13 July 1973

 

General List No. 60

 
     

international Court of Justice

     
 

Trial of Pakistani Prisoners of War

 
     

Pakistan

 

v. 

India

     
     
 

Order

 
     
  Return Home
 
 
     
     
 
BEFORE: President: Lachs
Judges: Forster, Gros, Bengzon, Petren, Onyeama, Ignacio-Pinto, Morozov, Jimenez de Arechaga, Sir Humphrey Waldock, Negandra Singh, Ruda
   
PermaLink: http://www.worldcourts.com/icj/eng/decisions/1973.07.13_pakistani_POW.htm
   
Citation: Trial of Pakistani Prisoners of War (Pak. v. India), 1973 I.C.J. 328 (Order of July 13)
 
     
 
 
     
 

 [p.328]

The International Court of Justice,

Composed as above,

After deliberation,

Having regard to Articles 41 and 48 of the Statute of the Court,

Having regard to Article 66 of the Rules of Court,

Having regard to the Application by Pakistan filed in the Registry of the Court on 11 May 1973, instituting proceedings against India in respect of a dispute concerning charges of genocide against 195 Pakistani nationals, prisoners of war or civilian internees, in Indian custody,

Makes the following Order:

1. Having regard to the request dated 11 May 1973 and filed in the Registry the same day, whereby the Government of Pakistan, relying on [p 329] Article 41 of the Statute and Article 66 of the Rules of Court, asks the Court to indicate, pending the final decision in the case brought before it by the Application of the same date, the following interim measures of protection:

"(1) That the process of repatriation of prisoners of war and civilian internees in accordance with international law, which has already begun, should not be interrupted by virtue of charges of genocide against a certain number of individuals detained in India.

(2) That such individuals, as are in the custody of India and are charged with alleged acts of genocide, should not be transferred to 'Bangla Desh' for trial till such time as Pakistan's claim to exclusive jurisdiction and the lack of jurisdiction of any other Government or authority in this respect has been adjudged by the Court;"

2. Whereas the Government of India was notified by telegram the same day of the filing of the Application and request for indication of interim measures of protection, and of the precise measures requested, and copies of the Application and the request were at the same time transmitted to it by air mail;

3. Whereas, pursuant to Article 40, paragraph 3, of the Statute and Article 37, paragraph 2, of the Rules of Court, copies of the Application were transmitted to Members of the United Nations through the Secretary-General and to other States entitled to appear before the Court;

4. Whereas, pursuant to Article 31, paragraph 2, of the Statute, the Government of Pakistan chose Sir Muhammad Zafrulla Khan to sit as judge ad hoc, and he sat in the case until 2 July 1973;

5. Whereas the Governments of Pakistan and India were informed by communications of 14 May 1973 that the Court would in due course hold public hearings to afford the parties the opportunity of presenting their observations on the request by Pakistan for the indication of interim measures of protection, and the opening of such hearings was subsequently fixed for 29 May 1973;

6. Whereas on 28 May 1973, as a result of communications received from the Governments of Pakistan and India, the Court decided to postpone the opening of the public hearings, and subsequently fixed 4 June 1973 as the date for such opening;

7. Whereas by a letter dated 23 May 1973 from the Ambassador of India to the Netherlands, received in the Registry on 24 May 1973, the Government of India declined to consent to the jurisdiction of the Court in the case, and claimed that without such consent the Court could not properly be seised of the case and could not proceed with it, and that there was no legal basis whatever for the jurisdiction of the Court in the case; and whereas in two statements transmitted to the Court with letters [p 330] from the Ambassador of India to the Netherlands dated 28 May and 4 June 1973 the Government of India presented a further reasoned statement that the Court had no jurisdiction in the case;

8. Whereas at the opening of the public hearings, which were held on 4, 5 and 26 June 1973, there were present in Court the Agent, Deputy-Agent and counsel of the Government of Pakistan;

9. Having heard the observations on the request for interim measures on behalf of the Government of Pakistan, and the replies on behalf of that Government to questions put by Members of the Court, submitted by His Excellency Mr. J. G. Kharas and Mr. Yahya Bakhtiar, Attorney-General of Pakistan;

10. Whereas in a letter of 11 July 1973 the Agent for Pakistan informed the Court of its expectation that negotiations will take place between Pakistan and India in the near future in which the issues which are the subject of its Application will be under discussion; and whereas in that letter the Government of Pakistan asks the Court to postpone further consideration of its request for interim measures in order to facilitate those negotiations;

11. Whereas in the same letter the Government of Pakistan further asks the Court to fix time-limits for the filing of written pleadings in the case;

12. Considering that it is Pakistan which requested the Court to indicate interim measures of protection on the basis that the circumstances of the case so required;

13. Whereas it is of the essence of a request for interim measures of protection that it asks for a decision by the Court as a matter of urgency, as it is expressly recognized by the Court in Article 66, paragraph 2, of the Rules of Court;

