Af-Pak, an Illusory Assessment of Terrorism and the Mistrust between USA and Pakistan

(Syed Saqib Ali Shah)

A military professor at the United States Naval War College has urged US-led coalition forces in Afghanistan to cast off the illusion of Pakistan being a most important ally in the war against Al-Qaeda and the Taliban and rather see that country essentially as one of its worst enemies. Colonel Robert Cassidy in an article published in the realcleardefense.com website maintained that Islamabad is and acts as an incubator for Islamist insurgents, and suggested eight steps for changing this politico-military equation between Washington, the Coalition and Islamabad, which are: Stop paying for malice; stop major non-NATO ally status for Pakistan; state intention to make the Line of Control in Kashmir permanent; shut down ground lines of communications via Pakistan; declare Pakistan a state sponsor of terrorism; issue one last ultimatum to help end the sanctuary; invite the Indian armed forces into Afghanistan for security operations. He said that for the last fifteen-plus years, Pakistan has employed irregular warfare to promote its chimerical notion of strategic depth by supporting the Taliban and more lethal proxies in Afghanistan. The sanctuary in Pakistan is the most significant obstacle to strategic success. This war will not end, or it will end badly if Pakistan does not stop its perfidy.

The entire article is based on unrealistic assumptions and false notions. It lacks research and objectivity that rightly pointed out an anti-Pakistan bias. These prejudiced ideas and opinion of Col Cassidy reverberate till the end. The fact of the matter is that he deliberately missed the historical facts when, where and how the US had deceived Pakistan in the last six decades of its bilateral relationship. We wish if Cassidy might have mentioned all the facts before lambasting Islamabad for being an incubator of Islamic insurgents. A recent example may open the eyes of critiques against Pakistan as a senior Al-Qaeda commander Qari Yasin linked to major attacks in Pakistan including the 2008 Marriott hotel bombing in Islamabad and the deadly attack on a bus carrying Sri Lanka’s cricket team in 2009 has been killed by a US air strike on 19 March 2017 in Afghanistan. Pakistan’s counter-terrorism department had offered a bounty of 2 million rupees ($19,000) for Yasin. The death of Yasin once again reminded of Pakistan, the victim of terrorism being the front line ally against war on terrorism. This is the right time for the US to stop unnecessarily pressurizing Pakistan and if it failed to do so, the distrust and doubts will only widen in the coming days.

It is ironic when a country which supported extremely questionable groups in Syria accuses another country of supporting proxies. It is generally acknowledged that US made big mistake of Iraq invasion in 2003 which created the conditions leading regional imbalance and increased radicalization. If Pakistan is source of problem in Afghanistan what happened to US in Iraq where Pakistan did not have any stake. The desperation is evident as US failure in Iraq looms over Afghanistan where it faces similar future once it withdraws. The threat of DAISH, emerged from US war torn Iraq now have recruiters present in 25 of Afghanistan's 34 provinces, the United Nations reported in September 2016. This new DAISH dynamic is quite troubling with their eyes toward Central and South Asia and if US premature behavior prevails what happened in Iraq will happen in Afghanistan. DAISH has similarly getting hold in Afghanistan. Afghanistan looks an unwinnable war for US who spent near a trillion dollars, lost many personnel but the country is still dysfunctional. All those who have been operational commanders or policy makers, when they are held accountable, obviously the defamation characters like Cassidy come up to rescue them with just surfacing blame on Pakistan to incubate Islamic insurgents.

The stalemate in Afghanistan is a sequel to the wrong policies of the US and the lack of clarity in its vision about how to resolve the Afghan conundrum. It has failed to make a realistic appraisal of the prevailing ground realities. US is trying to make Islamabad a “scapegoat to cover up its own failures” in Afghanistan. To add to its woes, the Afghan security forces raised by the US are simply not capable of defending the Afghan cities. Therefore, the US in a bid to cover up its own failures and inadequacies find it convenient to blame Pakistan for the prevailing Afghan situation.

Col Cassidy said that Pakistan has been an epicenter of terrorists and its establishment has maintained links between Al-Qaeda and Taliban. He has sidestepped from the facts as since 2009, 31 military installations, including airbases and intelligence headquarters, have been attacked by the militants affiliated with the Al-Qaeda, Tehreek-e-Taliban Pakistan (TTP) and its affiliate Lashkar-e-Jhangvi (LeJ). The attacks on Pakistan’s naval and air bases have led to the destruction of expensive equipment and loss of military personnel. If these terrorist networks and terrorism is sponsored singularly by Pakistan’s intelligence networks, then it would be irrational to believe that the military attacks its own installations. There seem to be few takers of Pakistan’s position as a “victim of terrorism”. The facts, however, cannot be brushed aside. More than 55,000 civilians and 6,000 or more Pakistani security personnel, have been killed during the past decade.

Pakistan is making “all endeavors” against terrorists of all hues and colour. It initiated indiscriminate action against all the militant outfits based in North Waziristan, including the Haqqani Network through Operation Zarb-e-Azb now extending it with Operation Radd-ul-Fasaad. Their entire infrastructure has been dismantled. However, the leadership of these terrorist groups managed to escape in Afghanistan due to non-cooperation from the Afghan government. Pakistan has taken unilateral action to manage and monitor the border to prevent across-the-border movement of the terrorists. Pakistan has deployed more than 200,000 troops to clear areas near the Afghan border of all insurgents and established government control over most of the treacherous terrain. The counterterrorism campaign has cost Pakistan tens of thousands of lives with economic losses estimated at $107 billion. Pakistan has long said that while it has established hundreds of border outposts in recent years, Afghan and coalition forces have not matched the action.

