India in an all-out effort to rescue its spy Kulbhushan Jadhav operating blatantly in Pakistan, has filed proceedings against Pakistan at the International Court of Justice (ICJ) for the violation of international law, especially by accusing Pakistan of “egregious violations of the Vienna Convention on Consular Relations”. Very interestingly, in haste, India itself has forgotten several norms of international law and the statute of the international court of justice 1945.
Firstly, for the general public, it is significant to understand the working of the ICJ and its mandate. The common consideration is that any injustice done around the world shall give the ICJ authorisation to take cognisance of the matter. The reality is different from this misconception.
The ICJ is the primary judicial organ of the United Nations (UN). One of its main functions is to settle legal disputes submitted by states and to provide advisory opinions on legal questions presented before it by international organs, agencies, and the UN General Assembly.
The court was established in 1945 through the UN charter. Since its inception, the ICJ has undertaken very few cases. However, due to the changing political scenario of the world, the developing countries are more willing to utilise this judicial forum.
In accordance with the Article 93 of the UN Charter, all member states automatically become a party to the Statute of the ICJ. Once a state has become a part of the ICJ statute, it is permitted to participate in cases. However, it is important to note that being a party to the statute does not automatically give the court jurisdiction over disputes involving the member states.This means that ICJ’s jurisdiction can be divided into two types: contentious issues and advisory opinions.
In contentious cases, the member states who have a dispute amongst them and willfully submit to the competence of the court for adjudication are entertained, which makes the decision by the ICJ binding upon them.
This brings forward a direct question on the scope of the jurisdiction of the Court in contentious cases. As mentioned above, a clear misapprehension within Pakistan is that the court can directly and forcefully undertake issues. Article 36 of the Statute of the ICJ clearly specifies that the court has jurisdiction only on the basis of “consent”, meaning thereby that matters can only be undertaken by the court if state parties agree to it.
We all are aware of the tragic incident of 1999 where a Pakistan Navy’s reconnaissance aircraft ‘Atlantic’ was shot down by the Indian Air Force. The incident was considered as a blatant violation of international law and specifically Article 2(4) of the UN Charter that strictly prohibits all member states to respect the territorial sovereignty and political independence of each other.
Naively, Pakistan took the brazen violation of international law to the ICJ to seek reparation. Unfortunately, the ICJ refused to entertain the matter as India argued that the court lacked jurisdiction. As India didn’t give consent to bring the Atlantic issue before the ICJ, the matter was dismissed at the preliminary stage.
In a similar twist, the Indian petition before the ICJ also suffers from similar defects. On March 29, 2017, Pakistan’s permanent representative to the UN while commenting on the jurisdiction of Article 36 reiterated that ICJ’s jurisdiction shall not apply to:
a) disputes relating to questions which fall essentially within the domestic jurisdiction of the Islamic Republic of Pakistan;
b) disputes relating to or connected with any aspect of hostilities, armed conflicts, individual or collective self-defence or the discharge of any functions pursuant to any decision or recommendation of international bodies, the deployment of armed forces abroad, as well as action relating and ancillary thereto in which Pakistan is, has been or may in future be involved;
c) all matters related to the national security of the Islamic Republic of Pakistan;
Once again it is so evident that these three reservations vest at the core of Pakistan’s internal security and political independence which may never be compromised.
Mr Jadhav has been arrested as a spy on espionage activities. He has confessed himself that as being a responsible Indian Naval officer, he entered Pakistan several times and undertook anti-nationalist and sabotage activities which lead to the deaths of numerous innocent Pakistanis.
There is no treaty which discusses the treatment of such an individual except for the Geneva Conventions of 1949 and its two additional protocols which call for equitable treatment of hostile enemies in accordance with their rank and cadre. In this regard, Mr Jadhav was given more than that as he was accorded a fair trial as per the law of the land where trials of other criminals of similar nature are also undertaken.
What India needs to do is to honourably gulp the reality that Mr Jadhav was caught as a RAW operative in Pakistan with sufficient evidence and that such individuals can never be spared for their nefarious role which leads to the deaths of innocent people.
However, on May 10, 2017, in another press release, the ICJ has announced that there shall be a public hearing where both parties shall be heard. The law is itself clear, but it shall be intriguing to note the contentions of the ICJ.
The writer is a practising Barrister and Advocate of the High Courts of Pakistan. He can be reached at [email protected]