Ahmer Bilal Soofi |
The Jadhav Case just heard at the International Court of Justice has the potential of serving as a turning point through which Pakistan can project to the world something it has not been able to argue with as much success owing to India’s lawfare against Pakistan in international relations – and it represents a credible challenge to the two-decade-old Indian narrative of an innocent state being hounded by Pakistan.
The Jadhav case is one of the few instances in which credible, or perhaps irrefutable, evidence of terrorist activities against Pakistan has emerged. This on the face of it appears to be a part of a broader strategy adopted against Pakistan to undermine its efforts in the war against terrorism. It is thus vitally important to understand the significance of this development coming to light as this capture of a senior Indian officer, in unusually suspicious circumstances, maybe the biggest evidence Pakistan has had of Indian intervention since 1971.
The Charter of the United Nations imposes on all member states some integral obligations which are at the core of every State’s sovereignty. In this respect, Art. 2(4) of the UN Charter, in addition to customary international law, embodies the principle of non-intervention. The provision states:
‘All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.’
This principle recognizes a State’s sovereignty, and in upholding that sovereignty, dictates that the same must not be violated. The Indian tactics deployed against Pakistan through Commander Jadhav – evidences which India finds difficult to refute, and is unable to even discuss – are an example of such a violation of this pre-emptory norm of International Law. All such measures have been adopted in a bid to terrorize and destabilize Pakistan, something which Commander Jadhav has also admitted in his confession.
In this respect, the Attorney-General of Pakistan, Anwar Mansoor Khan, in his capacity as the agent of the Islamic Republic of Pakistan, at ICJ, presented a portrayal of India’s action as perpetrated through Commander Jadhav. He categorically stated that India, through its policy of ‘intervention’, has been involved in destabilizing and creating hegemony over its neighbours by ‘force’ and has caused the spread of terrorism through funding and training.
Jadhav’s Actions Represented Indian State
These words, under International Law, have serious connotations attached to them. In choosing these words, it is clearly indicated that firstly, the conduct of an Indian spy (whose official positon India is unable to refute) is directly attributable to India and secondly the acts constitute a violation of the principle of non-intervention. This becomes all the more evident through the admission by Jadhav in pursuance of FIR No. 6-2016 wherein he mentions that he has been sponsoring, supervising and carrying out these unlawful activities of terrorism under the direct instructions, command and authorization from his handler Anil Kumar Gupta, the Joint Secretary of Research and Analysis Wing (RAW) which would necessarily mean that an organ of the State is perpetrating such acts.
Here, reliance may be placed on Art. 4 of the Draft Articles on State Responsibility for International Wrongful Acts, 2001 (ARSIWA). The provision states:
‘The conduct of any State organ shall be considered an act of that State under International Law…’
Furthermore, this provision does not make any distinction between the acts of ‘superiors’ and ‘subordinates’ owing to the phrase ‘whatever position it holds in the organization of the State’. We see that not only was it shown that Commander Jadhav was a commissioned officer in the Indian Navy (a fact India has been unable to deny) but was also subsequently recruited by RAW – as is abundantly clear from disclosures in Indian media. Undoubtedly, an attribution of ‘state responsibility” can be established owing to his admission of involvement in terrorist activities perpetrated through several local residents, collaborators, conspirators and non-state actors.
India for its part has denied any such assertion and has effectively denied the authenticity of the confession wherein they allege that the same has been extracted through torture. Here, Annexure 17 to the Counter-Memorial of Pakistan makes for an interesting reading which shows the FIRs that have been registered against the accused, a copy of an authentic Indian passport (issued under a fake identity) and his confessional statement. The substance of these documents lays down potential leads that required further investigation to prosecute the suspect and could also have been used to confirm/deny the involvement of Indian organs in such actions.
India’s refusal to respond to Pakistan’s Letter of Assistance
Had India responded to the Letter of Assistance (LOA) from Islamabad and provided statements of persons listed in the LOA and given access to records and materials, regarding Jadhav, that Pakistan requested then it (depending upon its evidence) it could have shown that the contents of Pakistani FIRs and Jadhav’s confessional statement were baseless. Surprisingly, however, India refused to comply with Pakistan’s request. Such a denial may not only be construed to mean an alleged involvement of the Indian organs but also an implicit affirmation of the contents of the LOA and its annexures.
In addition, complying with this LOA, is also an obligation upon India by virtue of para 2(f) of UNSCR Res. 1373 which states:
‘Afford one another the greatest measure of assistance in connection with criminal investigations or criminal proceedings… including assistance in obtaining evidence in their possession necessary for the proceedings.’
The FIRs which were registered against the accused show that he admitted to executing terrorist attacks against Pakistan and waged war against the State of Pakistan with a view to disintegrating Pakistan by fomenting separatists movements in Balochistan. In this respect, the accused stated that the unlawful activities were conducted with the explicit aim of destabilizing Pakistan and obstructing the military and other law enforcement agencies of Pakistan from restoring peace in Balochistan and Karachi.