Pakistan has paid a staggering human and financial cost of the conflict in Afghanistan. Yet, the remarkable success of its military and law enforcement measures has successfully broken the back of terrorist outfits. It was only possible due to indiscriminate targeting of all terrorist groups. But instead of appreciation and applying a similar squeeze on its side of the border, it heard complaints that our strong action was “pushing” terrorists into Afghanistan. The fact is that terrorists found safe haven in Afghanistan because of US failed policies, conducive conditions and weak border controls. The US needs face saving when it has been trying to do something for years and constantly failing at it. However, it'll be damned if Pakistan is solely blamed for its own failures in Afghanistan.

It is time for the US to realize that it cannot achieve its objective just by applying shear force to dominate its opponent and relying on blame game. Pakistan firmly believes that peace in Afghanistan means peace in Pakistan. The solution to the fighting in Afghanistan lies in dialogue between the two local stakeholders facilitated and supported by neighbors. Pakistan, in any case has a pivotal role in this regard. The US attempt to revive the trilateral dialogue with Afghanistan and India while keeping Pakistan out of the loop further complicate the issue. The US administration and regime in Afghanistan therefore need to develop a realistic view about the ground realities. Pakistan remains committed to all the ideals and hopes its partners will share them with the same zeal. The blame game emanating from there should come to a stop. A particularly good sign from this country's perspective is General Joseph Votel's assertion that his side is working closely with Pakistan's new Army chief and his commanders to eliminate various terrorist groups hiding on both sides of the Pak-Afghan border. That should mean the US will do all that is necessary to wipe out TTP terrorists' sanctuaries from Afghanistan's south-eastern provinces which they have been using to launch cross-border attacks on the security forces as well as civilians all over Pakistan.

Citizens’ group demands human rights protection in Kashmir

By KADAYAM SUBRAMANIAN MAY 14, 2017 

citizens’ group report titled “Why Are People Protesting in Kashmir?” released in New Delhi on May 11 provides extensive evidence of government complicity in and disregard of serious human-rights violations in Indian Kashmir since July 9, 2016.

In November last year, 25 eminent citizens visited the Kashmir Valley over a period of 10 days to understand the situation there  after the wanton killing by security forces of three militants including Burhan Wani on July 8.

The citizens’ group included representatives of people’s movements, rights activists, women’s and youth organizations, filmmakers, writers and journalists from different parts of India.

The team visited all 10 districts of the Kashmir Valley region and met families of those killed by the Indian Army, central and state paramilitary forces, and special police units. They met families of those who had disappeared or been jailed. They met with the grievously injured, including those blinded by pellet gunfire and other weapons from July 8 onward.

The team met with lawyers, trading and business communities, government employees and unions, civil-society organizations, political organizations and others.

The  main findings of the citizens’ group were the following.

1. While the human-rights violations in Kashmir since the killing on July 8 of Burhan Wani and two others were serious, early 2017 had witnessed increased violence by the Indian Army and the central and state police organizations. The situation therefore called for serious attention.

2. Unarmed protests after July 8 were met with sustained attacks by the Indian Army, Jammu & Kashmir police and paramilitary forces with the use of pellet guns, PAVA incapacitant spray and firearms. Several unarmed civilians were killed by armed forces even absent of protests and demonstrations. Deaths and injuries caused by pellet guns included blindings and long-term ophthalmic damage. J&K police lodged counter-charges against the victims of unjustified murder, calling them “anti-nationals”. These government actions amounted to violation of the right to life.

3. Those citizens who pursued legal remedies to identify the army, J&K police and paramilitary personnel who had immunity under the Armed Forces (Special Powers) Act of 1990 (AFSPA), even when they killed innocents, became targets of repeated arrests, intimidation, torture and raids on their homes. These government actions amounted to criminal intimidation and have served as a deterrent to many families from pursuing the course of justice.

4. Many of those arrested under the J&K Public Security Act of 1978 had no prima facie cases against them. In all the cases under the PSA, government counsels merely sought to delay them using various legal excuses. Those who won their cases were promptly rearrested on the basis of fresh police reports. Even minor persons were arrested under the PSA. These government actions amounted to violation of the principles of natural justice.

5. Families of arrested persons were subjected to grievous custodial torture by government interrogators in police stations and jails, indicating the level of impunity enjoyed by the Indian Army under the AFSPA and the state police under the PSA. Further, multiple wings of the intelligence agencies were active, causing fear, mistrust and suspicion among the people.

6. In towns and villages where killings by the security forces had taken place, there followed a cycle of searches and seizures and indiscriminate firings, including at funerals and memorial meetings. In many cases, the Indian Army, the J&K police and the paramilitary forces broke  windows and destroyed household goods, livestock and food rations. In several cases, the armed forces destroyed local electricity transformers or substations, causing hardship to the entire village or locality. This government action amounts to collective punishment of the villagers. Women spoke of being subjected to violence and molestation along with verbal abuse. Paramedics in the government health systems reported significant increases in miscarriages. These government actions amounted to violation of every law and international covenant aimed at protecting women from sexual and other forms of violence.

