International Court of Justice (ICJ) operates
under the UN to decide cases of contentious issues between the States on
application by one of the parties. It, however, can neither deal with a dispute
on its own initiative nor it is permitted under its Statute to investigate and
rule on acts of sovereign States as it chooses. The States involved in the
dispute ‘must consent to the Court’s considering the dispute in question’.
ICJ has violated sheer violation of its own rules to give relief
to India which remained unchallenged by our legal team. Why ?I have examined
the matter related to the case of Kulbushan Yadav which was purely a proven
crime of espionage against Pakistan, hence, ICJ had no legal jurisdiction to
take up this matter.
It was a failure on part of our legal team and foreign office in
protecting the sovereign rights of Pakistan. The two nations can go to ICJ with
only signed and mutual consent on any matter.Pakistan neither gave consent nor
it opposed its trial and it is stated in judgement that Pakistan did not raise
their right of objection as stated below in my detailed analysis.
The court, on application by the government of India, took
cognizance of the alleged violations of Article 36 Vienna Convention 1963 by
Pakistan by denying consular access to Kulbhushan Jadhav, an Indian spy
arrested from Balochistan and made a judicial confession for sabotage
activities. Briefly, India contended that:
1. Allegedly
Pakistan failed to inform Mr. Jadhav of his rights under Article 36, paragraph
1(b) of Vienna Convention.
2. Allegedly
Pakistan failed to inform India, without delay, of arrest and detention of Mr.
Jadhav.
3. Allegedly
Pakistan failed to provide consular access, thus breach its obligations under
Article 36 of the convention.
The court assumed its jurisdiction to adjudicate the
application of India against Pakistan under Article I of Optional Protocol to
Vienna Convention on Consular Relations concerning the Compulsory Settlement of
Disputes. It concluded that it had compulsory jurisdiction under the said
Article.
Pakistan on the other hand contended that the provisions of
Article 36 of the Vienna Convention do not apply to the person arrested on
espionage charges, whereas we should have boycotted the proceedings and should
have gone to UN and filed a complaint against illegal proceeding in violation
of ICJ’s own law.
Although Article 36 VCCR does not expressly state that the right to access consular assistance can be refused where a national is accused of espionage, nevertheless, Pakistan justified its decision to refuse consular access to Mr Jadhav on three grounds:
1.
Pakistan argued that Article 36 VCCR was never
intended to apply to spies. Hence, and contrary to what Pakistan had claimed,
the failure of the drafters to build an espionage exception into Article 36
does, in fact,indicate that they intended for the protection afforded by this
provision to be available to all individuals, including spies.
2. Pakistan
maintained that customary international law permits states to refuse to
nationals the right to access consular assistance in the event that they are
accused of spying. Pakistan’s central claim was that, because the Preamble to
the VCCR affirms that ‘rules of customary international law continue to govern
matters not expressly regulated by the provisions of the present Convention’,
this agreement does not cover in to all matters pertaining to consular
relations.
3. The
2008 Agreement on Consular Access between Pakistan and India prevails over the
VCCR, which allows states to deny consular access where it is necessary to
maintain national security yet the ICJ rejected all three of Pakistan’s
arguments.
It was the argument of Pakistan that the Agreement of
2008 was meant for case to case basis that this agreement was signed keeping in
view the spirit of the Vienna Convention. However, India did not agree to the argument
of Pakistan and the court, unfortunately, sided with India and ruled that the
agreement of 2008 does not overrule Article 36 of the Vienna Convention.
The court held Pakistan guilty of breach of Vienna Convention by
majority votes (by 15 to 1) and ordered as under:
147. To conclude, the Court finds that Pakistan is under an
obligation to provide, by means of its own choosing, effective review and
reconsideration of the conviction and sentence of Mr. Jadhav, so as to ensure
that full weight is given to the effect of the violation of the rights set
forth in Article 36 of the Vienna Convention, taking account of paragraphs 139,
145 and 146 of this Judgment.
