In search of legal excuse | Pakistan Today

In search of legal excuse

  • The case of Kulbushan Jadhav

By: Muhammad Sohail Ahmed

A serving officer of the Indian Navy was caught in Balouchistan in April 2017 while actively involved in creating unrest in the region. On the one hand this assured the common citizen that our agencies were keeping their eyes and ears open to thwart efforts to destabilize Pakistan, on the other our enemy continued to expose itself through reckless and unprecedented deeds of acrimony. It can also be judged from the statement of Indian Prime Minister Narendra Modi who accepted his direct participation in Jan Sangh to create Mukti Bahini which played a heinous role in the dismemberment of Pakistan in 1971.

The interesting aspect of Commander Kulbhushan Jadhav’sarrest is that it unfolded the Indian strategy to establish its footprint in the Iranian port of Chahbahar with the purpose of creating 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 the China-Pakistan Economic Corridor.

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

In order to disrupt the Pak-China route, the Indian spymaster obtained a fake Iranian passport with a fake name of Mubarak Patel and disguised himself as a businessman. His mission was to create unrest in Baluchistan, through establishing illegal training camps, funding separatist elements and organizing 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 Pakistan presented the dossier of the spy.

The next step was to approach the International Court of Justice. Normally such a case is not taken up at these forums, being an open and shut case. However, giving it the aspect of a legal dispute is a futile effort to mitigate the adverse diplomatic and national embarrassment. The ICJ is governed by International Law. This term was first used by eminent British Jurist, Jeremy Bentham, in 1780. Since then these words have been used to donate the body of rules which regulate the relations among the states. Oppenheim stated “Law of Nations 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 World War II, International law included 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 ICJ.

The first prerequisite is that both parties should agree to refer the case to the ICJ. Pakistan could have decided to refuse to take the matter in ICJ, however it decided to present its case in response to the Indian plea. They pleaded that consular access was denied as per Clause 36 of the Vienna convention. This plea has some flaws such as the provision is for looking after the health and prison conditions of the detainee. The circumstantial evidence is that Commander Jhadav 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 consular access is not defined. Since access has been provided. And the individual is fine, the purpose of the clause has been fulfilled. As a defending officer is provided in a court-martial who can record irregularities, if any.

However, in its wisdom, the ICJ has ruled that such access is to be granted. This it did in its order passed on Wednesday.

Indian efforts to get a concession on commander Jhadav took a new turn soon after the Pulwama attacks. Air operations, an Indian submarine detected on our coast, firing on the Line of Control, are the efforts to intimidate Pakistan and demand concessions such as a reduction in the sentence announced to the 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 the Foreign Office, the 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 the ICJ.

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 the ICJ as the 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 the Pakistan Navy, and can be reached at [email protected]



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