The words waging war against Pakistan is a very serious charge which is codified, inter alia, under Section 121 of the Pakistan Penal Code of 1860. Under this provision, whosoever conspires to deprive Pakistan of the sovereignty of her territories shall be guilty of an offence. In contrast, the trial pursuant to which the death sentence has been awarded to Jadhav is that of espionage which is an offence under the Official Secrets Act 1923.
This distinction is extremely crucial because in order to continue to investigate the former charge, the authorities must be able to do so without any obstructions or intrusions. A corollary of that would also be the denial of consular access as legitimately allowed through the 2008 Agreement on Consular Access between India and Pakistan. Naturally, with India refusing to provide assistance to Pakistan in accordance with the LOA it is only natural that the investigations would become onerous and would take more time.
It must also be noted that for attribution to exist, there is per se no need for the State to be the proprietor of the unlawful act. For instance, in the Corfu Channel Case, Albania was held responsible for the laying of mines in its territory by an unarmed third party on the basis of its officials’ knowledge of the activity. One can see from the context that there is a more significant role as opposed to mere knowledge.
Nonetheless, such knowledge becomes apparent through the confessional statements coupled with a denial on part of India to comply with Pakistan’s Letter of Assistance (as tacit approval) as well as Public Statements of Indian officials. For instance, an Indian official was seen as stating the following.
‘…In defensive offence we start working on the vulnerabilities of Pakistan—it can be economic, internal security, political, its isolation internationally by exposing their terrorist activities…’
Jadhav’s disclosures correspond to earlier assertions by top Indian officials
From an International Law perspective, it is indeed worrisome that a government functionary is publicly declaring his intention to intervene in the domestic affairs of Pakistan and in turn violate the principle of non-intervention. It is also surprising as to how similar this terminology is to the International Court of Justice’s terminology on the principle of non-intervention in the ‘Military and Paramilitary Activities in and Against Nicaragua’ case wherein it was stated that
‘[the content of non-intervention includes] …the choice of a political, economic, social and cultural system, and the formulation of foreign policy. Intervention is wrongful when it uses methods of coercion in regard to such choices, which must remain free ones.’
He continued to add:
If they [Pakistan] have got a budget of Rs1,200 crore and we can match it with Rs1,800 crore, they [terrorists] are all on our side. They are mercenaries.
[We have to] work amongst Muslim youth. We have to work among the youth through Muslim organizations [as was done in the Jadhav episode]…
Pakistan’s vulnerability is many times higher than that of India. Once they know that India has shifted its gear from the defensive mode to defensive offence, they will find that it is unaffordable for them. You can do one Mumbai, you may lose Balochistan. There is no nuclear war involved in that and there is no troops engagement. If you know the tricks, we know the tricks better than you.
In continuing his statements of intending to commit international wrongs against another member state of the United Nations one can refer to the same passage from the Court’s judgement wherein it was stated that ‘The element of coercion, which defines, and indeed forms the very essence of, prohibited intervention, is particularly obvious in the case of an intervention which uses force… in the indirect form of support for subversive or terrorist armed activities within another State.’ The confessional statement of Jadhav seems to be consistent with the assertions made by Indian officials.
In addition to this, a satisfactory answer has not been given by India, either during the proceedings before the International Court of Justice or otherwise, in regards to Commander Jadhav holding an authentic Indian passport under a fake identity. Perhaps, one can find an answer to this question in the expert report by Mr. Westgate as annexed to the Counter-Memorial of Pakistan, wherein he concludes, after a thorough analysis that the passport was indeed issued by Indian authorities.
The aforementioned actions seem to suggest that Indian organs have been involved in the actions of Commander Jadhav in conducting terrorist activities within Pakistan as is evident through his confession. In this respect, it is immaterial as to the way in which force has been used by India against Pakistan. Even if indirect, the use of force could still be categorized as a violation of this principle.
It is virtually undisputed today both in international legal writings and in UN Practice that the scope of Art. 2(4) extends to the use of indirect force. The Friendly Relations Declaration of the GA describes the prohibition on the use of indirect force as:
‘… Every State has the duty to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another… when the acts referred to in the present paragraph involve a threat or the use of force.’
Accordingly, in the ‘Military and Paramilitary Activities in and Against Nicaragua’ case, the ICJ held that the arming and training of the ‘Contras’, a non-state actor, constituted the use of force by the United States.
Therefore, it may be asserted that India is responsible for the arming, training, financing and planning of terrorist attacks to destabilize Pakistan and the same is a violation of the principle of non-intervention with Jadhav’s actions being attributable to India. Consequently, India’s actions in coming to the International Court of Justice would be with unclean hands as pointed out correctly by Pakistan in its submissions. Lastly, it is important to note that a treaty like the Vienna Convention on Consular Relations, 1963 could have never envisaged a violation of the UN Charter or could have been intended to provide legal cover for a violation of the principle of non-intervention.
Ahmer Bilal Soofi, Former Federal Minister of Law and Special Envoy of Prime Minister of Pakistan a prominent expert in international law is also founder of Research Institute of Law (RSIL). He tweets @AhmerSoofi. The views expressed in this article are author’s own and do not necessarily reflect the editorial policy of Global Village Space.