7. Extraordinary efforts were made by doctors, paramedics, nurses and  others in response to the huge number of cases of those injured in police and military actions; many doctors were harassed by intelligence personnel to reveal the identity of patients. Many other atrocities took  place in hospitals. Pharmacies and kitchens set up by caring citizens to save lives were disbanded by the armed forces. in one case a doctor involved in such a humanitarian effort was arrested and held for many days. These government actions against emergency relief workers and health professionals violated international conventions and India’s own commitment to United Nations treaties.

8. Mosques were closed by authorities across the Kashmir Valley, including the Jamia Masjid in Srinagar and in Shopian. These government actions violated the right to freedom of religion.

9. A ban on Internet and mobile-telephone services, raids at newspaper offices, shutting down of newspapers and a blanket ban on one paper violate the right to freedom of speech and internationally accepted norms of the freedom of the press.

10. Targeting of state government employees, summary dismissals, denial of salaries, show-cause notices, and so forth amounted to denial of the right to freedom of association.

11. The affirmative response to calls for strikes issued by the Hurriyat Conference indicated people’s resistance to the wrongs of the Indian state.

12. Kashmiri people have demanded political resolution of the Kashmir dispute between India and Pakistan and recognition of the sustained effort of the Kashmiri people to assert their right to self-determination. The failure of the Indian state and every government since independence to address the political sentiments of the Kashmiri people has caused hurt and resentment.

13. The Bharatiya Janata Party government in New Delhi and the BJP-dominated coalition government in Srinagar have failed to initiate a dialogue with the people of Kashmir and their representatives.

14. The BJP government in New Delhi has sought to create a warlike situation with Pakistan along the borders of J&K and employed the alleged Uri attack to build a Hindu majoritarian sentiment against Kashmir, Pakistan and those of the Islamic faith.

15. A Kashmiri speaker has noted that the previous Indian teams that had visited Kashmir had looked at the problem only from India’s perspective, not from that of the Kashmiris. He demanded a debate on the issues of military occupation and self-determination of the Kashmiris.

In conclusion, the citizens’ group report stated that the BJP government in New Delhi and the BJP-dominated coalition government in Srinagar were engaged in actions that amounted to a complete violation of universally accepted human and democratic rights and the provisions of the Constitution of India that they claimed to be implementing.

Distressingly, some senior members of the BJP government in New Delhi have often made inflammatory and provocative statements against the people of Kashmir. Regrettably, the parliamentary opposition has lacked the political courage and will to call for accountability on the part of the government of India.

The important 75-page citizens’ group report demanded the following.

1.    Recognize the Kashmir dispute and accept that its resolution can only come through a political solution and not through military intervention and denial of all democratic and human rights.

2.    Withdraw the army and other paramilitary forces from civilian areas of Jammu & Kashmir.

3.    Repeal the J&K Public Safety Act of 1978 and the AFSPA (J&K) Special Powers Act of 1990.

4.    Release all political prisoners and in particular all prisoners arrested under the J&K Public Safety Act.

5.    Grant access to the UN High Commissioner for Human Rights for a fact-finding mission in J&K.

6.    Establish a judicial tribunal under the Supreme Court of India to examine all cases of extrajudicial executions including that of Burhan Wani.

7.    Enter an open and transparent dialogue without preconditions with all sections of Kashmiri peoples and their representatives to bring about a resolution of the Kashmir dispute that recognizes the aspirations of the people to determine their own destiny through recognizably democratic means.

The report is a final wake-up call for the Narendra Modi-led government of India. Its unwillingness to initiate a dialogue process with the Kashmiri people has led to an explosive situation.

The article was published in Asia Times. 

Kulbhushan Jhadav: Could ICJ be losing its charm?

By Mian Ibrar

Even though the International Court of Justice (ICJ) may announce its verdict on Thursday after its maiden hearing of the Indian appeal seeking temporary measures for halting the execution of Indian spy Kulbhushan Jhadav, it is intriguing to see a conspicuously biased behaviour of the ICJ right from the moment India filed the petition as manifested in the unprecedented haste shown to put Pakistan on notice in a case where ICJ knew it has no jurisdiction.

“Whatever the case verdict may be, the ICJ has failed a major credibility test by showing an ‘indecent and unprecedented haste’ in accepting the Indian plea, fixing the public hearing of the case without giving appropriate time to Pakistan to prepare for the case,” a general observation held by the analysts as noted by this scribe of Pakistan Today.

As discussed in the TV channel talk shows and newspaper reports, ICJ had taken long enough time to enable the defending party (India) back in 1999 to prepare when Pakistan had taken the downing of its naval plane by India in which numerous people lost their lives.

“But when India petitioned the case of its spy who was caught red handed in terror sponsoring, terror-funding and acts of sabotage in Pakistan, the ICJ not only took up the matter the same day, it also fixed its public hearing without giving Pakistan even seven days to prepare.

“Pakistan took the matter to the ICJ on 21 September 1999 and lodged a compensation claim accusing India of shooting down an unarmed patrol aircraft and sought US$60 million in reparations and compensation for the victims’ families”.

It took ICJ almost a year to come up with the verdict despite the fact the matter was of serious nature between two nuclear neighbours that could’ve entered into a full blown war. Yet, the ICJ showed no haste.

