Jadhav’s verdict – How Pakistan still wins

by Aneela Shahzad

Global politics works on certain tested tools, the control of ‘hope and fear’ being one of them, and ‘geopolitical scripting’ is a tool to control that tool. Before the Invasion of Iraq, Bush’s repeated use of the scripts ‘us’ and ‘them’ divided the world into two separate spheres, of ‘hope’ that the US’ War on Terror will save them from terrorist attacks, and of ‘fear’ of being declared a terrorist state or of harboring terrorism. And in the sway of this rhetoric, the US was able to collapse many countries of its disliking.

It is true that a strong narrative does not sustain without a strong projection of power alongside, yet they both fill in the gaps left by the other. Nevertheless, mankind has always shown to be more manageable where consent exists, while the weakest might give a formidable resistance where there is a clash of ideology. So in today’s times, being able to project a strong narrative defines a nation’s level of sovereignty, while a weak narrative opens it to fear and intimidation.

Kulbhushan Jadhav’s case is also one of controlling the fear/hope space between India and Pakistan. If we are able to deconstruct the myth of false hopes and groundless fears, perhaps we may be able to recognise our friends and foes more clearly and act more reasonably in our international deliberations.

Viewing things in the global perspective make is clear that Jadhav’s case is not merely of local implication. To start with, Obama’s failure to pivot the Pacific states against China as he offered them the free-market glare and massive arms deals – isolated the US in the western Pacific and weakened its aggressive stance on the South China Sea Issue. Couple that with the US retreat in the case of Syria and Russia’s finding the gap to assert its strength in Syria, strengthening Iran along the way – and you will find the paucity of the narrative the US is facing in the global arena at this time.

On the other hand, Pakistan has been a constant thorn in the feet that impedes progress in Afghanistan for both the US and India. All this has made the US and India closer than ever, with the US selling it the dream of a global economy and regional hegemony. The dream is not false, it can be true, India has the immense human resource that can convert it into the new China, and it is huge enough to cater for US capitalist needs. But what stands in the way of this dream are a threatened China and an encouraged Russia, who have come closer to strengthen Pakistan against India.

In this backdrop, when India has forsaken all friends inside Asia for a dream the US sells it, and when India is the only potential partner that has shown loyalty to US interests in the region, it is easy to see that Pakistan is in a politically dominant position as opposed to India’s. If we add here geo-economic factors like the CPEC and future gas lines that pass from Pakistan into India and the fact that Iran’s Chabahar Port is not deep enough to dock large containerships and needs to connect to Gawadar if it wants to operate in large-scale, we see how Pakistan is winning via its geography over India.

So should Pakistan as a nation, enclose itself in the fear of disgrace in the world community over the ICJ verdict that has ordered it to hold Jadhav’s execution for the time. Or understand that this is the US and its partner India’s desperate attempt of gathering a narrative of righteousness against Pakistan, while the world increasingly abhors US-style expansionism and unilateralism. A narrative under whose guise they may later valorously portray physical strength too.

It is clear that the US who has always extensively used its influence over the UN and its bodies is using it this time to influence the ICJ’s in a bid to gain a momentum for India. Kulbhushan Jadhav is only one person and we must understand that taking him back to India will not be a moral victory for India and will only mark it as a hegemon, who can portray might without necessarily being right, and whom everyone in the neighbourhood should fear.

India wins only if it is able to destabilise our political soundness, or is able to assert a moral precedence upon us. While we win only by standing our grounds and portraying the true narrative that we have been a double-victim, of India’s terrorism and ICJ’s bias. Because as of now, the gravity of situations is shifting both geopolitics and geoeconomics into our laps.

Dalit anger building up

DELHI’S Jantar Mantar saw on Sunday the rise of an apolitical Dalit force under the umbrella of the Bhim Army which disowned Mayawati and her BSP. Led by a 30-year-old lawyer, Chandrashekhar, the Bhim Army claims a 40,000-strong membership in seven states, though active mostly in western Uttar Pradesh. Some 6,000 blue-cap wearing young Dalits at Jantar Mantar rejected their traditional, elite political leadership which they felt had lost touch at the ground level as Dalits continue to suffer excesses at the hands of upper-caste ruffians. There has been a spurt in atrocities after the swearing in of Yogi Adityanath as UP Chief Minister. They say, “Behenji (Mayawati) was our leader; Bhaiya (Chandrashekhar) is our new leader.”

