Picture this. An anti-terrorist operation is carried out in Jammu and Kashmir. It is conducted by various Indian security forces and also has the involvement of Gorkha troops. Accusations of human rights violations are raised after the operation. And an international court takes it upon itself to investigate the matter, in spite of the operation in question being carried out by Indian forces on Indian soil.
This might just become reality if the communist-dominated Constituent Assembly of Nepal decides to accept the jurisdiction of the International Criminal Court, by ratifying the Rome Statute, its governing constitution and criminal code.
The Indian army’s Gorkha Regiments consist of soldiers also recruited from Nepal, who make up a fair chunk of Indian infantry and retain their Nepalese nationality. India recruits these Gorkhas under the Tripartite Agreement of November 1947 between India, Nepal and the United Kingdom.
But the continued service and deployment of these troops, might come under a cloud if Nepal decides to become a member of the International Criminal Court.
This court was set up at The Hague in 2002 to try war crimes, crimes against humanity and genocide. India has so far refused to accept the jurisdiction of the court on the grounds that it is discriminatory in allowing the Security Council and the Permanent Five privileged powers to refer crimes to the court for prosecution, especially in light of the US refusal to accept the jurisdiction of the court. India also has problems with the definition of a war crime not including the use of Weapons of Mass Destruction under the Rome statute.
But in July 2006, the Nepalese Parliament ordered the Government to ratify the Rome Statute of the International Criminal Court. According to Articles 12 and 13 of the Statute, the Court can exercise jurisdiction over any crime committed in the territory of a state party to the statute or any crime committed by a national of a state party to the statute. So, would the actions of Nepalese Gorkhas in the Indian army come under the jurisdiction of the Court if the Nepalese Government ratifies the Statute?
“Yes they would come under the court,” thinks Mrinal Satish, Assistant Professor at the National Judicial Academy in Bhopal and an expert on International Criminal Law, adding that even if Nepalese Gorkhas were serving in the Indian army, according to the Rome Statute they would still technically come under the jurisdiction of the court.
But Lt. Gen. Vinayak Patankar (retd) of the Observer Research Foundation disagrees. He says the Indian army has a special relationship with the Gorkhas of Nepal and Nepalese Gorkhas serve and are treated no differently from Indian soldiers in the Indian Army, adding, “Gorkha troops serve under the Indian flag on foreign missions and take an oath to the Indian Constitution.” In his opinion, for all practical purposes these troops are treated like Indian citizens and the court would recognise this relationship. In any case, he says, if the scenario mentioned above were to take place, the Indian judicial system would deal with it.
While this may be true as the International Criminal Court chooses to exercise jurisdiction only when a state is unwilling, unable or insincere in its attempts to pursue the ends of justice, Mrinal Satish warns. “even though the court would probably find it difficult to actually exercise jurisdiction over them as part of the Indian army, they would still fall under the jurisdiction of the court.”
Further, Jelena Vukasinovic of the International Criminal Court reiterates in an emailed statement, “the Court may exercise jurisdiction if the accused is a national of a State Party.”
This would place the Indian Army in a tight spot. The army would find it difficult to allow a large section of its front-line forces to operate subject to the jurisdiction of the International Criminal Court while India refrains from acceding to the Rome Statue.
The army brasshats might run shy of deploying the Gorkha Regiments. They would find it difficult to tolerate the existence of an extra-sovereign jurisdiction over the Indian army.
This might mean the unavailability of a huge chunk of some of India’s finest infantrymen. The Gorkhas have fought in every major Indian army campaign winning numerous battle and theatre honours and even India’s most revered soldier, Field Marshal Sam Manekshaw is an officer of the 8 Gorkha Rifles.
The regiments have won many gallantry awards like the Param Vir Chakra and the Maha Vir Chakra. Major Dhan Singh Thapa of the 1/8 Gorkha Rifles won the Param Vir Chakra for his heroic actions during the 1962 Indo-China war, when he was taken prisoner of war by the Chinese. Captain Gurbachan Singh Salaria of the Ist Gorkha Rifles (Malaun Regiment) also the Param Vir Chakra posthumously for gallantry in the Congo in 1961. The 1st battalion of the 11 Gorkha Rifles was involved in the Kargil War where acting Captain Manoj Kumar Pandey won the Param Vir Chakra posthumously for his bravery.
India could conceivably have tried to figure out a way to grant citizenship to Nepalese serving in the Indian army but the ’47 treaty specifically makes the service of the Nepalese Gorkhas conditional upon their retaining their Nepalese nationality. This would require a renegotiation of the treaty, which might prove troublesome since the now-dominant communists in Nepal have been demanding, on their part, a complete abrogation and renegotiation of the Indo-Nepal Friendship Treaty of 1952 which has historically given India considerable influence over the affairs of Nepal. As it is, the Nepalese Communst leader Prachanda has called for an end to the service of Nepalese Gorkhas in the Indian army.
Brigadier Gurmeet Kanwal (retd), Director of the Centre for Land Warfare Studies and author of Indian Army: Vision 2020 is careful in his opinion, saying, “In case the jurisdiction of the International Criminal Court contravenes the provisions of the Army Act, Air Force Act and Navy Act and the applicability of the Criminal Procedure Code,
then the government of India will have to renegotiate the terms and conditions of service of Nepalese citizens serving in the armed forces with the government of Nepal.”
India could consider culling out all Nepalese from the Indian Army. Not only would this require fresh recruitment in large numbers it may well be prohibitively expensive and time consuming and probably impracticable. Also, it may further spoil relations with Nepal because Indian Army salaries and pensions provide a livelihood to many Nepalese families. The Indian Army also provides all kinds of medical care and other services to the Gorkhas and their families.
Rome Statue of the International Criminal Court
Preconditions to the exercise of jurisdiction
1. A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes
referred to in article 5.
2. In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3:
(a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft;
(b) The State of which the person accused of the crime is a national.
3. If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance
with Part 9.
Exercise of jurisdiction
The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of
this Statute if:
(a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14;
(b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations;
(c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.