“Moreover, since the ICJ itself had ruled in that case of the year 2000 that it had no jurisdiction on bilateral matters between two commonwealth states citing an exemption it filed in 1974 to exclude disputes between India and the other Commonwealth States, and disputes covered by multilateral treaties, it put Pakistan on notice in Jhadav case.”

Another disturbing fact is that the bench hearing Khulbhushan’s case includes a judge from India, Dalveer Bhandari.

“Even if Pakistan’s counsel did not raise an objection to the presence of the Indian judge on the premise of conflict of interest, the panel itself should have excluded the judge. Moreover, the concerned judge of India should have recused himself in best judicial practices and norms. Since he chose to stay on, one cannot rule out the possibility that the Indian judge could be biased and may also influence fellow judges.”

Another fact that needs to note is that on May 8, the Indian media backed by official claims ran a false story attributed to the ICJ that it had stayed the execution of Khulbhushan. However, the ICJ did not bother to issue a rebuttal of the Indian claim. This reflects how Indian media misleads the world on the basis of white lies.

Intriguingly, the ICJ neither rebutted nor contradicted the Indian media reports nor it issued a clarification. This reflects the bias of the ICJ in favour of Indian and against Pakistan. One cannot rule out the possibility that the Indian judge in the ICJ panel might have played a key role in this regard.

When some journalists approached the ICJ for clarification, the ICJ Information Officer Boris Heim confirmed that the ICJ did not issue any stay orders against the hanging of Khulbhushan. However, even after media’s questioning, no rebuttal was issued which is again intriguing despite the fact that the attention of ICJ was drawn towards the Indian propaganda.

The three-page unofficial notification of the ICJ was released by the Indian media prior to the release by the ICJ.

There are instances where the ICJ did not act swiftly as it did on the Indian plea in Khulbhushan’s matter. Moreover, the manner adopted to issue the notifications as well as the letter to the other party was also unprecedented. Never ever the ICJ has shown such a haste to hold a public hearing on any matter in a week’s time. This also reflects the prejudice and favouritism adopted by ICJ on an Indian appeal

India in its petition stressed that Pakistan violated Vienna Convention on Counselor Access to Khulbhushan but it chose to hide the fact that there was an exclusive agreement signed by India and Pakistan in 2008 on consular access issues. Since the bilateral agreements, which supplement international conventions, take precedence over International conventions, the ICJ should have known about the fact but ICJ did not raise this fact which thickens the plot.

The UN secretary general has issued a notification stating that Pakistan has sought exemption from ICJ about the matters related to its national security. The ICJ was also oblivious to the fact that it had no jurisdiction over the matter following the UN secretary general’s notification. However, not only ICJ admitted Indian plea but fixed the hearing without giving ample time to Pakistan to prepare for the case, hence, the ICJ looks too compromised and much biased in its conduct that it cannot be trusted by the world irrespective of the fact what verdict is issued by the court. The ICJ should review the way it has acted in clear support to India as its credibility is at stake. The comity of nations and countries who have signed the statute of the ICJ may no longer trust the institution, if corrective measures are not adopted in time.

The article was published in Pakistan Today. 

Understanding the Jadhav Case at the International Court of Justice (India v. Pakistan)

Oves Anwar, Director, RSIL

17^th May, 2017

On Monday, both India and Pakistan presented oral arguments on provisional measures before the ICJ in the Jadhav Case (India v. Pakistan). The case has generated considerable debate as well as much confusion. This is not surprising as, outside the small community of international law experts, the workings of the ICJ often remain shrouded in legal technicality and jargon. This article aims at making the case before the ICJ more accessible to individuals outside the legal community (as well as to some within it). This is by no means an exhaustive discussion on the facts and legal precedents which surround the case but it will raise the most pertinent issues needed to follow the case in the coming months and perhaps years.

The ICJ Proceedings:

Monday’s oral hearings marked the first phase of proceedings in this case. The Court will now pronounce an order regarding provisional measures. In essence, they can grant India’s request for a ‘stay’ on the execution of Kulbushan Jadhav or deny such a request on the basis that there is no urgency in the matter.

At the current phase of proceedings, the Court will make a preliminary determination of its jurisdiction to hear the case. After this stage, Pakistan, if it chooses to, can more comprehensively challenge the Court’s jurisdiction through ‘preliminary objections’. This would mark the second phase of proceedings. At the culmination of the preliminary objections phase, the Court will have to make a conclusive determination of whether or not it has the jurisdiction to hear the case. If the Court determines that it does have jurisdiction, then the case will move on to the merits phase, otherwise, the case will be dismissed for lack of jurisdiction. It is after the merits phase that a judgment would be rendered by the Court. Each phase of proceedings may include both written pleadings submitted to the Court as well as oral hearings.

What is the Jadhav Case about?

The case before the ICJ instituted by India is about an alleged violation of the Vienna Convention on Consular Relation of 1963 (VCCR). The VCCR grants States certain reciprocal rights and obligations regarding consular relations. A consul is generally a part of the diplomatic mission of a State in another State. In addition to promoting economic and commercial relations between the two countries, consular officials also look to protect their State’s interests in the host State, especially in relation to their citizens present in the host State. In this regard, Article 36(1) of the VCCR grants consular officials the “right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation.” It is this specific clause that India states Pakistan has violated by not granting its consular officials access to Kulbushan Jadhav. What this translates to is that the case in the ICJ is not about Jadhav’s innocence or guilt, the ICJ has itself stated that it is not a Criminal Appellate Court (Paraguay v USA), rather the case is only whether India had a right under the VCCR and whether Pakistan violated it. It is important to note that the ICJ cannot, under any circumstances, order the release of Jadhav, despite what India may have prayed for in its application instituting proceedings before the Court.

