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Zeeshan Munir |

Everyone in Pakistan seems to have been caught off guard by the desperate Indian act of approaching ICJ to safeguard its national Kulbhushan Jadhav. Minister of External Affairs of India, Ms. Sushma Swaraj just before midnight on May 9th broke this news via her twitter account, informing her compatriots of this last ditch Indian effort. Her statement in the parliament iterating that India would go “out of the way” to save Jadhav seems to be coming to effect.

Indian violation of UN Charter

This malignant Indian act violated the principle of non-interference recognized in Article 2(4) of the UN Charter.

In the confessional statement released by ISPR in 2016, Mr. Jadhav, a serving Indian naval officer revealed that he is a spy working for premier Indian intelligence agency RAW. This indeed was an earth shattering revelation since it implied that India is involved in the extraterritorial spying and has violated the sovereignty of another country in brazen infringement of international law. This malignant Indian act violated the principle of non-interference recognized in Article 2(4) of the UN Charter.

Mr. Jadhav also disclosed that RAW is in direct contact with BLA, BRA and other Baloch separatist organizations and provides them with weaponry and cash to assist them in their guerrilla-style operations against Pakistani security forces. This Indian act also exceeds the non-interference standard provided for by the UN Charter. U.S. support to the contras in Nicaragua in the 1980s constitutes the most notable example of such an instance available in the international jurisprudence.

Rea more: India’s Fury on Kulbhushan’s Death Sentence: What are India’s real options?

The Status of Kulbhushan Jadhav under international law

International law texts also state that individuals not part of diplomatic missions or operating inside the territory of another country without the letter of recommendation by their respective government have no recognized position

Mr. Jadhav entered Pakistan from Iran using the alias Hussein Mubarak Patel. He was carrying various identity documents. After his arrest was made public, India did not declare him the member of diplomatic staff. For their part, non-diplomatic state agents involved in espionage or subversive activities in the territory of another country do not benefit from any diplomatic immunity and are personally culpable for any violation of the laws of the state where they were caught spying. It is worth mentioning that the states of such spies are responsible for any breach of international law arising from their actions.

International law texts also state that individuals not part of diplomatic missions or operating inside the territory of another country without the letter of recommendation by their respective government have no recognized position. That person may be expelled at any moment if he becomes troublesome and he may be criminally punished if he commits a political or ordinary crime.

Also, Mr. Jadhav is a serving Indian naval officer. He was caught doing espionage. India and Pakistan are not in the state of war. However, IHL which regulates war has provided its own rules on spies. Article 46(1) of the 1977 Additional Protocol I provides that, “notwithstanding any other provision of the Conventions or of this Protocol, any member of the armed forces of a party to the conflict who falls into the power of an adverse party while engaging in espionage shall not have the right of prisoner of war and may be treated as a spy.” A broader interpretation of this rule during peace time, one can infer that the domestic law of the state in which the act of espionage was conducted can try the spy under its domestic law.

Read more: Kulbhushan Yadav’s death sentence: Has Pakistan pressed the self-destruct button?

Options for Pakistan

India has always maintained that all disputes between her and Pakistan be solved bilaterally without the involvement of the third party. It even made amendments in its constitution to ensure it happens.

The proceedings initiated by the Republic of India against the Islamic Republic of Pakistan before ICJ have been based on the violation of Vienna Convention on Consular Relations by the latter. Accordingly, India has sought to suspend the death sentence of its national which is awarded by the military Court. India has invoked the jurisdiction of ICJ under Article 36, paragraph 1 of the Statute of the Court, by virtue of the operation of Article I of the Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes of 24 April 1963.

ICJ gets jurisdiction only on the basis of the consent of both parties. However, in certain circumstances, when the both the parties are signatories to a statute, the compulsory jurisdiction of ICJ can be invoked as has been done by India in Jadhav’s case citing the Article I of the Optional Protocol. How Pakistan challenges this compulsory ICJ jurisdiction has yet to be seen.

However, if Pakistan does accept ICJ jurisdiction and agrees to contest the case before ICJ, it must use this opportunity to expose Indian involvement in terrorism inside Pakistan. The evidence of Indian support to terror outfits like TTP, BLA, BRA etc among others must be presented to ICJ to hold it accountable before the Court and international community. Pakistan must also file a petition to declare India a terrorist sponsoring state.

India has always maintained that all disputes between her and Pakistan be solved bilaterally without the involvement of the third party. It even made amendments in its constitution to ensure it happens.

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

In September 1974, India declared the matters over which it does not accept the jurisdiction of ICJ. Chief among them were the ‘disputes with the government of any state which is or has been a member of the Commonwealth nations’. This declaration was later ratified by the Indian parliament. Pakistan happens to be a member of Commonwealth comity and by the virtue of India’s own declaration, the latter cannot take the former to ICJ.

However, this Indian act of invoking ICJ jurisdiction will now pave way for Pakistan to take those matters to ICJ which it previously could not. Chief among them is the Kashmir dispute which India has always declared to be a bilateral dispute between the two states. Pakistan must follow India’s lead and initiate proceedings against India for violation of human rights in the occupied valley. It must also invoke the jurisdiction of ICJ to hold India accountable for not implementing the UNGA resolution on Kashmir.

Zeeshan Munir writes regularly for various local and foreign think tanks. He has a deep interest in geopolitics and International Humanitarian Law. The views expressed in this article are the author’s own and do not necessarily reflect Global Village Space’s editorial policy.

Zeeshan Munir is a Research Analyst and Sub Editor at Global Village Space. He has a penchant for writing on the Middle East and International Humanitarian Law.

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