Hassan Aslam Shad |
On 17th July, the International Court of Justice or ICJ will be announcing its judgment in Kulbhushan Jadhav case – a hotly contested courtroom battle between India and Pakistan. Not only does this case have international legal dimensions due to the involvement of two sovereign states, but unlike other cases contested before the ICJ, at stake, in this case, are two diametrically opposed competing narratives and strategies of statecraft. Whom the lawfare sides with, will not only shape the optics of the winner’s state narrative but also bolster its claim to have been the victim of the others’ wanton aggression.
Only if legal battles were that simple at the ICJ! In this case, complicating matters is which version of the facts to believe; determining what is international law on consular access to a state (India) whose citizen (Kulbhushan Jadhav) is suspected to have indulged in espionage; and what amounts to a fair domestic trial in terms of international law.
ICJ will announce its decision on Kulbhashan Jadhav case on 17th; my well researched piece will help you understand why this is so important for Delhi? Must read for students of Intl Relations, Politics, media & CSS aspirants https://t.co/sKe6k4fJqa via @@GVS_News
— Moeed Pirzada (@MoeedNj) July 15, 2019
Preconceived notions and legal doctrinal preferences will also come into play when one considers that judges representing 16 countries (and one each from India and Pakistan) and different schools of thought will be putting their heads together in deciding the case. The faint-hearted will fear that politics will inevitably trump law. The savvy and the prepared, on the other hand, will separate the legal grain from the political chaff and craft their future lawfare strategies against the adversary. One can, therefore, expect the 17th July judgment to resonate beyond the ICJ corridors and shape the political discourse of India and Pakistan towards one another for times to come.
One country’s spy, another’s terrorist?
India has throughout claimed Kulbhushan Jadhav’s innocence. Jadhav, as per India, was an Indian national, an innocent businessman operating out of Iran, who was abducted by Pakistan from Iran, made to appear as a RAW operative, coerced to confess his crimes, made to stand trial, and sentenced to death in sham military court proceedings. India, during this period, repeatedly sought consular access to Jadhav but this was denied by Pakistan. India claimed this was a violation of the Vienna Convention on Consular Relations1963 (“Vienna Convention”), a treaty accepted by some 177 countries. Belatedly (and some 11 months after India first came to know about Jadhav’s arrest), India claimed that he was a serving Commander in the Indian Navy.
Pakistan has proved that Kalbhushan Yadav is an Indian citizen : ICJ Judge Jonny Abraham. pic.twitter.com/jiOJi7YVym
— Javeria Siddique (@javerias) May 18, 2017
Pakistan claimed that Jadhav was anything but innocent. He was a vital plank in RAW’s terrorism in Pakistan – a serving officer of the Indian Navy and a RAW agent operating under the cover name “Hussain Mubarak Patel” who was arrested while crossing over into Balochistan from Iran. He was in possession of two passports, one, an authentic Indian passport in his name, Kulbhushan Jadhav, and the other in his cover name.
Pakistan argued before the ICJ that India failed to establish how the Indian passport in the cover name got renewed and how Jadhav was able to travel in and out of India 17 times on that passport. Pakistan made India’s requests for consular access contingent on India assisting Pakistan in investigating the alleged handlers of Jadhav (whose names, Pakistan claimed, had been disclosed by Jadhav to Pakistani authorities).
Jadhav’s Military Trial and India’s Application for Provisional Measures
Jadhav was tried by the Pakistan Field General Court Martial (“FGCM”) during September 2016 and awarded the death sentence in early 2017. In June 2017, the Military Appellate Court refused Jadhav’s appeal thus confirming his death sentence.
On 8th May 2017, India sought interim relief from ICJ for stay of Kulbhushan Jadhav’s execution. The ICJ granted provisional measures in line with its ordinary approach to requests for interim relief in death penalty cases. The ICJ ordered that Pakistan “must take all measures at its disposal to prevent the execution of an Indian national, Jadhav, pending final judgment of the Court”. India apparently won the first round, the easy one.
India is at a losing end by taking the Kalbhushan Jadhav case to ICJ. I hope, Pakistan will fight its case well. #HangTerroristKalbhushan
— Lt Gen Ghulam Mustafa – (Retd) (@_GhulamMustafa_) May 15, 2017
Thereafter, starting from September 2017, India and Pakistan moved on to file their written memorials, claims and counterclaims at the ICJ. In February this year, a weeklong hearing was devoted to the parties’ oral arguments, during which counsel of India and Pakistan vehemently argued their case.
India claimed that Pakistan’s denial of consular access was a violation of Article 36 of the Vienna Convention. India also claimed that Jadhav’s trial and conviction by the military court of Pakistan fell below the required due process standards recognized globally. As a consequence, India sought annulment of Jadhav’s conviction. Belatedly, India introduced an alternative prayer at the ICJ (in case the principal relief was not granted by the ICJ) to have Jadhav’s trial ordered under Pakistani law before civilian courts with due process and full consular access to India.