Jurisdiction of the Court

Jurisdiction refers to whether the Court has the authority or competence to actually hear the case and render a judgment on it. In other words, is there some legal basis which empowers the Court to be able to adjudicate on the particular matter brought before it? The ICJ’s jurisdiction can be invoked on a number of bases. The primary one is through the Courts ‘compulsory jurisdiction’ under Article 36(2) of the ICJ Statute. Here States submit a ‘declaration’ accepting the Court’s jurisdiction. Unlike ordinary courts of law in a country where individuals have little choice but to accept jurisdiction, the ICJ requires states to voluntarily submit themselves to the Court’s authority and allow the Court to settle their dispute.

When submitting a ‘declaration’, States may limit the grounds on which a case is brought against it. India has for several decades had a declaration that severely limited the grounds that other countries could take it to the ICJ for. Some of these seem specific to Pakistan and that is why contentious matters such as Kashmir or Siachen have not been brought before the ICJ. Pakistan recently enhanced its own declaration on 29^th March, 2017 and is now, in large part, at par with the Indian declaration. Under these declarations neither Pakistan nor India would be able to bring a case such as Jadhav’s to the Court.

However, India did not utilize the path provided in Article 36(2) to the ICJ Statute but rather that found in Article 36(1) which refers to the Court’s jurisdiction in “…all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.” Through this India raises the Optional Protocol to the VCCR which relates to the settlement of disputes arising out of the Convention. Both Pakistan and India have ratified this Optional Protocol which in Article 1 specifically states that, “Disputes arising out of the interpretation and application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice…” This is, therefore, the legal basis upon which the Court can exercise its jurisdiction and the limitations imposed by Pakistan’s declaration under Article 36(2) would stand bypassed. This is not to say that Pakistan cannot challenge jurisdiction on other grounds. There are significant arguments that can be made on the Court lacking jurisdiction in the matter which will be discussed below.

Jurisdiction, however, has differing standards and thresholds that need to be met at different stages of the Court’s proceedings. The current stage of proceedings – provisional measures – is instituted to prevent a continuing or imminent harm to the rights of one party. Due to the urgency of such measures, the Court does not have adequate time to assess its substantive jurisdiction comprehensively. It, therefore, only requires the requesting party (India) to establish that the Court has prima facie jurisdiction. This is a low threshold and if a clear clause in a treaty grants the Court jurisdiction, the Court will generally tend to accept jurisdiction at this stage.

If the Court accepts India’s argument of prima facie jurisdiction, then after a decision on the request for provisional measures, the Court will move on to the merits phase. However, as noted above, before the merits phase, Pakistan will have a chance to challenge the Courts substantive jurisdiction comprehensively at the preliminary objections phase. It is here that Pakistan can outline in detail its arguments for why the ICJ should decline to entertain India’s case. The ICJ will then have to make a final determination of whether it does indeed have jurisdiction in the case or not. If the ICJ determines that it does not have jurisdiction then the case will be dismissed. Alternatively, if the Court maintains that it does have substantive jurisdiction to hear the case, then the proceedings will move on to the merits phase.

Bilateral Agreement of 2008

The case is certainly not straightforward as numerous complicating factors arise. The foremost among them is perhaps the fact that in 2008, as part of the Indo-Pak Composite Dialogue, both countries entered into a Bilateral Agreement on Consular Access. The agreement is aimed at “furthering the objective of humane treatment of nationals of either country…”, and provides for concrete mechanisms for India and Pakistan to inform each other when its citizens are arrested and to provide them with consular access within three months.

The 2008 Agreement has been relied upon by both nations over the past decade for exchanging lists of nationals detained or imprisoned in each other’s countries. It is particularly relevant in the case of fishermen that inadvertently enter each other’s territorial waters. In fact, an India-Pakistan Joint Judicial Committee on Prisoners established in January 2008, has used the mechanisms under the 2008 Agreement to ensure the exchange of prisoners, consular access, and humane treatment on multiple occasions. The Agreement has also been re-affirmed on multiple occasions by joint-statements of officials from both countries. This includes a joint-statement by the Indian Minister of External Affairs, Mr. S.M. Krishna and Pakistan’s Foreign Minister, Hina Rabbani Khar on September 8, 2012, as well as numerous joint-statements by the Joint Judicial Committee on Prisoners.

What is particularly relevant about the Agreement is clause (vi) in that it specifically states, “in case of arrest, detention or sentence made on political or security grounds, each side may examine the case on its merits”. This gives both Pakistan and India a degree of discretion to deny consular access where the compulsions of national security require it.

India is trying to distance itself from this agreement on the grounds that it is not registered with the United Nations. Article 102 of the UN Charter states that, “No party to any such treaty or international agreement which has not been registered… may invoke that treaty or agreement before any organ of the United Nations.” The ICJ is an organ of the United Nations. Interestingly, however, the requirement of registration is not time specific, nor does it mean that with the commencement of proceedings in the case that Pakistan has forfeited its chance to register the Agreement. Pakistan can, and probably should, register the Agreement as soon as possible. In fact, in Qatar v. Bahrain, the ICJ did not object to Qatar’s registration application to the UN Secretariat after the proceedings had commenced. The Court went on to state, “Non-registration or late registration, on the other hand, does not have any consequence for the actual validity of the agreement, which remains no less binding upon the parties.”