14. Whereas the fact that the Government of Pakistan now asks the Court to postpone further consideration of its request for the indication of interim measures signifies that the Court no longer has before it a request for interim measures which is to be treated as a matter of urgency; and whereas the Court is not therefore called upon to pronounce upon the said request;

15. Having regard to Article 66, paragraph 1, of the Rules of Court which provides that a request for the indication of interim measures of protection may be made at any time during the proceedings in the case in connection with which it is made;

16. Whereas in the circumstances of the present case the Court must first of all satisfy itself that it has jurisdiction to entertain the dispute;

Accordingly,

The Court,

by 8 votes to 4,

Decides that the written proceedings shall first be addressed to the question of the jurisdiction of the Court to entertain the dispute; [p 331]

Fixes as follows the time-limits for the written proceedings:

1 October 1973 for the Memorial of the Government of Pakistan.

15 December 1973 for the Counter-Memorial of the Government of India:

And reserves the subsequent procedure for further decision.

Done in English and in French, the English text being authoritative, at the Peace Palace, The Hague, this thirteenth day of July one thousand nine hundred and seventy-three, in four copies one of which will be placed in the archives of the Court, and the others. -.respectively to the Government of Pakistan, to the Government of India, and to the Secretary-General of the United Nations for transmission to the Security Council.

(Signed) Manfred Lachs,
President.

(Signed) S. Aquarone,
Registrar.

Judge Nagendra Singh appends a separate opinion to the Order of the Court.

Judge Petren appends a dissenting opinion to the Order of the Court.

(Initialled) M.I.,

(Initialled) S.A.


[p332]

Separate opinion of judge Nagendra Singh

While voting with the majority for what in legal effect now constitutes a clear withdrawal by the Applicant of its request for interim measures sought under Article 41 of the Statute of the Court, I have all along felt that in this case, irrespective of the competence of the Court in relation to the Applicant (Pakistan) and the absent non-applicant (India), which aspect will be examined in the second phase, it is patently obvious that the Court has no jurisdiction in relation to Bangla-Desh.

It is well known that Bangla-Desh is a sovereign State recognized by over 90 countries and now a regular member of the several specialized agencies of the United Nations and a distinct member of the international community. The fact remains, however, that without its consent there can be no exercise by the Court of jurisdiction in relation to its rights.

Moreover, from the viewpoint of the Court's adjudication, whether ad interim or final, what is vital is the positive pleading of Pakistan that Bangla-Desh and not India is contesting Pakistan's claim to exclusive jurisdiction for the holding of trials of 195 prisoners of war. This is manifest from paragraph 4 of Pakistan's Application, wherein it is stated that "The Government of Pakistan cannot agree to the trial of its prisoners of war by 'Bangla Desh' since Pakistan has exclusive jurisdiction over its nationals in respect of any acts of genocide allegedly committed in Pakistani territory".

It is indeed an elementary and basic principle of judicial propriety which governs the exercise of the judicial function, particularly in inter-State disputes, that no court of law can adjudicate on the rights and responsibilities of a third State (a) without giving that State a hearing, and (b) without obtaining its clear consent.

Furthermore, it appears to me that the Court has not been in proper seisin of the case from the very beginning and lacks all prima facie competence. If that be so, it is regrettable to have instituted a further phase by fixing time-limits for the Parties to plead on the question of jurisdic-tion.

However, it is true that the Applicant, by its letter of 11 July 1973, requested the Court to agree to postpone the entire case as the Parties were about to enter into negotiations for an amicable settlement of the dispute. As already stated, a request for postponement in relation to interim measures can only have the legal effect of withdrawal, which must take priority over all other considerations, particularly when India had [p 333] declined to be present and has, therefore, no say in regard to the request of Pakistan. It is in these circumstances that I voted with the majority for the decision of the Court. While doing so, however, I do hold that the Court, when agreeing to postponement of further consideration of the request for interim measures and finding that it is not therefore called upon to pronounce thereon, should have declined to deal any further with the case, as judicial propriety does not permit the Court to advance any further therein.

(Signed) Nagendra Singh.

[p 334]

Dissenting opinion of judge Petren

[Translation]

Having voted against the Order, I append this dissenting opinion.

In my view, the first question to which the Court should have attended was that of its own jurisdiction on the merits of the case, a question to which the Order does not advert until the last paragraph of the recitals.

In all cases, the Court obviously has a duty to satisfy itself as soon as possible that it has jurisdiction. The fact that the Indian Government denies the jurisdiction of the Court in the present case can only render the examination of that question even more urgent. There is no indication that the possibility of that Government's recognizing the Court's jurisdiction in the present case has been envisaged in the negotiations which, as mentioned in the letter dated 11 July 1973 from the Agent for Pakistan, are being carried on between the Governments of India and Pakistan. The fact that the Government of Pakistan has requested the indication of provisional measures does nothing to dispense the Court from the duty of settling the question of its jurisdiction even in the initial stage of the proceedings, if that should prove to be possible. In the absence of the Government of India, it is, in accordance with Article 53 of the Statute, incumbent upon the Court also to take into consideration such elements as militate in favour of the position adopted by that Government.