Some of the recent violent incidents — the burning of Dalit houses at Shabbirpur village near Saharanpur, allegedly by Thakurs, and Dalit-Thakur skirmishes during the Ambedkar Jayanti and Maharana Pratap processions — did not invoke any interest or intervention from Mayawati. Some of the vocal Dalit leaders have migrated to the BJP for greener pastures. BJP leaders of the area unabashedly use the police to their advantage. It is a breakaway not just from their elected leadership; the parting of ways is also from the practitioners of the Hindu religion who have not accepted them as equal. In the Modi regime Saharanpur witnessed the third eruption of Dalit rage after Hyderabad, where the Rohith Vemula suicide had attracted national attention, and Una (Gujarat), where the thrashing of Dalit youths had culminated in a joint procession with Muslims.

The BJP’s not-so-hidden peddling of the RSS’ Hindutva agenda, an open play of majoritarian politics and continuing attacks on Muslims by the self-styled gau-rakshak, mostly in the BJP-ruled states of Uttar Pradesh, Rajasthan and Haryana, have combined to create a sense of fear and discrimination among Muslims. Dalits are reaching out to Muslims for mutual support and solidarity. The Bhim Army has made its intentions very clear. Apart from Muslims, it is seeking cooperation from the Yadavs, Valmikis and other OBCs. A sense of deprivation and discrimination binds them and in the upper-caste led BJP they see a common adversary.

America’s Reign of Terror

by John W. Whitehead, 

“The means of defense against foreign danger have been always the instruments of tyranny at home.” ~ James Madison

Who designed the malware worm that is now wreaking havoc on tens of thousands of computers internationally by hackers demanding a king’s ransom? The U.S. government.

Who is the biggest black market buyer and stockpiler of cyberweapons (weaponized malware that can be used to hack into computer systems, spy on citizens, and destabilize vast computer networks)? The US government.

What country has one the deadliest arsenals of weapons of mass destruction? The US government.

Who is the largest weapons manufacturer and exporter in the world, such that they are literally arming the world? The US government.

Which is the only country to ever use a nuclear weapon in wartime? The United States.

How did Saddam Hussein build Iraq’s massive arsenal of tanks, planes, missiles, and chemical weapons during the 1980s? With help from the US government.

Who gave Osama bin Laden and al-Qaida “access to a fortune in covert funding and top-level combat weaponry”? The US government.

What country has a pattern and practice of entrapment that involves targeting vulnerable individuals, feeding them with the propaganda, know-how and weapons intended to turn them into terrorists, and then arresting them as part of an elaborately orchestrated counterterrorism sting? The US government.

Where did ISIS get many of their deadliest weapons, including assault rifles and tanks to antimissile defenses? From the US government.

Which country has a history of secretly testing out dangerous weapons and technologies on its own citizens? The US government.

Are you getting the picture yet?

The US government isn’t protecting us from terrorism.

The US government is creating the terror. It is, in fact, the source of the terror.

Just think about it for a minute: almost every tyranny being perpetrated against the citizenry – purportedly to keep us safe and the nation secure – has come about as a result of some threat manufactured in one way or another by our own government.

Cyberwarfare. Terrorism.

Biochemical attacks. The nuclear arms race.

Surveillance. The drug wars.

In almost every instance, the US government has in its typical Machiavellian fashion sown the seeds of terror domestically and internationally in order to expand its own totalitarian powers.

It’s time to wake up and stop being deceived by government propaganda.

We’re not dealing with a government that exists to serve its people, protect their liberties and ensure their happiness. Rather, these are the diabolical machinations of a make-works program carried out on an epic scale whose only purpose is to keep the powers-that-be permanently (and profitably) employed.

Case in point: For years now, the US government has been creating what one intelligence insider referred to as a cyber-army capable of offensive attacks.

