ICJ: From urgency to merit

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By Brig (R) Samson Simon Sharaf


The writer is a political economist and a television anchorperson. He can be contacted at samson.sharaf@gmail.com


The case of Kulbushan Yadav on India’s counsellor access is likely to drag on for a considerable length of time.
India has some very serious stakes in the issue and will go to any extent to create a counter narrative.
The villains in this counter narrative being discussed in the Indian media are Pakistan Army and intelligence agencies.
India chooses to ignore that one Indian national, Mubarik Patel was apprehended by Pakistan’s law enforcers.
He was in Pakistan on a duplicate passport and only after apprehension revealed his true identity.
Pakistan should refer to him as Mubarik Patel and not Kulbushan Yadav.

In hindsight and prevailing environments, it was unwise for Pakistan to announce the verdict in haste and provide India an opportunity to take the case to ICJ.
This could have been delayed after other pressing issues were sorted out.
India, served by a very professional decision making structure had the edge to seize the haste.
India’s first move of urgency was premised on the Vienna Convention.
ICJ has asked Pakistan to delay the execution till the case of India’s prayers is decided.

On Pakistan’s part, Patel’s case, notwithstanding its merit has been dampened by negligent omissions and thoughtless commissions more so when the verdict of the FGCM is yet to pass through a series of appeals based on law and clemency.
Maybe the haste relates to the imaging of the armed forces under constant attrition by the federal government.
At the end of the day, Pakistan and its legal team failed its arguments against urgency.
If lack of preparedness is to be blamed then what stopped Pakistan from seeking more time?

It now becomes clearer that many issues related to Pakistan’s security are being impacted negatively in succession.
These coincided with the change of the military command structure.
Command changes if well timed, do not affect military professionalism.
The COAS is still trying to grow out of the political overhang as implied in a seminar yesterday.
Military thrives on traditions and spirit de corps and least on public relations.
It appears that those who mattered exploited the moments in self-interests.
This is a clear reference to Nawaz Sharif’s commitments towards a friendlier India and taming the armed forces.
This does not auger well neither for the cause of the country against terrorism, nor the image of Pakistan Army.
The Army and COAS need to distance themselves and restore the image of military corporatism and professional exclusivity.
Be cautioned, that in the merit stage of the ICJ case, Pakistan Army will be the target.
If India manages to secure an injunction in its favour, imagine the damage it could cause to the armed forces.

Had the sentence of FGCM been life imprisonment, India’s reaction would have been different.
They would not have gone to the ICJ.
Here is the reason.
India fears that Patel or his family in the series of appeals could appeal for clemency.
Patel has been singing loudly and India fears the worst.
This means admissions in clemency spreading terrorism inside Pakistan through RAW.
It also does not auger well for the motivation and morale of its agents in Pakistan.
India is desperate to pre-empt before the beans are spilled.
A lot depends from this point, on how Pakistan handles the case politically and legally.
Pakistan’s government and legal experts must accurately read the Indian mind and frame a solid response.
In subsequent hearings related to the merit of the appeal, the outcome depends on how the two sides argue their case and how Pakistan proves criminality.

If one reads through the Indian accession to compulsory jurisdiction of ICJ signed on September 18 1974, the limitations (apparently Pakistan and Kashmir specific) preclude any international intervention under Article 36 (1).
This is why ICJ was quick to reject Pakistan’s case of Atlantique Aircraft shot down by India and why ICJ will continue to reject cases by Pakistan in future.
Pakistan could have overcome this by registering the 2008 Bilateral Treaty with India but that would have impacted UN Resolutions on Kashmir.
Nonetheless, hereon, it is an opportunity provided by ICJ to accept this case under Article 36 (2).

For future, Pakistan could bypass limitations and build its cases around other international treaties.

India, in its appeal, based its case on the violation of the Vienna Convention on Consular Relation of 1963 (VCCR) through Article 36(1) and not 36(2) of ICJ.
Cognisant that ICJ is not a Criminal Appellate Court, India’s case is not about innocence but its accusation that Pakistan denied it consular access.
It cannot move beyond that.
ICJ in its judgment referred to a letter by Pakistan to India linking consular access on cooperation.
This information was not seen by ICJ in the contextual sense of criminality and espionage.
Rather it inferred a blackmailing suggestion by Pakistan.
As the case proceeds, Pakistan’s letter (however unnecessary) will provide grounds for good arguments.
At the merit stage, when issues move to criminality, India’s prayers could become weaker or irrelevant.

Despite timely commentaries on the case by Research Society of International Law, Pakistan, Pakistan’s legal team was not sufficiently prepared to parry assertions by India.
Thus the question of an apparent disconnect in Pakistan’s legal circles based on likes and dislikes? Linked with the Civil-Military disconnect, this is a very sorry state of affairs.
The fact that the foreign minister (read prime minister) and his front man on foreign policy were abroad, no adhoc judge was appointed to the ICJ and good legal inputs were rejected, explain the non-seriousness of the government; in this case, inaction and negligence tantamount to treachery.

Pakistan had invoked unconditional compulsory jurisdiction in 1960 and revised it with Limitations on 29 March 2017.
As it turned out, this was not the legal defence to pre-empt admissibility of an Indian appeal in the case.
Indian legal manoeuvre based on Article 36(1) and Vienna Convention outflanked Pakistan argument built around Article 36 (2), just enough to move the case to merit stage.
How Pakistan proceeds from here depends on how it puts its house in order.
It is to Pakistan’s advantage that it holds all the cards including the convict.
ICJ is not binding and Pakistan can act to the contrary.
It has many more options only if the heads that matter start scratching them.

But the most crucial questions still remain unanswered.
Will the prime minister and his team move assertively against India? Or will he continue his brinkmanship with the armed forces to prove to the world that he is the man in control? Everything seems a repetition of 1999 with the exception of COAS who wants democracy to strengthen.
But then this may just be a voice in the wilderness.
Munitions of anarchy could gear up.

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