India also alleges that the Bilateral Agreement contradicts the VCCR. The India claim is that the right to consular access under the VCCR is absolute and cannot be limited under any circumstances. This raises the question of why then did India enter into an agreement voluntarily which supposedly curtails its rights. It is important to note that the validity of the Bilateral Agreement may hinge on the wording of the VCCR which does not prevent “…States from concluding international agreements confirming or supplementing or extending or amplifying” the VCCR. The Court will have to see whether the Agreement of 2008 confirms, supplements, extends or amplifies the provisions of the VCCR. This issue is bound to raise a number of interesting issues relating to the extent that a State can limit its own rights, the status of treaties that come later in time, and the limits of the overriding compulsions of national security over international rights. Here another convention finalized in Vienna would be of utmost relevance – the Vienna Convention on the Law of Treaties (VCLT). The VCLT serves as a tool for the interpretation of international treaties and agreements. I will not go into the details of the VCLT’s impact on the case as Taimur Malik and Muhammad Bilal Ramzan have already presented an excellent analysis here.

The Bilateral Agreement may also be fundamental to Pakistan’s case in demonstrating that no dispute exists at all. For the ICJ to decide the case under the Optional Protocol to the VCCR a dispute must exist as to the “interpretation and application of the Convention.” Pakistan can argue that the Bilateral Agreement is clear evidence of both Pakistan and India’s mutually agreed upon interpretation and application of the VCCR. If this was not the case, then why would both sovereign States put this understanding into writing in a legally binding Agreement? If Pakistan can indeed demonstrate this to the satisfaction of the Court, the Court will have to decline jurisdiction as no dispute between the parties would exists, i.e. there would be nothing to adjudicate upon.

Status of Kulbushan Jadhav

Another complicating factor is the status of Kulbushan Jadhav. India’s claim that he retired from the Navy and was now a businessman rings hollow when confronted with the fake identity that Jadhav had assumed of Mubarak Hussain Patel, corroborated by a passport found on him.

Furthermore, espionage is not a matter with considerable precedence under International Law. It is a reality of our times that espionage is conducted by almost all States today, yet legally there is no substantive regulation provided for it in international law outside the laws of armed conflict, also known as International Humanitarian Law (IHL). Under IHL, rights of communication of spies can be curbed due to the security risks they pose. By analogy, the same security risks exist in times of peace, especially if the concerned spy is engaged in funding, planning and supporting terrorism in a country. This is undoubtedly why Pakistan insists on refusing consular access to Jadhav. Any access to him may allow him to reveal the extent of information he has divulged to Pakistani authorities, the Indian intelligence assets that have been compromised, the assets that are still in play, etc. Apart from the direct national security risk this would pose, such access may also compromise on-going investigations into Jadhav’s network in Pakistan. Pakistan’s legal team at the ICJ will have to convince the Court that Jadhav’s actions are not isolated events but rather a manifestation of the overall Indian strategy to destabilize Balochistan as evidenced by the public statements of its National Security Advisor, Ajit Doval and other Indian officials.

What can India hope to get from the ICJ?

Provisional measures

India has requested for immediate provisional measures to put a ‘stay’ on the execution of Jadhav till the case is finally decided by the Court. For this it will have to establish the urgency of the case. In the Avena Case, Mexico sought provisional measures staying the execution of 54 Mexican nationals on death row in the United States. The ICJ only granted provisional measures for three of these individuals as their execution was scheduled within six months. Since the domestic proceedings in the Jadhav case have not ended as yet, it may be difficult for India to demonstrate real urgency in the matter.

Final Judgement

In its application to institute proceedings India has requested four forms of relief from the Court. Firstly, the immediate suspension of the sentence awarded to the accused. Secondly, a declaration that the sentence of the military court is violative of International Law and the provision of the VCCR. Thirdly, restrain Pakistan from executing the sentence and directing it to annul the decision. And fourthly, if Pakistan is unable to annul the decision then the Court declare the decision to be in violation of International Law and order the release of Jadhav.

Unfortunately for India, none of these different (and also quite similar) forms of relief are within the Court’s purview to grant. The only issue the ICJ can make a determination on is whether Pakistan violated its obligation to India under the VCCR. The VCCR does not provide any grounds for the annulment of a decision of a domestic court. Therefore, Jadhav’s trial or his sentence cannot be reversed by the Court. What can be discussed is what would have happened had Jadhav been granted consular access. Would Indian representatives have been able to provide better legal counsel to strengthen Jadhav’s case before the Field General Court Martial? Would access have led to a different verdict? In any decision the Court makes, the Sovereign authority of Pakistan to deal with a terrorist and spy will have to be weighed against any alleged violation of India’s rights under the VCCR.

