veri et suggestio falsi in relation to Kashmir. However, India failed to enlist the credentials of the ICRC in the international projection and vindication of its stand on the conflict.