As Reuters reported back in 2013:

Even as the US government confronts rival powers over widespread Internet espionage, it has become the biggest buyer in a burgeoning gray market where hackers and security firms sell tools for breaking into computers. The strategy is spurring concern in the technology industry and intelligence community that Washington is in effect encouraging hacking and failing to disclose to software companies and customers the vulnerabilities exploited by the purchased hacks. That’s because US intelligence and military agencies aren’t buying the tools primarily to fend off attacks. Rather, they are using the tools to infiltrate computer networks overseas, leaving behind spy programs and cyber-weapons that can disrupt data or damage systems.

As part of this cyberweapons programs, government agencies such as the NSA have been stockpiling all kinds of nasty malware, viruses and hacking tools that can “steal financial account passwords, turn an iPhone into a listening device, or, in the case of Stuxnet, sabotage a nuclear facility.”

And now we learn that the NSA is responsible for the latest threat posed by the “WannaCry” or “Wanna Decryptor” malware worm which – as a result of hackers accessing the government’s arsenal – has hijacked more than 57,000 computers and crippled health care, communications infrastructure, logistics, and government entities in more than 70 countries already.

All the while the government was repeatedly warned about the dangers of using criminal tactics to wage its own cyberwars.

It was warned about the consequences of blowback should its cyberweapons get into the wrong hands.

The government chose to ignore the warnings.

That’s exactly how the 9/11 attacks unfolded.

First, the government helped to create the menace that was al-Qaida and then, when bin Laden had left the nation reeling in shock (despite countless warnings that fell on tone-deaf ears), it demanded – and was given – immense new powers in the form of the USA Patriot Act in order to fight the very danger it had created.

This has become the shadow government’s modus operandi regardless of which party controls the White House: the government creates a menace – knowing full well the ramifications such a danger might pose to the public – then without ever owning up to the part it played in unleashing that particular menace on an unsuspecting populace, it demands additional powers in order to protect “we the people” from the threat.

Yet the powers-that-be don’t really want us to feel safe.

They want us cowering and afraid and willing to relinquish every last one of our freedoms in exchange for their phantom promises of security.

As a result, it’s the American people who pay the price for the government’s insatiable greed and quest for power.

We’re the ones to suffer the blowback.

Blowback: a term originating from within the American Intelligence community, denoting the unintended consequences, unwanted side-effects, or suffered repercussions of a covert operation that fall back on those responsible for the aforementioned operations.

As historian Chalmers Johnson explains, “blowback is another way of saying that a nation reaps what it sows.”

Unfortunately, “we the people” are the ones who keep reaping what the government sows.

We’re the ones who suffer every time, directly and indirectly, from the blowback.

We’re made to pay trillions of dollars in blood money to a military industrial complex that kills without conscience. We’ve been saddled with a crumbling infrastructure, impoverished cities and a faltering economy while our tax dollars are squandered on lavish military installations and used to prop up foreign economies. We’ve been stripped of our freedoms. We’re treated like suspects and enemy combatants. We’re spied on by government agents: our communications read, our movements tracked, our faces mapped, our biometrics entered into a government database. We’re terrorized by militarized police who roam our communities and SWAT teams that break into our homes. We’re subjected to invasive patdowns in airports, roadside strip searches and cavity probes, forced blood draws.

This is how tyranny rises and freedom falls.

We can persuade ourselves that life is still good, that America is still beautiful, and that “we the people” are still free.

However, as I make clear in my book Battlefield America: The War on the American People, the moment you tune out the carefully constructed distractions – the year-round sports entertainment, the political theatrics, the military’s war cries, the president’s chest-thumping, and the techno-gadgets and social media that keep us oblivious to what’s really going on in the world around us – you quickly find that the only credible threat to our safety and national security is in fact the government itself.

As science fiction writer Philip K. Dick warned, “Don’t believe what you see; it’s an enthralling – [and] destructive, evil snare. Under it is a totally different world, even placed differently along the linear axis.”

In other words, all is not as it seems.

The powers-that-be are not acting in our best interests.