Even if India is able to convince the Court to decide in its favour, Jadhav cannot be ordered to be released as that is outside the scope of powers of the ICJ. However, like the Court’s decision in LaGrand and Avena, Pakistan may be asked to ‘review and reconsider’ the Field General Court Martial proceedings with a view to assessing whether the granting of consular access would have made a difference to the outcome of the Jadhav case. In Avena, the court explained that ‘review and reconsideration’ involved judicial review of the process and a determination to be made whether the VCCR violation caused actual prejudice to the defendant. Importantly, however, the ICJ noted that such a review was to be conducted by the State “by a means of its own choosing…”, thus acknowledging the sovereign authority of a State over its domestic criminal matters as well as accepting the limited powers of the ICJ in such cases.

“THE SAGA OF BANGLADESH AND KULBUSHAN: INTERNATIONAL WAR CRIMES”

Written by: Dr Maria Sultan DG SASSI

According to UN GA resolution 3314 of 1974 there are 7 acts of aggression including attack of armed forces against territory, military occupation of a territory, or sending armed groups, irregulars, or mercenaries to carry out of acts of armed forces offence against the administration of justice which top the list of almost 70 crimes which are listed as crimes against humanity according to the international criminal court (ICC).

These not only top the list in terms of the violations committed but also describe the acts as unacceptable even between state to state relations, today as the nation grapples with the list of crimes, terrorists activities and subversion carried out by Kulbhushan the Indian master spy and saboteur, we are reminded of the painful history of 1971. The 1971 war had culminated from the wide espionage and sabotage activities of the research and analysis wing (RAW) of the Indian establishment, to subvert, annex and then attack the Pakistani armed forces and the state of Pakistan.

Nothing was natural including the quest by Sheikh Mujib s attempt to raise a Bangladeshi army as an alternative to the ex Mukti Bahini on the behest of the Indian intelligence. He was butchered by his own army less his two daughters hazing and Rehana. The Awami league was to be the only savior as all other political parties were banned and so was the spirit of the free media and all media houses respectively. The Al was converted into Bangladesh Krikshik Sramil Awami league BAKSAL, with a two pronged strategy of eliminating Jamat and convict Bangladesh national party leaders for international war crimes. It is ironic that today these are being convicted of sham was crimes in Bangladesh while the Bangladeshi government itself has a lot to answer for the unfair recourse to justice and their leader’s involvement in the war crimes of 1971 carried out by Indian saboteurs against the people of Pakistan, a country they divided.

Though the basis for the political divide may have existed and Pakistani administration may have had its own set of responsibilities for the failure to mitigate the grievances and help erase the faultiness that existed between east and west Pakistan, the fact cannot be set aside that at the scale, the nature and extent of the international war crimes carried out by India in the than east Pakistan could ever be ignored. Where an entire country was left to the mercy of intrigue, espionage, political unrest and ultimately declaration of war by India. Pakistan has now a case to follow after the conviction of Kulbushan to question the role of Indian intelligence in the separation of east Pakistan as per internal war crimes.

The irony is that instead of Pakistan taking India to the international war crimes tribunals the Bangladesh government has embarked on a witch hunt and is trying the people of Bangladesh of war crimes which were in fact carried out by the admission of the Indian Prime Minister himself when he stated that India had instilled the plan of sabotage and terrorism than in east Pakistan before the 1971 war, to help serve Pakistan into two halves. What is further disturbing is the fact that out of the top five leaders of Jamat Islami (JI) and one from BNP who have executed in the name of sham international war crimes tribunal none have been given access to free and fair trials let alone allowed to present their witness or other supporting evidence from Pakistan to be included in their defense let alone allowed visas or given the right to accept the affidavits of the witness as part of the court proceedings as it was termed by the Bangladeshi SC as coming from an enemy state. Norms of international law or for that matter the international crime court war tribunals were not maintained that is of providing free and fair trials was se aside in the name of pleasing the Indian masters. This may be the method of choice for a false democracy and weak state for Pakistan we have the courage to test our system in the face of global and regional hostility, for we believe in our state institutions, our quest for justice and our commitment to international norms. India seemed poised to repeat this performance in Pakistan as its state intelligence through its operators and officers set to create mayhem and civil unrest, target killings, terrorism and ultimately an entire separatist ( terrorist) movement in Pakistan in Baluchistan.

The recent conviction of Kulbushan Jhadav through the honorable Pakistani court of field general court marital (FGCM) for his acts against the state of Pakistan and its people was helping to assist raw in planning to coordinate and organize espionage and sabotage activities and waging war against Pakistan . the lost of his activities has been long as he sponsored and directed improvised attacks IED attacks in Gawadar and Turbat, directed attacks on the radar station an civilian boats in the sea and apposite to Jawani, funded secessionist movement in Baluchistan by misdirecting the Pakistani youth, SPONSERED EXPLOSIONS OF GAS pipelines and electric pylons in sibi and sui areas in Baluchistan, sponsored IED explosion in Quetta 2015, attacks the Hazaras in Quetta and Shia Zairian enroute to Iran and back, and facilitated and organized attacks against the leas, fc and FWO in Turbat, Punjgur, Gawadar, Pasni and Jiwai in 2014-2015.

The trial was conducted by the FGCM and concluded under the Pakistan army act section 2 and official secrets act of 1923 merely outlines the sustained war crimes conducted by India in Pakistan and as per the international war crimes are trial able in the international war crimes tribunal if need be so for Pakistan to pursue the case there. The case has been carried out as per the law of the land and the evidence has been recorded under the law of evidence of 1984 and the confessional a statement was recorded before a magistrate under section 1984 Crime regulations of Pakistan penal code CRPC, Interestingly Pakistan requested the government of India through a letter of assistance for key information and witness on 23 January 2017, which India chose to ignore.

