Syed Qamar A Rizvi
THE Hague based International Court of Justice (ICJ) admitted India’s application on May 10 regarding Indian Navy officer Kulbhushan Yadav, who was sentenced to death by a Pakistani military court on terrorism-led espionage charges. The ICJ settles legal disputes between states, who must agree to abide by the Court’s jurisdiction before their case will be heard. On Monday, Pakistan’s legal team astutely solicited before the ICJ’s fifteen judges panel that in the exigency of national security interests, the jurisdiction of the Court could not be exercised. They argued about India’s mala fides/ultra vires in the said case. Should the ICJ not find it possible to accept the Pakistani plea (albeit premature to conclude) vis-à-vis its jurisdiction, the Court will proceed directly to examine the merits of the case.
Jadhav, after having been tried by a Pakistani military court, was sentenced to death on April 10, through a Field General Court Martial (FGCM). He was investigated under Section 59 of the Pakistan Army Act (1952, amended in 2015) and Section 3 of the Official Secrets Act of 1923, on charges of terrorism , espionage and sabotage activities. This is the first time India has initiated a case at the ICJ since 1971(a move beyond ‘bilateral settlement of dispute’). Under article 36 of the court’s statute, any state may consent to the court’s compulsory jurisdiction in advance by filing a declaration to that effect with the UN secretary-general.
“Referring to ‘the extreme gravity and immediacy of the threat that authorities in Pakistan will execute an Indian citizen in violation of obligations Pakistan owes to India’, India urges the Court to deliver an order indicating provisional measures immediately, ‘without waiting for an oral hearing’,” India’s appeal said. Both countries will now have to make written submissions, which will be kept secret, unless India and Pakistan agree to public it. Neither India nor Pakistan can appeal the final verdict, since ICJ judgments are only open to revisions or interpretations.
The right to consular access, encompassing the right of sending-state consuls to visit, converse with and arrange legal representation for nationals of the home-state in custody of the receiving-state, is provided for under article 36(1)(c) of the Vienna Convention on Consular Relations, 1963 (VCCR), to which both India and Pakistan are parties. While India has been talking about the Vienna Convention; Pakistan has, time and again, claimed that the 2008 bilateral agreement on Consular Access allowed for both sides to make an exception to the granting of access when issues of ‘national security’ were involved.
Nevertheless, some of the VCCR clauses are subject to different interpretation. Pakistan’s legal team holds strong conviction that the non-compliance of Article 36(1)(c) has to be permitted in specific situations concerning national security. The contention fostered by the Pakistani security agencies and the arguments— gravely held by Pakistan Foreign Office do amply advocate the fact that Pakistan national security has had been highly compromised as reflected in the dossier— that has been handed over to the UN Secretary General Antonio Guterres by Pakistan’s ambassador to the UN Dr Maliha Lodhi—concluding and warranting therein the acts of terrorism committed by Yadav inside/outside Pakistan. The acts of terrorism committed by Yadav are in clear violation of the UN Charter, the UNSC resolutions and international conventions on Terrorism. Given the history, there have been three precedents at the ICJ where a national of another State has been prosecuted and sentenced, and where both are parties to the treaty and the protocol: Paraguay versus USA in 1998; Germany versus USA, 1999 (known as the La Grand case); and Mexico versus USA, 2003 (the Avena and Other Mexican National case). But only a relief was given to all three cases in death execution. But this case is jurisprudentially challenging in terms of keeping a ‘balance between the dynamics of national law and those of international law’. The rules of State responsibility have an inevitable but under-utilised role to play in the terrorism context. That needs to be examined under Article 36(2) of the ICJ Statute.
Terrorism has been clearly defined by international bodies such as the United Nations General Assembly in resolutions 49/60 and 51/210, acts of espionage undertaken during peacetime, which in the said case seem the prime accusations against Yadav. Since there appears a correlation between Yadav’s acts of terrorism and India ‘s State responsibility, the Rainbow Warrior case is a right reference to mention here, a dispute between New Zealand and France that arose in the aftermath of the sinking of the Rainbow Warrior. It was arbitrated by the then UN Secretary-General Javier Pérez de Cuéllar in 1986, and became significant in the subject of Public International Law for its implications on State responsibility. The Rainbow Warrior case bolsters the notion that there is a doctrine of non-intervention in international law and that states will be punished for contravening it. Undeniably, the domestic laws of both India and Pakistan contain detailed provisions on acts of terrorism.
Its broad scope notwithstanding, the rights under Article 36(1) (c) of the Vienna Convention are required to be exercised in conformity with the laws and regulations of the state where the national has been detained or arrested. Consequently, the legal perceptivity— generally shared by international law experts— indoctrinates the fact that given the applicability of the national laws reflected in the provisions of the Anti-Terrorism Act of Pakistan, 1997 and those of the Protection of Pakistan Ordinance/ Security of Pakistan Act, 2014(focusing on the prime considerations of national security), Islamabad is highly justified in its stand of giving no consular access to Yadav.
— The writer, an independent ‘IR’ researcher-cum-analyst based in Karachi, is a member of European Consortium for Political Research Standing Group on IR, Critical Peace & Conflict Studies.