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Oral Arguments ORAL ARGUMENTS MINUTES OF THE PUBLIC SI'ITINGS held or the Peace Palace, The Hague, from 4 ro 26 Jurre 1973 FlRST PUBLIC SITTING (4 VI 73, 3 p.m.) Present: Presidenr LACHS;Vice-Presideitf AMMOUN;J~~dges FORSTER, GROS, BENGZON,PETRÉN, ONYEAMA, IGNACIO-PINTO, DE CASTRO,MOROZOV, JIMÉNEZ DE ARÉCHAGA,SIR Humphrey WALDOCK,NAGEKORA SINGE, RUDA; Ji~dge ad hoc Sir Muhammad ZAFRULLAKHAN; Regisrrar AOUARONE. Also preseitt: Far tlre Covernnlenr of Pokisran: H.E. Mr. J. G. Kharas, Ambassadorof Pakistan to IheNetherlands, as Agent; Mr. S. T. Joshua, Secretary of Embassy, as Deputy-Agent; Mr. Yahya Bakhtiar, Attorney-General of Pakistan. as Clrief Counsel; Mr. Zahid Said, Deputy Legal Adviser, Ministry of Foreign Affairs, Govern- ment of Pakistan, as Cowtsel. PAKISTANI PRISONERS OF WAR OPENING OF THE ORAL PROCEEDLNGS The PRESIDENT: The Court meets today to consider the request for the indication of interim measures of protection, under Article 41 of the Statute of the Court and Article 66 of the 1972 Rules of Court, filed by the Government of Pakistan on II May 1973, in the case concerning the Trial of Pakistani Prisoners of War, brought by Pakistan against India. The proceedings in this case were begun by an Application by the Govern- ment of Pakistan, filed in the Registry of the Court on 11 May 1973'. The Application founds the jurisdiction of the Court on Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the United Nations General Assembly on 9 December 1948, generally known as "the~ ~ Genocide~ Convention". and on Article 36. paraaraph 1, of the Statute of the Coun. ~he~~~licani ask5 the Court to adjhg 3nd declare that Prikisian hîs an exclusi\,e righi io e~ercisejurirdiciion o\,er the Pakisiani naiiondls, now in Indiîn custodv.. and accused of commiiiina acts of genocide in I'akistani rerritsry. by vinue of the Genocide ~on\,ention;that the illegations agîinst the aforesaid prisoners of war arc related ta acts of genocide; that there cm be no ground in international lajv justifying the trdnsfer of custody of the prironers of war Io tlanglü Desh for tri31 in face of I'akistan'i exclusi\e right to ehercibe iuriidi:iion oi,er 11s nationals accu,eJ of commiiting ulrences in Pirkiit3ni territory, and that India would act illegally in transferring such persons to Bangla Desh for trial, and that even if India could legally transfer Pakistani prisoners of war to Bangla Desh for trial, it would be divested of that freedom since in the atmosphere which, according to the Government of Pakistan, prevails in Bangla Desh, a "competent tribunal" within the meaning of Article VI of the Genocide Convention cannot be created in practice nor can it be expected to perform in accordance with accepted international standards of justice. On II May 1973, the day on which the Application was filed, Pakistan filed a request, under Article 41 of the Statute and Article 66 of the 1972 Rules of Court, for the indication of interim measures of protection2. 1 shall ask the Registrar to read from that request the details of the measures which the Government of Pakistan asks the Court to indicate. The REGISTRAR: "(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 retained 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 juris- diction and the lack of jurisdiction of any other govemment or authority in this respect has been adjudged by the Court." ' See pp. 3-7, supro, and p. 111, infra a See pp. 17-18, supra, and p. 111, infra OPENING OF THE ORAL PROCEEDINGS ON INnRlM MEASURES 23 The PRESIDENT: The Government of India was informed forthwith bv telegrarn of the filing of the Application and of the request for interim measurei of protection. and of the preciw rneasures requested. and a copy of the Applica- tion and of the request were sent toit hy air mail the same dayi. By communications of 22 May, confirmed on 25 May, the Parties were in- formed that the President proposed to convene the Court for a public Sitting on 29 May 1973 at 10 am. to hear the observations of the Parties on the request by Pakistan for the indication of interim measures of protection2. On 24 May 1973, a letter dated 23 May from the Ambassador of India at The Hague was received in the Registry of the Court3. In this letter it was observed that the A~dicationfounds the iurisdiction of the Court on Article~~ ~ IX~~ - of the Cienocide con-vention and on ~rt/clc36, pariigraph 1. of the Statute of the Court. and