The reality of the issues that he was serving commander of the Indian navy who at the directions of Raw was not only planning but was also directly responsible for sponsoring terrorism in Pakistan, Pakistan still per as international norms carried out the trial in an FGCM where he was given the same rights as those enjoyed by Pakistani military officer who may be tried for similar offences including the presence of judge from the JAG branch of the military and still retains his legal options of either requesting for an appellant court in 40 days, a mercy appeal to the Pakistani army chief or than ultimately a mercy appeal to the Pakistani president if the supreme court also maintains the earlier judgment . For Pakistan the case is not so simple of merely trying on Indian intelligence officer but is reflective of the dangerous and unethical war imposed on the people of Pakistan.

We, the people of Pakistan have paid the price in blood and destruction the international wars against humanity, it is time that the world wakes up to the responsibility of maintain international peace and security and reins in their new partner India, which is not only involved in regional unrest but is forcing it state mechanisms to carry out international war crimes starting from the saga of Bangladesh to that of Kulbushan, the story is never ending. But with the conviction of Kulbushan one this is for sure that the story war crimes have just begun for India where it must bear witness to all the killings destruction it has caused to the people of this region.

The article was published in www.sassi.org

OBOR Goes Global

Dr Rashid Ahmed Malik

An international conference on the One Belt One Road OBOR (OBOR) will be held in Beijing on May 14 and 15, which will be attended by 20 heads of state and government and 50 world’s organizations. The initiative of building infrastructure, connectivity, and trade was offered by President Xi Jingping two years ago.

The OBOR offers the world’s largest economic corridor and physical infrastructure development program benefiting over 66 countries and 4.4 billion people and even more. To build infrastructure, at least over US$ 8 trillion are need up to 2020. China is using its huge financial potential of foreign reserves, trade surplus, assistance programs, and its outbound investments to build infrastructure worldwide.

China set up a new financial institution, Asian Infrastructure Investment Bank (AIIB) and the Silk Road Fund (SRF) to finance the Silk Road projects. Chinese companies have been geared up to undertake OBOR projects with individual countries. Projects are advanced in Pakistan and Indonesia.

The initiative surpassed all development programs offered by UN organisations or world’s institutions. A truly globalised world will be built under the OBOR initiative. The Chinese Government shares great expectations with a number of countries on this initiative and Chinese diplomacy has been geared up to achieve the goals of the OBOR.

What is actually the Beijing OBOR Consensus? China is replacing the United States and European powers. Japan’s economic might is being threatened. China came up with big approach to solve basic economic problems of Asian countries. The Chinese leadership realized glaring gaps among Asian economies.

China has fourteen neighbors. Japan and South Korea do not physically border with China. Russia and India are China’s strongest neighbours and they have huge potential to grow in the future but they also face economic problems. The other twelve neighbors in South East Asia, Pakistan and Afghanistan, and Central Asian face economic bottlenecks and are under-developed economies.

Chinese leadership has paid attention to these countries and desired to elevate the economic level of these countries to developing a meaningful relationship with the emerging Chinese global economy. This is not a tactical or strategic move by China to gain influence in Asia but its policy was moved by economic necessities.

China desires global cooperation among all nations irrespective of their economic system and political affiliation as it believes that eradication of poverty and bringing equal development are universal goals. The OBOR brings the dawn of the new era of globalization. It is the most ambitious program of the present century. It is a universal initiative and all inclusive and it hardly left out a nation.

The OBOR is makes the forgotten and ignored South Pacific Oceanic countries relevant again. Premier Li Keqiang visited Australia and New Zealand recently. Australia can be benefited from the OBOR as the country’s largest trading partner is China. In 2015-16, China accounted for 26.5% of Australia’s total merchandise trade.

For New Zealand, its joining of the 21st Century Maritime Silk Road, linking South East Asian countries with China, would be beneficial. New Zealand will be the last point of the Maritime Silk Road. New Zealand also wants to play its part on the Silk Road development to integrate the South Pacific with the Silk Road. New Zealand is the founding member of the AIIB.

After the Trans Pacific Partnership (TPP) received setback as a result of the withdrawal of the United States, OBOR offers immense opportunities to the Oceanic and the South Pacific region. Those we declined were also given a space to join the initiative as the OBOR is invitation-based and all inclusive and fosters anti-bloc politics.

The OBOR is not a regional trading bloc consisting of a few or a group of countries focusing on free trade that also brings conditions. The OBOR is an open initiative and it multiplies opportunities. The OBOR is not even wholly a Chinese enterprise. At the start of the OBOR initiative, China hoped to grow its annual trade volume with OBOR countries from US$1 trillion in 2013 to US$2.5 trillion within a decade. This amounts to 9.6 per cent of annual growth.

The space to China is being provided, by default, by the United States because of its unending military adventures worldwide and the lackluster response of the European powers after that got entangled into tackling of terrorism and shirking of economies. Russia was busy with the counter strategic approach with the United States and Europe to gain influence. Japan is handicapped by its recession and lack of growth. China speedily filled that vacuum left by these powers. It was rightly described by many as the Beijing Consensus replacing the Washington and European Consensus.

The article was originally published in The Nation on 25 April 2017.