While delivering the judgment, the court, however, observed that
Pakistan never raised objection to the jurisdiction of the court under Article
I of Optional Protocol to Vienna Convention on Consular Relations concerning
the Compulsory Settlement of Disputes. This observation of the court needs to
be thoroughly investigated to find out why and by whom it was chosen not to
challenge the jurisdiction of the court under the said article. And the public
has the right to know about these legal mishaps
Kulbhushan Jadhav was arrested by Pakistani law enforcement
agencies from Saravan, Balochistan. After his arrest, the agent admitted to
being an ex-Indian Naval officer and working in Balochistan at the behest of
RAW. He admitted having carried out several terrorist activities inside
Pakistan. At the time of his arrest, he was holding an Indian passport in the
name of Hussain Mubarak Patel, with a valid Iranian visa. He, however,
identified himself as Kulbhushan Jadhav, an ex-Indian Naval officer, working
for RAW. Kulbhushan confessed that he was hired by RAW in 2013 as the head of
operations in Balochistan and Karachi and was assigned the tasks of killing
Pakistanis, funding Baloch insurgents, planting bombs and destroying sensitive
installations in Balochistan.
It is interesting to mention that Kulbhushan’s father Sudhir
Jadhav has not denied the allegations leveled against his son.
Pakistani investigators claimed that the arrested
Indian spy was running a terrorist financing and training network that used to
operate from Chabahar in Iran, Makran in Pakistan, and adjoining districts of
Afghanistan. His task was to initiate a series of subversive activities on the
Makran coast where not only Chinese are working on Gwadar port, but also
Pakistan Navy and Air Force have multiple facilities.
He also confirmed Daesh’s existence in Pakistan and that it is RAW
that supports Daesh in Karachi to carry out terrorist activities there. He also
revealed about the terrorist activities he carried out himself in Pakistan
which include the Mehran Base Attack, murder of Mr. Aslam. He had admitted that
he was planning to attack Gwadar Hotel in Gwadar to target Chinese workers. His
plan was to target CPEC and Gwadar port directly, and he was supposed to
infiltrate 30 to 40 RAW agents in Pakistan. He also wanted to reignite the
dying insurgency in Balochistan.
Pakistan military court had sentenced Jadhav to death by hanging
in April 2017 on espionage and terrorism charges under Army Act 1952. No date,
however, was set for his execution. The delay in his execution by hanging had
provided an opportunity to India to invoke the jurisdiction of the ICJ. The
judgment of ICJ has not only negatively affected the sovereignty of the state
but also weakened the deterrence of punishment to spies working against the
interest of the state. Pakistan had been directed to stay the execution until
the outcome of the review of the case by Pakistan.
Surprisingly, there was only one ad hoc judge from Pakistan on a
bench of 15 judges. The judgment clearly demonstrates a tilt of the court
towards the arguments advanced by India and rejected every argument of Pakistan.
The court did not accept Pakistan’s stand that the mutual agreement between
Pakistan and India in 2008, which deals with consular access, was reflective of
the spirit of the Vienna Convention. The question of consular access, under the
agreement, to those arrested on espionage charges was clearly separated from
those arrested on ordinary charges. The court, however, ruled, by accepting the
argument of India, that this agreement does not overrule Article 36 of the
Vienna Convention.
In fact, the basic trial of this case was against the law and it
was like predetermination to give relief to India. Pakistan has amended the law
giving the right of appeal to Kulbhushan Yadav, but that does not qualify him
to get himself exonerated. The law and punishment for a spy/person accused of
espionage is still intact and let us see if he is hanged for his crimes against
innocent Pakistanis or not. I expect that law will come into force to create
deterrence and deliver a strong message that there is no mercy for those who
are involved in acts of espionage against our people.
The article was published in the News on November 30,
2021. Link to the original article. https://www.thenews.com.pk/print/912873-icj-illegal-trial-vs-pak-sovereignty
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