By V. S. Mani appeared in "The Hindu" on June 29, 1999
The writer teaches international law at the Jawaharlal Nehru University, New Delhi

THE MILITARY engagement between India and Pakistan in the Kargil sector on the Indian side of the Line of Control (LoC) cannot be dismissed as yet another border skirmish or as a ``routine incident'' of Pakistani artillery providing fire cover to enable Pakistani-trained Kashmiri militants along with a few Afghans or other mercenaries to sneak into the Kashmir Valley in order to step up the flagging terrorist activities there. This summer the army alone could not push out the swarms of invaders who had crossed the LoC even before the snow started melting. The air force came to its rescue, as part of Operation Vijay, and started bombardment of the numerous outposts and camps of the invaders. The invaders comprise both regulars and irregulars drawn from the Pakistani army accompanied by Stinger missile-wielding Taliban and other Afghan mercenaries who are reportedly paid as much as $18,000 to 20,000 per head. Their objective is to cut off the supply route of the Indian army by taking control of the Srinagar-Leh National Highway and forcibly occupying a large tract of Indian territory across the LoC overlooking the Kargil heights.

The military engagement started on May 5 last when the army sent a six-member reconnaissance patrol towards the LoC under the command of Lt. V. Kalia. The patrol never returned. The next day, however, Radio Skardu from the Pakistani side of the LoC reported the capture of Kalia. A few days later, another recce patrol of eight soldiers was dispatched to the Batalik area to the north of Kargil. It also disappeared without trace. It was subsequently learnt that its leader, a lieutenant and another soldier fought and died providing cover for the retreat of the rest of the patrol. Reports of sightings of newly-erected/occupied Pakistani tents in scores over an area 7 to 100 km deep into the Indian territory started powering in. On May 14, two army helicopters were downed by the infiltrators. By the third week of May, intense hostilities broke out. Pakistanis, both the infiltrators and the regular Pakistani army from across the LoC, indulged in indiscriminate firing. They hit hospitals and other civilian targets, including residents, most of whom are Shia Muslims.

After a meeting of the Cabinet Committee on Security on May 25, the Government authorised the launching of `Operation Vijay' to flush out the infiltrators. The IAF mounted aerial bombardments. One of its aircraft was shot down by Pakistani missiles fired from across the LoC. Another developed engine failure and crashed on the Pakistani side. The pilots of both the aircraft parachute and were caught by the Pakistani army. One of them, Sqn. Leader Ajay Ahuja, was shot dead in cold-blood and his body handed over to the Indian army, while the other, Flt. Lt. S. Nachiketa, was taken prisoner and released through the good offices of the International Committee of the Red Cross (ICRC) on the eve of the Pakistani Foreign Minister's visit to New Delhi on June 12.

There has been ample evidence of the direct involvement of the Pakistani army, even if one questions (as the Foreign Minister did in New Delhi) the admissibility of the taped telephonic conversations between the Pakistani Chief of Army Staff, Gen. Pervez Musharraf (then in Beijing) and his Chief of General Staff, Lt. Gen. Mohammad Aziz (in Lahore). There is clear evidence of premeditation and months of planning of the Kargil operation. Many of the Indian Prisoners of War (PoWs) are being held by Pakistan with their existence denied. The members of the recce patrol led by Lt. Kalia returned home dead, their bodies bearing tell-tale evidence of mutilation, torture and other inhuman and degrading treatment at the hands of the Pakistani army: it was an exemplary show of barbarism that shocked the public conscience.

The Pakistani perfidy violating the established LoC appears to have brought to naught the much-publicised, newly-found camaraderie with the Prime Minister, Mr. A. B. Vajpayee's historic bus ride to Lahore and the signing of the Lahore Declaration, even as Pakistani army was hatching the Kargil operation.

The principal legal issues are: (a) the status of the LoC, (b) acts of unlawful use of force, (c) the right of self-defence, (d) deployment of mercenaries on Indian territory, (e) violations of international humanitarian law applicable in armed conflict and (f) the role of ICRC.

The LoC, an Indo-Pakistan euphemism for a ceasefire line of the United Nations fame, was clearly established in 1972 on the basis of as many as 19 mosaic maps agreed upon by both sides. It has held the ground to this day, respected by both sides, save for some sporadic Pakistani artillery fire to cover the periodic infiltration of Pakistan-trained terrorists and supporting mercenaries, with India often returning the fire. Pakistan now argues that the LoC has not been transcribed on the ground terrain with any certainty. India finds this argument rather specious, betraying the malafides of Pakistan in justifying its current military operations. How does a legal and factual boundary, respected so long by both parties, suddenly become unclear, uncertain and difficult to locate on the ground? Even assuming (but not admitting) that it is so, does that permit the use of force? And why was it never raised earlier at the bilateral level, during the 27 years of the existence of the line?

The relevant provisions of Article IV of the Shimla Agreement of July 2, 1972 are:

``In order to initiate the process of the establishment of durable peace, both the governments agree that: (i) Indian and Pakistani forces shall be withdrawn to their (respective) sides of the international border; (ii) In Jammu and Kashmir, the Line of Control resulting from the ceasefire of December 17, 1971 shall be respected by both sides without prejudice to the recognised position of either side. Neither side shall seek to alter it unilaterally, irrespective of mutual differences and legal interpretations. Both sides further undertake to refrain from the threat or use of force in violation of this line.''

Evidently, the emphasis on the inviolability of the LoC is at par with that of the traditional international boundary. After all, the political boundary determines the physical manifestation of the territorial integrity of a country. The Shimla Agreement ratified by both countries (and approved by their Parliaments) highlights the absolute inviolability of the LoC and either party is explicitly interdicted not to resort to unilateral measures including the use of force to alter it in any manner, even under the pretext of transcribing it on to ground. The only permissible way of altering or `clarifying' it is by bilateral negotiations and other peaceful means as may mutually be agreed. Article I (ii)0