India’s main prayer at the ICJ was to seek annulment of Jadhav’s conviction by Pakistan’s FGCM. Pakistan’s counsel called this India’s “all or nothing strategy”
Pakistan sought rejection of the Indian claim on the ground that India was abusing process and had come to the ICJ with “unclean hands” as it had engaged in terrorist acts in Pakistan through Jadhav. Pakistan claimed India had failed to prove Jadhav’s nationality – a prerequisite to engaging the Vienna Convention. Pakistan further claimed that although international law provides an exception to consular access in cases of espionage, even if Vienna Convention was engaged, the acts indulged in by Jadhav on their own were a violation of the Vienna Convention.
Khawar Qureshi, Pakistan's lawyer decisively proved in ICJ that Vienna Convention on Consular Relations is not attracted to cases of espionage; Kulbhshan Jadhav's case has to be dealt under "Customary National Law" & Bilateral Treaties & even if VCCR applies then Review exists
— Moeed Pirzada (@MoeedNj) February 19, 2019
Pakistan also asked the ICJ to consider the engagement of Vienna Convention in light of a 2008 Bilateral Treaty between India and Pakistan which identifies the basis on which consular access would be considered by the two countries in the case of an individual suspected of espionage. Pakistan, however, prayed to the ICJ that even if it was established that India had a right to consular access, the appropriate remedy would be review and reconsideration before the Pakistan High Court in accordance with Article 199 of the Constitution of Pakistan.
The lawfare of two narratives
Barbs flew during verbal arguments at the ICJ. The written submissions of the parties, too, were verbose and filled with invectives and parables about nefarious designs and motives of the adversary. Each party, through its legal counsel, weaponized lawfare to the fullest to slay the legal arguments of the other party before the 16 judges of the ICJ.
India’s lawfare focused on portraying Pakistan as a repeat offender and violator of international law. Building on the narrative that India has always been a target of Pakistan’s terrorism, India played the victim card. India portrayed its requests to Pakistan for consular access to showcase its clean hands and its genuine desire to go by the international rulebook.
Pakistan was made to appear as the violator and Jadhav a “kidnapped Indian” who was subjected to trial and sentenced to death through a military trial which did not meet due process standards.
Pakistan’s lawfare focused on exposing chinks in India’s lawfare armor. From the outset, Pakistan drew attention of the ICJ to the fact that India had approached the ICJ for political theatre and grandstanding. India‘s choices were limited, Pakistan argued, as it was left red-faced and not knowing what to do after one of its RAW operatives, a serving Commander in the Indian Navy, was caught by Pakistan. India’s request for consular access was thus an attempt to reinforce the victim narrative and to maintain the façade India had built to hide its own state-sponsored terrorist activities in Pakistan.
FO officials say case against #Kalbhushan ironclad, ICJ will be convinced in substantive next phase.
— Syed Talat Hussain (@TalatHussain12) May 20, 2017
Pakistan also argued that India’s request for consular access would have merited consideration, had India responded to Pakistan’s requests to investigate Jadhav’s handlers, established his nationality, and explained the matter of his two passports. On this basis, Pakistan called it India’s “kidnap fiction”.
Issue one: Consular Access
The ICJ will be faced with one of the most difficult questions in international law: whether consular access is to be granted as a matter of international legal obligation by the receiving State (Pakistan) to consular officers of the sending State (India) to visit its national (Jadhav) who is reasonably suspected of having indulged in espionage.
The text of Article 36 of the Vienna Convention (or the Vienna Convention as a whole) does not refer to espionage or the circumstances in which the receiving State can deny consular access. Pakistan’s argument that in the absence of an espionage exception in Article 36 of the Vienna Convention, the ICJ should look at customary international law or State practice (a position that supports Pakistan because there was no customary international law consensus on an espionage exception at the time of adoption of the Vienna Convention in 1963) can go two ways.
India was dramatically limited in countering these arguments because the ICJ is not the UN or the FATF or some politically charged arena where it can get away with political support and corner Pakistan
The ICJ may accept India’s argument for consular access on the basis that Article 36 of the Vienna Convention cannot be “whittled down by State practice”. In other words, the ICJ may rule that customary international law or State practice cannot prevail over the plain text and meaning of Article 36. If the ICJ adopts this line of reasoning, we can expect a detailed juristic exegesis by ICJ of the customary international law position both at the time of adoption of Vienna Convention and in the present day.
We should also expect detailed reasoning by ICJ as to why Pakistan’s argument that Article 36 of the Vienna Convention shouldn’t be viewed as a standalone provision but part of a “whole” (the other part being the 2008 Bilateral Treaty between India and Pakistan which provides for an espionage exception to consular access) is legally untenable. Going down this line of reasoning wouldn’t be without the ICJ stepping on a legal minefield or two and in the process obliterating the world’s understanding of international law on espionage.