The arguments of the Government of Pakistan with regard to the jurisdiction of the Court were set forth at public hearings on 4, 5 and 26 June 1973. The reasons why the Government of India denies that jurisdiction have been presented in statements transmitted to the Court by letters from the Ambassador of India dated 23 and 28 May and 4 June 1973. The question of jurisdiction, as presented to the Court by the two Governments, does not appear to be enmeshed with the merits of the case. There is therefore reason to ask whether the Court, having taken cognizance of the arguments put forward by the two Governments, could not and should not have decided the question of its jurisdiction at the present early stage of the proceedings, with the aid of its own lights, instead of deferring consideration of this preliminary question to a new phase of the case by first inviting the two Governments to engage in written proceedings extending until 15 December 1973 and destined to be followed by further oral proceedings.

For the purpose of its decision in that connection, the Court, in my view, had to take the following elements into consideration.

The arguments of the two Governments on the subject of the Court's jurisdiction concerned inter alia the construction of the Convention of [p 335] 9 December 1948 on the Prevention and Punishment of the Crime of Genocide, and in particular its jurisdictional clauses, as also the question whether Pakistan is a party to the General Act of 26 September 1928 for the Pacific Settlement of International Disputes and, if so, whether the jurisdiction of the Court could be founded upon that instrument. I am of the opinion that Article 63 of the Statute of the Court required the questions thus raised to be notified without delay to the States parties to the two international instruments in question. Those notifications, however, were not made, and the majority even opposed considering the question of notification in respect of the Genocide Convention before the Court had pronounced on the request of the Government of Pakistan for the indication of interim measures of protection. Given the mandatory character of the notifications provided for in Article 63 of the Statute, I do not believe that the Court may settle the question of its jurisdiction without having complied with the provisions of that Article of the Statute. In that, therefore, there exists a first obstacle to the Court's pronouncing upon its jurisdiction at the present stage of the proceedings.

Nor is it possible to pass over in silence the fact that the judge ad hoc chosen by the Government of Pakistan has ceased to sit in the case since 2 July 1973. On what questions the Court may deliberate in the absence of the judge ad hoc appointed by a Government to participate in the decision of a case is a question which, in my view, deserves the closest attention. In particular, I have grave doubts as to the possibility of the Court's settling the question of its jurisdiction in the absence of a judge ad hoc. In the present instance, it is true that this absence could not have prevented the Court from deferring consideration of the case in conformity with the request of the Government of Pakistan, but to my mind it would have constituted a further reason for considering that now was not the time to settle the question of jurisdiction.

That having been said, I am by no means convinced that it was necessary, for the information of the Court, to open the door to further pleadings on its jurisdiction as wide as the present Order has done. Furthermore, the time-limits fixed are such, in my view, as to justify some apprehension that the present case may exemplify the drawbacks that arise when different manners of settling an international dispute are confused. The attitudes of the two Governments in question give me the impression that it is much rather the intervention of the mediator than that of the international judge which would be more likely to help them resolve the series of disagreements between them. The judicial role of the Court does not, I feel, connote any consideration of problems from that angle.

Even so, as it is in my view necessary to allow States parties to the Genocide Convention and the General Act of 1928—provided they are notified of the existence of the above-mentioned questions—sufficient time to enable them to request to intervene in the proceedings, I was in a position to assent to the operative paragraph of the Order, the terms of [p 336] which concern solely the organization of the further proceedings on the question of the Court's jurisdiction.

If I have nevertheless voted against the Order, it is essentially on account of paragraphs 13 and 14. According to the letter of its Agent dated 11 July 1973, the Government of Pakistan has found it appropriate to ask the Court to postpone further consideration of its request for the indication of interim measures in order to facilitate negotiations; but there was nothing in that letter to indicate that the Government of Pakistan wished to withdraw its request for the indication of interim measures. Now in paragraph 13 of the Order, the Court expresses the view that it is of the essence of a request for interim measures of protection that it asks for a decision by the Court as a matter of urgency. It is consequently stated in paragraph 14 that, by the effect of the desire expressed by the Government of Pakistan that the further consideration of the request be deferred, the Court no longer has such a request before it. As the Government of Pakistan has not withdrawn its request for the indication of interim measures of protection, I am unable to assent to that conclusion.

(Signed) Sture Petren.

 
     

 

 

 

 

African Commission on Human and Peoples' Rights | Central American Court of Justice | Committee Against Torture
Committee on the Elimination of Discrimination against Women | Committee on the Elimination of Racial Discrimination
Economic Court of the Commonwealth of Independent States | International Commissions of Inquiry | International Court of Justice
International Prize Court | Permanent Court of International Justice

 

home | terms & conditions | copyright | about

 

Copyright © 1999-2011 WorldCourts. All rights reserved.