Daily Times

Finally! Pakistan has started focusing on international law as the International Court of Justice (ICJ) indicated to the Islamic Republic of Pakistan to take all measures at its disposal to ensure prevention of execution of Indian spy Kulbhushan Sudhir Jadhav pending a final judgment of the court in said matter.

While an overwhelming majority of opinion makers from different walks of life in Pakistan considered it a defeat in legal battle between the two countries and blamed their government for poor handling of the issue, others, went as far as to argue the complete boycott of ICJ’s proceedings on grounds of lack of jurisdiction. Notwithstanding the fact that these opinion makers are leading, smart and significant figures in their respective fields in Pakistan, they’re not experts on the international law. Whatever they had to say with their limited and inadequate knowledge and understanding of the letter and spirit of international law, resulted in more confusion and perplexity for the ordinary Pakistani masses who now seem to further loose their already weak faith in the international law and related international bodies like ICJ and the United Nations. The purpose of this blog post is to clarify a few misconceptions widely circulated on mainstream print and electronic media and to reiterate the rewards and benefits that application of international law has to offer not just to Pakistan but the whole world.

It is pertinent to mention, that, indication by ICJ to Pakistan, to take all provisional measures to ensure prevention of Jadhav’s execution, is an interim order most likely to be pronounced in such cases that involve the question of life and death of a human being. This interim order by ICJ is fundamentally in consonance with the domestic law of Pakistan, Code of Criminal Procedure 1898, that also does not allow execution of a death sentence by trial court without confirmation of the same from all the relevant appellate forums. Anywhere in the world, in a sophisticated and civilised legal system, an awarded sentence of death is not executed till the final confirmation of its legal accuracy by the highest available appellate forum. Therefore, there is no reason for Pakistani politicians, intellectuals and anchorpersons to freak out as nothing unprecedented, improbable or unlikely has happened at the ICJ.

The fundamental question placed by India before ICJ concerns alleged violation of Jadhav’s right of consular access guaranteed by Article 36, Paragraph 1, of Vienna Convention on consular relations 1963, during the course of his arrest, detention and military court trial. It is therefore paramount to appreciate, that, it is not the jurisdiction, the validity or the legitimacy of the Pakistani legal system or the Military Court in Pakistan, that is under question, it is only Jadhav’s right of consular access during trial, that is the point of debate at ICJ. Pakistan is in a strong legal position to argue that consular access does not extend to alien enemies involved in activities of terrorism, espionage and breach of national security. However, still, if we may assume for a moment for the sake of argument that the ICJ is not convinced by Pakistan’s legal argument regarding consular access, it still does not have jurisdiction or the legal authority to order for the release of Jadhav. It may only direct Pakistan to retry Jadhav under its civilian legal system in a way that is in conformity with the relevant provisions of the international laws and treaties. Once it is done, Pakistan shall have every right to execute whatever sentence legally pronounced by a court under the law.

As indicated earlier, a large majority of politicians and anchorpersons on Pakistani media, vociferously argued against Pakistan’s appearance at ICJ in the first place. Post interim order, some even advocated boycotting the proceedings on grounds of lack of jurisdiction. My response to this visionless escapist approach is in clear and precise terms. Although lack of jurisdiction is a primary argument available to Pakistan, and it has also been argued by its legal team in Court, however, to challenge a court’s jurisdiction, one has to appear in court to argue on legal basis. Simple boycott of proceedings is not just an irresponsible and inappropriate way of doing the same, it further places an impression that one is trying to escape from international legal obligations. In the given circumstances, if there is someone that needs to hide and run, it is not Pakistan but India, that is accused of infiltrating Pakistan with spies involved in terrorist activities.

The second argument in response to the escapist approach is global and wider in scope.  Our world has now turned into a global village and it is not possible for any one country to live and act in isolation. It is therefore the high time that we devise and apply a set of collective rules and regulations to govern our mutual relations and to achieve our collective goals at the international level. Needless to say, one of the most important collective goals is to attain global peace and security and it is only through further development and implementation of international laws that we can make our world a more civilized and peaceful place to live. The solution to our existing problems of violence, terrorism, genocide, espionage and war crimes, does not lie in boycotting international bodies but in making these bodies more active, energetic, enterprising, influential and impartial. These international bodies ought to be reminded that if a human life is the most sacred thing in the world and “right to life” is the most important right worthy of protection under international law, then this right ought to be extended to the entire human race irrespective of race, color, creed, nationality and religion. To do so, these international bodies need to do more and civil and military establishments of States that are aggrieved have to play their roles. If international law and ICJ can come to rescue an alien enemy involved in espionage and terrorist activities on grounds of violation of his right of consular access, then innocent civilians of Kashmir, Palestine, Syria, Iraq and Afghanistan deserve all the more attention and protection of the international law. If India can invoke ICJ’s jurisdiction for Jadhav (an alien enemy involved in espionage and terrorism), why the same can not be invoked for poor victims of crimes against humanity in countries afore-mentioned? When was the last time this jurisdiction was invoked for victims of pellet guns in Kashmir, sufferers of bombings in Palestine and causalities of war in Iraq? The need of the hour, as stated earlier, is to expand the net and horizon of the international law through United Nations (UN) and related international organisations and that is only possible by further strengthening these organizations and by ensuring their objectivity and impartiality above board. Long gone are the days of the law of the jungle.