attention uas driiurn 10 the res~r\~ationattached hy India to its ratification of the Convention. to the effect that for the suhmfssion~ of~ ~ anv~~-~ dispute in terms of Article IX !O the jurisdiction of the court, the consent if al1 the parties to the dispute would be required in each case. The Government of India, the letter continued, presumed that the Application and request were communicated to them for their consideration whether consent should be given in terms of Article IX, but regretted that they could not give consent for Pakistan ta raise the alleged subject-matter of the claim before the Court. It was therefore stated that there was no legal basis whatsoever for the jurisdiction of the Court, and that Pakistan's Application and request were without legal effect. The Court will deal with this auestion in accordance~ ~ ~~ with the~~~ relevant~ .~. rules of the Statute and its KU~CSin dbe course The texi of this lettçr from ihe lndian Ambassador u,as commun,cirted io the Agent of I'akistiin. urhoaddreited ii letter4 to the Court in u,hich~ ~ it iviis claimrd~ that the consent of lndia 10 the jurisdiction of the Court was not necessary, that the reservation attached to the Indian ratification of the Genocide Con- vention was inadmissible and without leml- effect. and that Pakistan also~ relied~ on al1 othcr provision* establishing the Couri's jurisdiction, and in particular the Indian declararion or acceptanîc of the compulsory jurisdiciion of the Court under Ariicle 36. piirsgriiph 2, of the Staiute. and Article 17 of the Ccnerdl Act for the Pacific Settlement of Intern~tionalDisputes of 1928, read with Article 36, pariigraph 1, and Ariisle 37 of the Statute. A further letter was received on 28 Mav from the Indian Ambassador. enclosing 3 document cntiild '.Siatenient kf the Go\,ernment of India in support of ils letter dated 23 .May 1973 addressed ti) the Registriir of the Inter- national Ci~urtof Justise"5. In this document the arguments of lndia in sumort of its contention that the Court is without jurisdictionwere set out and devei&ed at greater length. On 28 May the Court decided. as a result of communications received from the ~overn&entsof Pakistan and India. to postpone the opening of the public hwrings; and on I June the Court fixed 4 June as the date for the opening of the hearings, and the Parties were immediately sa informede. Shortly before 1 p.m. on 4 June 1973, the Ambassador of India at The Hague handed to the Registrar a further letter, enclosing a document setting out the ' See p. 113, infra. See pp. 116 and 120, infra. See p. 117, infra. See pp, 118-120, infra. - 5 See p. 121, infra. See pp. 137 and 138, infra. 24 PAKlSTANl PRISONERS OF WAR position of the Government of India'. A copy of the letter and the document was sunolied. as ra~idlv..as possible. to the Aze.ent. of Pakistan. Sincc the Court in the pre\eni case include, upon the Rench no JUJWoi Pakisiani narion3liiy. ihc Ciobernment uf 1'3kist;in nt~titieJthe Court on I? hlay 1973 of irj cnoi:e of Sir Muhammad Z;ifrulla Khan io sit as judge u<//ti>r in the case puriuani rs .\riicle 31, pdragroph 2, ufihe SI~~UIC~.Nil objeciion I<I rhij na, m3Je by In.lia within the time-limir iixcd ihercfir pur,u;int IO Arii.lc 3 of the Rules of court. 1 shall therefore cal1 upon Sir Muhammad Zafmlla Khan to make the solemn declaration required by Article 20 of the Statute, and 1 invite the Court to rise. Sir Muhammad ZAFRULLA KHAN: I $olemnly dcclnre that I iiill pcrform niy dutics and excrcisc my powcrs as judge, honourably, Fdithfuliy, inipliriially and conscientiously. The PRESIDENT: 1 place on record the declaration made by Sir Muhammad Zafrulla Khan and declare him duly installed as judge adhoc in the present case. 1 regret that Judge Dillard is not with us today, being prevented hy illness from being on the Bench, and it is doubtful whether he will be able to take part in the case. 1 declare now the oral proceedings open and request the Agent of Pakistan to take the Roor and present his case for the indication of interim measures of protection. See p. 139, infra. 2 Sec p. 114, infra. STATEMENT BY MR. KHARAS STATEMENT BY MR. KHARAS AGENT FOR THE OOVERNMENT OF PAKISTAN Mr.. KHARAS:----~ Mr. President. Members of the Court. 1 deem it a -areat privilege and honour ta stand before this august tribunal, once more, in my caoacitv as Agent of the Government of the Islamic Republic of Pakistan.
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