“We the people” are not free.

The government is not our friend.

And America will never be safe or secure as long as our government continues to pillage and plunder and bomb and bulldoze and kill and create instability and fund insurgencies and police the globe.

So what can we do to stop the blowback, liberate the country from the ironclad grip of the military industrial complex, and get back to a point where freedom actually means something?

For starters, get your priorities in order. As long as Americans are more inclined to be offended over the fate of a Confederate statue rather than the government’s blatant disregard for the Constitution and human rights, then the status quo will remain.

Stop playing politics with your principles. As long as Americans persist in thinking like Republicans and Democrats – refusing to recognize that every administration in recent years has embraced and advanced the government’s authoritarian tactics – then the status quo will remain.

Value all human life as worthy of protection. As long as Americans, including those who claim to value the sanctity of human life, not only turn a blind eye to the government’s indiscriminate killings of innocent civilians but champion them, then the status quo will remain.

Recognize that in the eyes of the government, we’re all expendable. As long as we allow the government to play this dangerous game in which “we the people” are little more than pawns to be used, abused, easily manipulated and just as easily discarded – whether it’s under the guise of national security, the war on terror, the war on drugs, or any other manufactured bogeyman it can dream up – then the status quo will remain.

Demand that the government stop creating, stockpiling and deploying weapons of mass destruction: nuclear, chemical, biological, cyber, etc. As long as the government continues to use our tax dollars to create, stockpile and deploy weapons of mass destruction – whether those weapons are meant to kill, maim or disable (as in the case of the WannaCry computer virus) – we will be vulnerable to anyone who attempts to use those weapons against us and the status quo will remain.

Finally, stop supporting the war machine and, as Chalmers Johnson suggests, “bring our rampant militarism under control”:

From George Washington’s “farewell address” to Dwight Eisenhower’s invention of the phrase “military-industrial complex,” American leaders have warned about the dangers of a bloated, permanent, expensive military establishment that has lost its relationship to the country because service in it is no longer an obligation of citizenship. Our military operates the biggest arms sales operation on earth; it rapes girls, women and schoolchildren in Okinawa; it cuts ski-lift cables in Italy, killing twenty vacationers, and dismisses what its insubordinate pilots have done as a “training accident”; it allows its nuclear attack submarines to be used for joy rides for wealthy civilian supporters and then covers up the negligence that caused the sinking of a Japanese high school training ship; it propagandizes the nation with Hollywood films glorifying military service (Pearl Harbor); and it manipulates the political process to get more carrier task forces, antimissile missiles, nuclear weapons, stealth bombers and other expensive gadgets for which we have no conceivable use. Two of the most influential federal institutions are not in Washington but on the south side of the Potomac River–the Defense Department and the Central Intelligence Agency. Given their influence today, one must conclude that the government outlined in the Constitution of 1787 no longer bears much relationship to the government that actually rules from Washington. Until that is corrected, we should probably stop talking about “democracy” and “human rights.”

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His new book is Battlefield America: The War on the American People (SelectBooks, 2015). Whitehead can be contacted at johnw@rutherford.org.

World Health Assembly: Pakistan presented as a model to countries

By Our Corresopndent

ISLAMABAD: 

Pakistan was presented on Saturday as a model to countries attending the World Health Assembly as it became the first nation to conduct joint external evaluation of core capacities to respond to disease outbreaks and the level of preparedness to deal with pandemics.

The recognition came at a special session on International Health Regulations at the World Health Assembly in Geneva. Delegates of 59 countries attended the session which was chaired by Finland and Australia.

Federal Minister for National Health Services Saira Afzal Tarar told the delegations that Pakistan was ready to share its experiences with any country desirous of strengthening their core capacities as part of the global health security agenda.

US lawmaker assures help for Pakistan in eradicating polio

The minister, who is leading the Pakistani delegation, added, “Transparency has been the hallmark of health reforms in the country which has been recognised at this prestigious global forum.”

Pakistan had initiated the exercise in early 2016 across the country with a team of international public health experts and completed it late last year. Eight different core capacities were evaluated in the year long process. Pakistan’ Director General Health Dr Assad Hafeez presented the process to the delegates.

