A serving officer of Indian Navy was caught in Balochistan in April 2017 while actively involved in creating unrest in the region, on one side it assured the common citizen that our agencies are keeping their eyes and ears open to thwart efforts to destabilize Pakistan while our enemy continues to expose itself through reckless and unprecedented deeds of acrimony. It can also be judged from the statement of Indian PM Modi who accepted his direct participation in Jann Singh to create Mukti Bahini which played heinous role in the dismemberment of Pakistan in 1971.
The interesting aspect of Commander Kulbhushan yadeve arrest is that it has unfolded Indian strategy to establish its footprint in the Iranian port of Chahbahar with the purpose to create destabilization in the garb of trade and maritime activities. It has invested millions of dollars for the development of the port to link it with Afghanistan thereby circumventing the traditional route of Afghan trade and China Pakistan economic corridor.
In order to disrupt the Pak-China route, the Indian spymaster obtained a fake Iranian passport with a fake name of Mr Patel disguised as a businessman. His mission was to create unrest in Balochistan, through establishing illegal training camps/bases, funding separatist elements and organize anti-state activities. In the light of the law of the land, he was awarded Capital Punishment in 2017. Subsequently, the Indian establishment started making efforts to reduce the level of embarrassment to India. The matter was taken up at UN, which refused to entertain the case after the Govt of Pakistan presented the dossier of the spy.
The next step was to approach the International Court of Justice. Normally such cases are not taken up at these forums, being an open and shut case, however giving It a legal dispute angel is a futile effort to mitigate the adverse diplomatic and national embarrassment. The international court of justice is governed by International Law this term was first used by eminent British Jurist ,Jermy Banthen, in 1780. Since then these words have been used to donate the body of rules which regulate the relations among the states. Oppenheim defined “Law of Nation or International law is the name for the body of customary and treaty rules which are considered legally binding by civilized states in their intercourse with each other. After the second world war” the International law included/added clauses pertaining to safeguarding the interest of citizens of member states. For example, the Prisoners of war are given certain rights by the Vienna convention. It is in this context that the Indians have approached the International court.
National Strategy needs to be formulated to fight a legal battle on disputes such as Kashmir, Sir Creek, Siachen glacier, Maritime Boundaries and all reported cases of espionage. The committee should formulate a law that can be helpful to Pakistan in settling of disputes at I.C.J. as international court always refers to the law of the concerned country while deciding arbitration matters
The first pre-requisite is that both parties should agree to refer the case in I.C.J. Pakistan could have decided to refuse to take the matter in I.C.J. however it decided to present its case in response to the Indian plea. They pleaded that counsellor access was denied as per clause 36 of Vienna convention. This plea has some flaws such as provision is for looking after the health and prison conditions of the detainee. The circumstantial evidence is that commander kulbhushan was provided a good environment.
During the visit of his mother and wife, both of them expressed satisfaction about the health of the spy. Moreover, the Indian counsellor was also able to see them.
The time frame for provision of counsellor access is not defined. Since access has been provided. And the individual is fine, the purpose of the clause has been fulfilled.
as defending officer is provided in court-martial who can record irregularities, if any.
Indian efforts to get a concession on commander kulbhushan took a new turn soon after Pulwama attacks. Air operations, Indian submarine detected on our coast, firing on line of control are the efforts to intimidate Pakistan and demand concessions such as a reduction in the sentence announced to Indian spy.
What Pakistan should do if such cases happened in future? A prominent group of judges should be formed to analyze all the subsequent controversies with India in a legal framework and render advice to concerned departments such as foreign office, intelligence agencies and decision-makers at appropriate level. This forum may also be requested to recommend a way forward on pending case of Sumjhota express victims. It is time to take up such matters at I.C.J.
National Strategy needs to be formulated to fight a legal battle on disputes such as Kashmir, Sir Creek, Siachen glacier, Maritime Boundaries and all reported cases of espionage. The committee should formulate a law that can be helpful to Pakistan in settling of disputes at I.C.J. as international court always refers to the law of the concerned country while deciding arbitration matters.
The author is a freelance writer and Retired commodore of Pakistan Navy, he can be reached at msohailyz@gmail.com