ICJ
Print Friendly, PDF & Email

On the Indian government’s application to the ICJ to ask for the release of the Indian spy, Kulbashan Yadhav, amongst other things, Sartaj Aziz stated today, “We are analysing the Indian petition and the International Court of Justice’s (ICJ) authority [on the case],” While talking to media, Advisor on Foreign Affairs, Sartaj Aziz said that Pakistan would respond to the letter on Thursday.

Khawaja Asif, Pakistan’s defense minister, tweeted that the “Indian letter to ICJ attempt to divert attention from state-sponsored terrorism in Pakistan.”

Indian letter to ICJ attempt to divert attention frm state sponsored terrorism in Pak.Kulbushan convicted of offences against Nat security

On May 8, India submitted an application to the International Court of Justice against Pakistan’s arrest of the Indian spy, Kulbhushan Jadhav. The ICJ President, Judge Ronny Abraham, who wrote to the Government of Pakistan on May 9, to not undertake any action on the Jadhav case until the ICJ has had a chance to examine India’s petition against Pakistan.

India petitioned the ICJ to move against the decision of the Pakistani Field General Court Martial which sentenced Jadhav to death on charges of espionage.

“In my capacity as president of the court, and exercising powers conferred upon me under Article 74, paragraph 4, of the rules of the court, I call upon Your Excellency’s Government, pending the court’s decision on [India’s] request for the indication of provisional measures, to act in such a way as will enable any order the court may make on this request to have its appropriate effects.”

Read more: Kulbhushan’s death sentence: a “Circuit Breaker” or “Grand Bargain”?

In his letter to the Pakistani government, Judge Abraham said he was acting under his Article 74 (4) powers. Under Article 74, section 4 of the rules of the court states: “Pending the meeting of the court, the president may call upon the parties to act in such a way as will enable any order the court may make on the request for provisional measures to have its appropriate effects”.

India petitioned the ICJ to move against the decision of the Pakistani Field General Court Martial which sentenced Jadhav to death on charges of espionage. Ironically, India in the past has contested ICJ authority to decide on the dispute between the two countries. It used this argument in 1999, when Pakistan took it to court, after Pakistani military plane had been shot down in the Indian air space over the Rann of Kutch.

This was its first approach of the ICJ in the last 46 years since 1971. On the last occasion, it was to challenge the right of the International Civil Aviation Organisation that had declared India’s move illegal over banning Pakistani flights in its airspace opportunistically during the East Pakistan civil war. India had claimed at the time it was doing this because of a terrorist hijacking of its airplane. India lost that case at the ICJ.

The Indian argument being made at the ICJ is based on what it claims is Pakistan’s violations of the 1963 Vienna Convention on Consular Relations, which allows foreign country prisoners to be visited by their national diplomatic representatives.

In its application, India claims that Jadhav was abducted from Iran where he was supposedly on business and “then shown to have been arrested in Baluchistan” on March 3. India has accepted the Jadhav was a serving officer in the Indian Navy.

The ICJ press release states:

“The Applicant contends that it was not informed of Mr. Jadhav’s detention until long after his arrest and that Pakistan failed to inform the accused of his rights. It further alleges that, in violation of the Vienna Convention, the authorities of Pakistan are denying India its right of consular access to Mr. Jadhav, despite its repeated requests.”

Read more: Pakistan must give one message on India’s self-confessed “state actor”

India told the Court that it learnt about the death sentence of Jadhav from an ISPR press release issued on April 10.

India also alleges that Jadhav’s rights had not been respected and the military court proceedings which led to his sentencing were not in alignment with legal norms.

The Indian argument being made at the ICJ is based on what it claims is Pakistan’s violations of the 1963 Vienna Convention on Consular Relations, which allows foreign country prisoners to be visited by their national diplomatic representatives.

By contrast, Pakistan has claimed that the 2008 bilateral agreement on Consular Access signed between the two countries allowed for both sides to make an exception to the granting of access when issues of “national security” were involved.

On April 27, Nafees Zakaria, foreign office spokesperson clarified “We have made it clear time and again that Pakistan and India have signed an agreement on consular access in 2008, and according to clause VI of that agreement, decision to grant consular access in cases where detentions and arrests relate to political or security matters, the request of consular access will be decided on merits of the case.”

India has stated that no evidence has been provided against Jadhav, despite the fact the Indian officer himself had given detailed accounts of his activity against Pakistan and had also recorded a confessional video which had been released by the ISPR.

Both India (1977) and Pakistan (1976) are parties to the Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes, 1963.

Jadhav has provided an exhaustive account of Indian sponsored activities which aim to destabilize regions in Pakistan and provide support for terrorist organizations operating on Pakistani soil. Before the counter-intelligence operation which resulted in his arrest, Jadhav had reportedly been tasked by Indian intelligence to target the ongoing CPEC project. Gen. Asim Bajwa, then DG ISPR, revealed that Jadhav had been handled by the RAW chief, the Indian national security advisor, and RAW joint secretary.

Read more: Spies and terrorists seeping into Pakistan: India’s dirty war

India seeks four reliefs from the ICJ:

  1.  [a] relief by way of immediate suspension of the sentence of death awarded to the accused[;]
  2. [a] relief by way of restitution in interregnum by declaring that the sentence of the military court arrived at, in brazen defiance of the Vienna Convention rights under Article 36, particularly Article 36[,] paragraph 1 (b), and in defiance of elementary human rights of an accused which are also to be given effect as mandated under Article14 of the 1966 International Covenant on Civil and Political Rights, is violative of international law and the provisions of the Vienna Convention[;] and
  1. [r]estraining Pakistan from giving effect to the sentence awarded by the military court, and directing it to take steps to annul the decision of the military court as may be available to it under the law in Pakistan[;]
  2. [i]f Pakistan is unable to annul the decision, then this Court to declare the decision illegal being violative of international law and treaty rights and restrain Pakistan from acting in violation of the Vienna Convention and international law by giving effect to the sentence or the conviction in any manner, and directing it to release the convicted Indian National forthwith.”

Both India (1977) and Pakistan (1976) are parties to the Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes, 1963. The protocol says that any dispute arising out of the interpretation or application of the VCCR shall lie within the compulsory jurisdiction of the ICJ, and may accordingly be brought before the court by any party to a dispute.

However, both countries have limited the circumstances under which they are willing to subject themselves to the compulsory jurisdiction of the ICJ in ‘contentious cases’, the 2008 bilateral agreement being one in the case of Pakistan.

In the case of India, the 1974 declaration outlined matters over which it would not accept ICJ jurisdiction. They included the following:

  • Disputes with government of any state which is or was part of the Commonwealth;
  • Disputes related or connected to facts, hostilities and armed conflicts.

This deviation in the case of Jadhav theoretically opens up all bilateral issues between the two countries to ICJ mediation and would ultimately weaken India’s stated position vis-à-vis Pakistan.

Comments & Discussion