India has claimed to go to the ICJ for Yadev’s case. Really. Can it?
Article 363) 1) of the Vienna Convention to which both India and Pakistan have acceded states, “(a) consular officers can freely communicate with nationals of the state where the individual has been detained; (b) upon request of the detainee, the detaining state must immediately inform the consular post of the detainee’s state and (c) consular officers can visit the detained individual and arrange for legal representation.
Whereas Pakistan fulfilled the requirements under sub clause (a) and (b) India may contest lack of consular access to the spy as a reason to ask ICJ to step in. Let it be borne in mind that any individual accused of serious charges against another state due to the nature of espionage, terrorism and the like needs to be weighed carefully in context of reasons for consular access as provided under international law. The international law expected to be exercised is so done in line of domestic corresponding Acts. In Pakistan’s case Security of Pakistan Act 2014 and Anti-Terrorism Act of Pakistan 1997.
The UN cannot automatically via ICJ assume jurisdiction over the cases of dispute between two nations by virtue of their being member states. India revoked the declaration of 1959 substituting it with another one in 1974 duly ratified by the Indian Parliament. It lays down a set of acts which are exempt from the ICJ jurisdiction. An excerpt, “disputes with the government of any State which is or has been a Member of the Commonwealth of Nations”, and “disputes relating to or connected with facts or situations of hostilities, armed conflicts, individual or collective actions taken in self-defense…” Let India remember Pakistan is a member of Commonwealth of Nations. She was suspended for five years and the membership was restored in May 2008.
Any case to be taken to ICJ also needs both states to agree to the forum jurisdiction.
Let us hypothetically assume that India does take the case to ICJ violating her own law- what may happen? First, India will be violating her own law and ICJ will be cornered to turn down the request. A local Pakistani newspaper has already stated ‘United Nations declined to take a position on the death sentence of the self-confessed Indian Spy.’ (April 13, 2017)
Second, hypothetically speaking, ICJ overrides the legal aspects (which it will not be willing to do) it can lead to opening a can of worms. Pakistan will push for ICJ to adjucate on many issues between both states like India Held Kashmir, water disputes, consistent violation of LoC by India and others.
Interestingly, by demanding ICJ to help the self-confessed spy get out of the exposure his arrest had led India into- India is contradicting her own stance that has been persistent; of settling outstanding issues with Pakistan bilaterally.
The facts in Yadev’s case under multiple news reports are:
- Kulbhushan Yadav was arrested from Baluchistan in early 2016.
- He originates from Mumbai. His registered passport is by the name of Hussain Mubarak Patel- number L9630722
- His birth date on the said passport is April 16, 1970
- His residential address is said to be No 502B Silver Oak, Powai, Hiranandani Gardens.
- His passport bears an Iranian visa. Making an entry in Pakistan via Baluchistan reportedly.
- Reports state that he had joined RAW in 2013.
- Yadev has reportedly confessed to having links with the militants from Baluchistan including Haji Baloch. As per his confession, Haji Baloch support of multidimensional nature was provided to militant outfits by him including both logistics and financial nature.
“Baloch Leader Bramdegh Buti, currently exiled in Sweden, is set to get Indian citizenship after long negotiations with Indian authorities. India will also give citizenship to his key lieutenants in Switzerland and trusted aides including Sher Mohammad Bugti and Azizullah Bugti.” (The Economic Times India Sept. 16, 2016) “Christine Fair of RAND Corporation said, “Having visited the Indian mission in Zahedan, Iran, I can assure you they are not issuing visas as the main activity. Indian officials have told me privately that they are pumping money into Balochistan.” (The Hindu July 28, 2009) “India confirmed the presence of Baloch activist Balaach Pardili in New Delhi. Vikas Swarup, official spokesperson of the Ministry of External Affairs, said the presence of the Baloch representative proves again that “India has always been home to the persecuted people from all over the world.” Meanwhile, Pakistan said the presence of Pardili in Delhi proves India is fomenting trouble in Balochistan.” (Express Tribune, Oct. 9, 2015)
- Yadev in his reported confession also admitted that in Karachi, sectarian violence was stroked by the terrorists. Many meeting having creating unrest in Karachi as the agenda had taken place.
- Reportedly Kulbhushan Yadav a serving Indian Naval officer was recruited by RAW to create sectarian violence and terrorist attacks in city of Karachi.
“Pakistan claimed that the man was running a terrorist financing and training network and used to operate from Chabahar in Iran, Makran in Pakistan and adjoining districts of Afghanistan. The cover story of running cargo business in Iran’s Bandar-Abbas and Chabahar ports makes perfect sense if Islamabad’s version is to be believed. His task was to initiate a string of subversive activities on the Makran coast where not only Chinese are working on Gwadar port but Pakistan Navy and Air Force also has multiple facilities.” (Express Tribune March 29, 2016)
According to all evidences on board, it seems the mouse has been caught in the trap. The gas India has been letting off recently may just be to place Pakistan under pressure to compromise. No one is buying India’s story or threats. India needs to put a stopper on the gas. The stink is bad. Get a realistic stock of the situation. Get a hold on herself. India must understand Yadev’s arrest has given finality to her nefarious role within Pakistan. Offence is not always the best defense. Especially not if the culprit has been caught with his pants down, to quote an apt proverb.
What must India do after cooling her heels?
That’s for India to think.