Meanwhile, Tarar told the WHO’s health minister for the Eastern Mediterranean region, that unprecedented progress has been made in stopping transmission of the polio virus, with the lowest ever case count of 20 on 2016 and two so far this year.

Health minister visits slums to monitor ongoing campaign

She said Pakistan was carrying out the surveillance for polio aggressively and has established 53 environmental sampling sites which is the largest surveillance network in the world.

The minister, while expressing her resolve, said, “Our Prime Minister is leading the effort and there is the strongest of political commitment to the cause. These are our children and we will leave no stone unturned to protect them from this crippling disease”.

The minister also spoke about the sustainable development goals and progress made by Pakistan in developing the 5 year coasted National Action Plan as part of Global Health Security Agenda and International Health Regulations.

Pakistan’s track record of dealing effectively with manmade and natural disasters was also shared by the minister.

Yadav and the ICJ

Imaan Mazari Hazir

“A lie gets halfway around the world before the truth has a chance to put its shoes on”. The saying goes something like that – though different versions are attributed to different people.

Information, for better or for worse, has an inherent capacity to be taken out of context and moulded to fit whatever paradigm a state is trying to develop. Pakistan, due to its limited understanding and capacity with regard to international law, is often unable to comprehend the significance of such information in the international sphere. India, however, has been building its legal capacity to utilise international law to its strategic advantage. The Indian spin on the International Court of Justice (ICJ)’s “pre-provisional” measure illustrates exactly that.

India and Pakistan find themselves embroiled in some form of hostility or conflict quite often. Perhaps, this is why both states have intentionally ousted the ICJ’s jurisdiction with regard to the contentious cases between themselves or other members of the Commonwealth. This is the effect of Pakistan and India’s declarations under Article 36(2) of the ICJ statute. It is because of this exclusion of the ICJ’s jurisdiction in contentious cases that India has taken the Article 36(1) route.

Both India and Pakistan are states parties to the Optional Protocol of the Vienna Convention on Consular Relations 1963. Article I of this protocol stipulates that: “disputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the court by an application made by any party to the dispute being a party to the present protocol”. It is under this provision that India has invoked the jurisdiction of the ICJ with regard to Kulbhushan Yadav’s case.

Accordingly, Article 36(1) of the ICJ statute clearly states that: “the jurisdiction of the court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force”. At this stage, it would be premature and rather irresponsible to claim that the court will most certainly assume jurisdiction. This is particularly important considering India’s claims that it has “won” against Pakistan, presenting some sort of illusion that it has argued at a stage of proceedings.

In reality, only a generic, routine statement has been issued by the president of the ICJ. If one is to review the case law in this regard, it becomes clear that the statement issued by the president of the court is not a stay order but a request to maintain the status quo. This request has not only been directed at Pakistan but also at India. It is a mere statement to the effect that both parties maintain the status quo – nothing more and nothing less.

The assumption of jurisdiction by the ICJ has yet to be seen. Once an application is filed, there is a customary “oral hearing” – in fact, there may be a single or multiple hearings depending on each state’s legal strategy. This oral hearing is awaited and, in the absence of the notice and appearance of both parties for the oral hearing, there is no provisional measure that can be granted. Pakistan has only recently received notice. Therefore, to state that provisional measures have already been granted is entirely baseless and factually incorrect.

In the event that the ICJ does assume jurisdiction – which is not entirely unlikely considering precedent in this area – this may not be as awful for Pakistan as the Indian media would have us believe. The fact is that Yadav confessed to not only sabotage but much more than that. He was tried and convicted in accordance with domestic law and his sentence is a culmination of those lawful proceedings. Pakistan’s case against Yadav has more merit than India’s case in this regard. Having said that, regardless of the outcome – or whatever fears we may have in appearing before the ICJ – it cannot be emphasised enough that Pakistan must fully participate at all stages of the proceedings.