The other equally likely outcome is for the ICJ to deny consular access claimed by India. In that case, ICJ would be accepting Pakistan’s core argument that the drafters of the Vienna Convention deliberately chose to stay silent on espionage and maintain a “studied ambiguity” (to use Pakistan’s counsel Khawer Qureshi’s words) instead of touching a sensitive subject which would have invited disagreement and possibly sabotaged the conclusion of the Vienna Convention.
It will be interesting to see which way the ICJ goes with the consular access argument. Given that the ICJ has been called by one of its judges as “the guardian of legality for the international community as a whole, both within and without the United Nations”, one can expect the ICJ to fully justify its decision on this count through cogent and detailed legal reasoning.
Issue two: Annulment of the Military Court Decision
India’s main prayer at the ICJ was to seek annulment of Jadhav’s conviction by Pakistan’s FGCM. Pakistan’s counsel called this India’s “all or nothing strategy”. Pakistan’s position before the ICJ has consistently been that the due process standards adhered to by the military courts of Pakistan are as robust as that of other countries. Pakistan strongly rebutted Indian claims about the dysfunctional nature of Pakistan’s court system. In fact, going a step further, Pakistan’s counsel adduced testimony of renowned military experts who issued a report on Pakistan’s military courts noting amongst other things the fact that they are: “soundly based in statute which provides the substantive legal basis for their jurisdiction…”
Read more: Pakistan in midst of aggressive FATF lawfare
Moreover, accepting India’s main prayer will go against the ICJ’s own previous jurisprudence. This was brought to the attention of the ICJ by Pakistan’s counsel. Interestingly, at a later stage in the proceedings, India shifted gears in its strategy and took a step back. It introduced an alternative prayer (if the ICJ did not accept its main prayer) i.e. Jadhav’s trial may be ordered under Pakistani law before civilian courts with due process and full consular access to India in line with the tenets of international human rights treaties. This was clearly an attempt by India to ringfence against the likely risk that the ICJ may refuse to accept India’s main prayer.
In the circumstances, therefore, India’s best bet is that the ICJ orders that Jadhav has the review and reconsideration remedy available to him under Article 199 of the Constitution of Pakistan. Pakistan has consistently maintained that this remedy has been available to Jadhav and his family since his conviction. If ICJ grants this relief to India, then this would be a legal and moral victory for Pakistan.
The lawfare conundrum for India
This time around, India chose to pick its battle with Pakistan at the ICJ. To its credit, India used legal technicalities to its advantage when it got a stay order from the ICJ against Jadhav’s execution in May 2017. This, however, was a small victory. More importantly, however, India’s decision to take this battle to the ICJ – which was not for the first time that the two countries locked horns at the ICJ – was not without some big surprises and a rather unexpected gritty fightback from Pakistan which put India on the backfoot.
#Kalbhushan execution stayed by ICJ till the final verdict.
— Syed Talat Hussain (@TalatHussain12) May 18, 2017
India’s lawfare strategists did the right thing by throwing the rulebook at Pakistan. They, however, failed on one crucial count: harping endlessly on the narrative of Pakistan being a state sponsor of terrorism. India’s entire legal canvas was painted with that brush. What India neglected to do was answer the tough questions raised by Pakistan which included questions about Jadhav’s passport issue and how he was abducted by Pakistan from Iran as claimed.
Pakistan also took India to task for fudging the facts before the ICJ to somehow show that the FGCM and the Pakistani courts fell short of the 21st Century due process standards. Perhaps the biggest blunder by Indian strategic thinkers was the main prayer before the ICJ to annul Jadhav’s conviction. Even if this was India’s attempted political grandstanding and point scoring, here too, India failed to achieve its objectives.
Why? Because Pakistan meticulously picked holes in India’s ICJ lawfare. It adduced evidence of experts who examined and confirmed that Jadhav’s passport under the cover name was indeed a genuine Indian Passport. Pakistan also vehemently argued that Jadhav is a serving Commander of the Indian Navy and a vital cog in the wheels of the larger sinister Indian designs against Pakistan.
To its chagrin, India was dramatically limited in countering these arguments because the ICJ is not the UN or the FATF or some politically charged arena where it can get away with political support and corner Pakistan. This was Pakistan’s attempt at exonerating itself before the world and it did a damn good job. India may have chosen to pick this battle with Pakistan at the ICJ, but it may not end with the results that India would be expecting. An incremental lawfare victory for Pakistan may be just around the corner.
Hassan Aslam Shad is the head of corporate and international practice of a leading law firm of Oman. He is a graduate of Harvard Law School, USA with a focus in international law. Hassan has written extensively on topics of law including public & private international law and international relations. Hassan has the distinctive honor of being the first person from Pakistan to intern at the Office of the President of the International Criminal Court, The Hague. He has also represented Pakistan at the prestigious Jean Pictet international law moot court competition. He can be reached at: email@example.com.
The views expressed in this article are the author’s own and do not necessarily reflect the editorial policy of Global Village Space.