Dr Muhammad Khan
THE rejection of Indian plea against Pakistan by International Court of Justice (ICJ) on 17 July 2019 has put India into mourning mode. It is similar to what it faced on the fateful day of 27 February 2019, once Pakistan Air Force downed its two fighter aircraft. The ICJ, rejected Indian demands of annulling the sentence awarded to Indian Naval Commander, Kulbhushan Jadhav by the military court of Pakistan. It also rejected all other remedies sought by India, except the counsellor access. The ICJ has not contested or rejected the conviction and sentence of commander Jadhav by military court. Furthermore, the acts of terrorism and espionage of Jadhav were also authenticated by ICJ, as framed by Pakistani military court. “The Court notes that Pakistan acknowledges that the appropriate remedy in the present case would be effective review and reconsideration of the conviction and sentence.” The most appreciating part of the ICJ was lauding the Pakistani justice system. It also endorsed the military court of Pakistan and provisions mentioned in the Pakistan Army Act-1952. With all evidences, Commander Jadhav was tried by the military court through Field General Court Martial (FGCM) under Section 59 of the PAA and Section 3 of the Official Secret Act of 1923. During the proceedings of the case, Commander Jadhav was provided with a defence counsel to fulfil the legal requirement. It is worth mentioning that Jadhav is a serving military officer; therefore, his trial had to be undertaken by military courts as per law, no matter Indian lawyers or any other organization may have objection on it. Now asking for a review by ICJ within the constitutional provisions of Pakistan is all the more ratification and showing confidence on Pakistani judiciary and its justice system.
It is rightly said by DG ISPR that the decision of ICJ, rejecting the Indian plea and upholding Pakistani stance is another 27 February for India. 27 February 2019 was a great embarrassment for poorly planned actions of Indian armed forces, which has been deceiving its masses with false claims of surgical strikes and putting Pakistani armed forces on back foot. It was equally humiliating for its vindictive and evil minded Indian media houses, which spread bogus and negative news with pretentious narratives to wrongfully attract the people’s attention. Besides, it was a shameful day for the cunning and selfish political leadership of India, especially the RSS-led BJP which has stage-managed the entire drama of Pulwama Attack and its subsequent phases. Indian leadership has been wrongly depicting that it has isolated Pakistan on political and diplomatic fronts at global level. In fact, the legal experts expected the ICJ not to accept the India plea for even hearing. It was a case similar to Indian shooting of a highly sensitive and expensive Pakistani Naval aircraft in August 1999. At that time this international body of justice had refused to entertain the Pakistani case against India on the plea that the case is beyond the jurisdiction of ICJ. On the same plea, ICJ could have rejected the Indian application right from the outset. One of the Pakistani origins Judge, Justice Jillani differed with the ICJ over the same plea. He opined, “Court should have found India’s application to be inadmissible because its conduct amounted to abuse of rights.” He referred to 2008 agreement between India and Pakistan, which governed questions of consular access and assistance in the case of arrests and detentions made in the cases of terrorism and national security.
It was under the same provisions of 2008 agreement that Pakistan lawfully withheld consular access and assistance to Commander Jadhav, since he was promoter of terrorism, separatism and espionage in various parts of Pakistan. In fact, asking for the counsellor access to such terrorists is going to put wrong and very ‘dangerous precedent’ not only for South Asians but for entire international community. This is more dangerous under the prevailing international environment, “at the times when states are increasingly confronted with transnational terrorist activities and impending threats to national security. Terrorism has become a systemic weapon of war and nations would ignore it at their own peril. Such threats may legitimately justify certain limits to be imposed on the scope of application of Article 36 of the Vienna Convention on Consular Relations, in the bilateral relations between any two states at any given time.” Indeed, the Indian reference of the Jadhav case to ICJ has provided Pakistan with a precedence to take the case of massive and continuing human rights violations in Indian- occupied Kashmir to this international body. Kashmir has never been a bilateral dispute right from its origin and it was again India which refers the case to UN on 1 January 1948. This is essential to refer the Kashmir case to International Court of Justice since India is not a member of the ICC; otherwise the criminal record of Indian human rights violations in the occupied State deserved criminal procedure at ICC. The silence over the human rights violations in the IoK has indeed encouraged India to further enhance the impetus of killing, torturing and humiliating the innocent Kashmiris.
— The writer is Professor of Politics and International Relations at International Islamic University, Islamabad.