What many are neglecting is the fact that Pakistan and India have, between themselves, the Bilateral Agreement of 2008. Clause VI of this agreement clearly provides for the denial of consular access and assistance in cases where national security is concerned. It can be argued that India has voluntarily, through a bilateral agreement with Pakistan, committed itself to the provisions contained within the 2008 agreement. As per the international legal principle of pacta sunt servanda, India must honour and keep its agreements. The fact that Yadav was not an ordinary Indian citizen or an ordinary Indian diplomat is key in Pakistan’s arguments before the court. That is the crux of our national interest ground and must be maintained throughout.

In any case, even if the case proceeds and a judgment is secured against Pakistan, we should be aware of existing precedent before the ICJ and how various states have reacted in the event that provisional measures have been issued by the court and those states have refused to comply with them by citing domestic law as a justification.

The LaGrand case, a case between Germany and the US which was brought before the court, concerned temporary court orders of the ICJ by which the court directed the US to halt the execution of two German nationals – the LaGrand brothers – who had attempted an armed bank robbery in Arizona. The US executed both brothers in spite of the fact that the ICJ had issued provisional measures, which it deemed to be binding. The argument put forward by the US was that the Vienna Convention 1963 does not grant rights to individuals. Instead, it accords these rights to states. In this regard, Pakistan too can argue that the ICJ cannot be turned into a court of criminal appeal – particularly where matters of sovereignty and national security are concerned.

Why consular access was denied to Kulbhushan Jadhav

By Jahanzaib Durrani

The case of Kulbhushan Jadhav, in some respects, bears a striking resemblance to Soviet spy William Fisher, aka Rudolf Abel, one of the most well-known Soviet spies of all time. Abel, like Kulbhushan, was an intelligence colonel of the KGB. In 1948, he slipped into the United States illegally via Canada and lived there for nine years as a photographer and painter. He was tasked to transmit the US atomic secrets to the USSR. To his surprise, he was arrested in 1957 and was sentenced to 30 years in prison. However, in 1962, just after four years of his detention, he was released to the Soviet Union in exchange for captured US pilot Francis Gary Powers.

In recent history both Kulbhushan and Abel were possibly the highest-ranking spies to face espionage charges. However, unlike Abel, Kulbhushan’s active participation in some of the deadliest attacks and terror networks in Pakistan gives him a unique position in the long list of captured spies. An overview of the charge sheet against Kulbhushan lists some of the following activities: massive terrorist activities in the country; sponsoring attacks on Hazaras; the explosion of gas pipelines; funding of Baloch separatists and miscreants through hawala/hundi; subverting the local youth of Balochistan against the state of Pakistan; planning to sabotage CPEC, etc.

A few days ago, Adviser to the Prime Minister on Foreign Affairs Sartaj Aziz provided a timeline of the trial and proceedings against Jadhav. In response, Indian officials resorted to jingoistic statements merely adding fuel to the fire. New Delhi has consistently been protesting in the international media that it had sought consular access to Jadhav 13 times, but was refused each time, counting it as an affront to justice.

Let us examine the reasons for denying consular access to Kulbhushan Jadhav. The issue comes under the purview of national law and as well as international law. Pakistan is a dualist state, ie, for international treaties signed by Pakistan to be binding on local courts; implementing legislation is required domestically through the federal legislature. From the perspective of national law, the process is considered the ratification of treaties signed earlier. Interestingly, Article 36 of the Vienna Convention on Consular Relations (VCCR) 1963, which “affords an individually enforceable right to consular access upon arrest or detention in a foreign country,” has not been transposed into domestic law by Pakistan in the Diplomatic and Consular Privileges Act of 1972. This single piece of legislation that solely talks about the ‘consular right and privileges’ are empty of any binding content purporting to provide consular access to foreign nationals arrested or detained on criminal or immigration charges. Thus Pakistan was not obligated to provide Kulbhushan Jadhav consular access as per our domestic law.

Furthermore, Article 36 of the Vienna Convention does not create a binding obligation on a state for providing consular access to foreign nationals arrested on criminal charges. In fact, the following para of the said Convention, Article 36 (2) makes it abundantly clear that this right “shall be exercised in conformity with the laws and regulations of the receiving State.”

Aziz shares charge sheet against Jadhav

Therefore, Pakistan has acted within the corners of its legal ambit by not providing consular access to Kulbhushan Jadhav. Had he been granted consular access it, would have been considered an ultra vires.

Furthermore, espionage is seen as inconsistent with international law since it constitutes an aggressive act against the territorial integrity of another state. Article 2(4) of the UN charter makes it very clear: “All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” On this subject, Quincy Wright, famous for his pioneering work and expertise in international law, says, “In time of peace […] espionage and, in fact, any penetration of the territory of a state by agents of another state in violation of the local law, is also a violation of the rule of international law imposing a duty upon states to respect the territorial integrity and political independence of other states”.

In view of consular access issues in the past, Pakistan and India signed a treaty on consular access to prisoners, “Pakistan-India Agreement On Consular Access, 21 May 2008”. In that treaty, both the states had agreed upon that the right of consular access should be subject to discretion in situations where the arrest was made on political or security grounds. Article 6 of that agreement unequivocally states, “In cases of arrest, detention or sentence, made on political or security grounds each side may examine any such case on its merit.” The agreement was signed between the two sovereign states and creates a binding obligation upon them to respect and comply with the agreed policy under the Vienna Convention on the Law of Treaties, 1969. India seems to want to get out of an international agreement, which is entered into with open eyes, merely because it doesn’t suit them anymore.

Also, India has been excessively relying on the VCCR 1963 in Kulbhushan’s case. However, it fails to acknowledge that Article 73 of the same Convention states, (1) The provisions of the present Convention shall not affect other international agreements in force as between States Parties to them. (2) Nothing in the present Convention shall preclude States from concluding international agreements confirming or supplementing or extending or amplifying the provisions thereof.

So concluded bilateral treaties on this subject like the one Pakistan have with India is perfectly legal and would supersede anything contained in the VCCR.

Hence, keeping in view the charge sheet against Kulbhushan Jadhav, his case provides serious grounds of public policy and public security as he had been accused of a string of terrorism offences. As a result of which, consular access has been rightly denied to Jadhav as per the terms of the 2008 treaty.

India perplexed over spy’s death sentence

Let there be no doubt that Kulbhushan had committed an international wrong for which, subject to evidence, India as a state will bear responsibility under international law. That is because Jadhav’s actions cannot be attributed to ‘lone wolf’ terrorism. According to his own confessional statements, he was an agent (a state-actor), employed by an entity of India ie The Research and Analysis Wing (RAW), deputed in Chabahar, Iran, and was tasked to carry out espionage activities at the behest of RAW. Hence, a plausible case could be made against the state of India. In this regard, reliance should be placed on legally binding instruments such as Draft Articles on State Responsibility and United Nation General Assembly Resolutions 56/83 and 60/147 that are very clear that a breach of international law by a State entails its international responsibility.

Pakistan should forcefully argue its case at all international forums and employ a method to unveil India’s false, baseless and spurious propaganda against the state of Pakistan.

ICJ’s limited jurisdiction

SIKANDER AHMED SHAH | ABID RIZVI

India has approached the International Court of Justice seeking to stay the execution of Kulbhushan Jadhav. India has raised its claims before the court under Article 36 of the Vienna Convention on Consular Relations, which grants the right of consular access to a foreign national “who is in prison, custody or detention” and the optional protocol to the VCCR, which establishes the ICJ as the venue for resolving disputes under the VCCR. To raise its claims, India has relied upon the court’s compromissory jurisdiction under Article 36(1) of the statute of the ICJ which allows the latter to exercise its jurisdiction on the basis of a ‘special agreement’ — in this case the optional protocol.

The court’s jurisdiction in such cases is, however, limited solely to the interpretation or application of the special agreement. The court cannot decide on matters beyond the scope of the concerned treaty, and as Article 36 of the VCCR only deals with communication and contact with nationals of the sending state it does not impact convictions for espionage under domestic or international law at all. Further, Pakistan is a dualist state, wherein any international treaty signed can only be given effect domestically once it has been codified in the corpus of domestic laws through implementing legislation. Consular access has not been a right explicitly guaranteed under the Diplomatic and Consular Privileges Act, 1972.

Further, India’s claims rely upon a peacetime conception of international law, wherein consular officials are guaranteed access to “nationals of the sending state” tried or convicted of ordinary criminal offences. In Jadhav’s case, however, this legal framework seems inapplicable — as a spy he engaged in activities including fomenting insurgency and attempting to destabilise southwestern Pakistan. His activities would fall within the purview of International Humanitarian Law, the lex specialis or specific law governing the conduct of hostilities between nations.

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Pakistan is well within its rights to try and sentence Jadhav under its domestic laws for espionage.

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The Geneva Conventions provide much of the substance of IHL. Within this framework the Geneva Convention IV of 1949 is of particular significance, and relates to the treatment of non-combatants in times of hostilities. As per Article 5 thereof, when such a non-combatant is detained as a spy he forfeits his rights of communication under the convention. While such a person must, as per Article 5, be treated with humanity and has the right to a fair trial, there is nothing under IHL which prevents an individual from being sentenced to death for espionage.

IHL also draws a clear distinction between those engaged in hostilities and those engaged in espionage. This principle is enshrined in Additional Protocol I (AP I) to the Geneva Conventions, reflecting a long-established principle of international law present in earlier international legal instruments. Combatants who adhere to IHL principles are, if captured, immune from prosecution for acts committed while engaging in hostilities. This, however, does not apply to those engaged in espionage: as per Article 46(1) of AP I any member of the armed forces of a party to the conflict who falls into the power of the other party while engaging in espionage shall not have the right to the status of prisoner of war and may be treated as a spy. Instead, the requirements under Article 75 of AP I are for humane treatment and a fair trial. In this light, therefore, Pakistan is well within its rights to try and sentence Jadhav under its domestic laws for committing espionage.

While Jadhav’s activities were hostile acts, inimical to Pakistan’s national security and stability, even if one were to assume that the peacetime regime of international law applied, India’s claims before the ICJ would remain problematic. India’s declaration to the compulsory jurisdiction of the ICJ under Article 36(2) of the ICJ statute ousts the jurisdiction of the court on matters relating to actions taken in self-defence or in resistance to aggression.

As per the well-established international law principle of reciprocity, the caveats India incorporated into its own declaration are also exercisable by Pakistan. The court will thus have to determine whether exercising compromissory jurisdiction would result in a de facto exercise of compulsory jurisdiction in areas over which it lacks jurisdiction. The dispute revolves around the actions of Jadhav, an individual tried and sentenced by a competent court as a spy and saboteur, and thus necessarily falls within the purview of “actions taken in self-defence or in resistance to aggression”.

Furthermore, even if the court decides that it has jurisdiction in this case it is highly unlikely it will establish admissibility as all local remedies have not yet been exhausted; even if the case reaches the merits — and India is successful — a determination of a violation of consular access still has no bearing on the illegality of Jadhav’s actions or the nature of his awarded punishment as such are beyond the scope of the VCCR.

Jadhav’s situation, while peculiar, is not entirely without precedent. In Medellin v. Texas the accused was a Mexican national tried and sentenced to death by the courts of Texas, despite Mexico being denied consular access to him. Following his appeal, the US Supreme Court — upholding Medellin’s sentence — held that even if a treaty constitutes an international obligation it is not binding under domestic law unless the treaty is self-executing or the legislature enacts the necessary implementing legislation.

The court also held that the ICJ’s decisions were nonbinding under domestic law and that, without authority from the legislature or the constitution, the head of state could not unilaterally enforce international treaties or ICJ decisions. While proceedings were under way before US domestic courts, Mexico moved the ICJ on much the same grounds as India has —ie denial of consular access to the accused. And while the ICJ finally held in favour of Mexico, the courts of the US nonetheless asserted the supremacy of domestic law over the pronouncements of the ICJ and the VCCR.

Sikander Ahmed Shah is former legal adviser, Ministry of Foreign Affairs, and law faculty at Lums. Abid Rizvi is an expert on international law.