Odds in favor of Pakistan as ICJ fixes date for Jadhav case

The International Court of Justice (ICJ), the principal judicial organ of the United Nations, will hold public hearings in the Jadhav case (India v. Pakistan) from Monday 18 to Thursday 21 February 2019, at the Peace Palace in The Hague. (AP/file photo)
Updated 04 October 2018
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Odds in favor of Pakistan as ICJ fixes date for Jadhav case

  • Pakistan may choose not to comply with ICJ verdict, as per precedents
  • Case focuses on granting consular access to Kulbhushan Jadhav and will not have any bearing on his sentence, says legal expert

KARACHI: Legal experts are optimistic that Pakistan will emerge victorious in the Kulbhushan Jadhav Case, which the International Court of Justice (ICJ) on Wednesday fixed for hearing on 18 February, 2019. However, if the case goes against it, then there are precedents which may mean Pakistan can choose not to comply.

“Pakistan has a strong case, especially since the government of Prime Minister Imran Khan has sent a competent legal team to the Hague,” Barrister Masroor Shah, an Islamabad-based legal expert, told Arab News.
“The International Court of Justice (ICJ), the principal judicial organ of the United Nations, will hold public hearings in the Jadhav case (India v. Pakistan) from Monday 18 to Thursday 21 February 2019, at the Peace Palace in The Hague, the seat of the Court,” a press release from the ICJ, released on Wednesday, stated.
According to the release, the hearings will be streamed live in English and French on the Court’s website as well as on UN Web TV, the United Nations online television channel.
Jadhav, an Indian national, was arrested on March 3, 2016 in the Balochistan province of Pakistan. The accused, a serving officer in the Indian Navy, confessed to conducting sabotage and terrorism activities on Pakistani soil. India, however, rejected the claims, insisting that that Jadhav’s confession was forced. 
Jadhav was sentenced to death on April 10, 2017 by the Pakistan’s Field General Court Martial (FGCM) for his involvement in espionage. His appeal was rejected by the military appellate court. On May 8, 2017, India appealed to the ICJ against the verdict and 10 days later Jadhav received a stay of execution.
India submitted memorials in the Jadhav case. In response, Pakistan claimed that the Vienna Convention was not applicable in the case of Jadhav, as he was serving officer in the Indian Navy and spying for the country’s external intelligence agency, RAW, when he was arrested in Balochistan.
India maintains that the accused was kidnapped from Iran where he was working, having already retired from the Indian navy.
Article 36 of the Vienna Convention on Consular Relations (1963), which the United States ratified in 1969, states that when a foreign national is arrested or detained on criminal or immigration charges, the detainee must be advised of the right to have the detainee’s consulate notified, and that the detainee has the right to regular consultation with consular officials during detention and any trial.
This article provides Jadhav no relief, experts in Pakistan claim.
“Consular access, which India has been demanding for Jadhav and which it also made a basis for taking the case to ICJ, cannot be provided to a spy, who has confessed to acts of terrorism inside Pakistan,” Shah argued, adding there are three cases in which such access can be provided.
The first, Shah said, is if the detainee is a prisoner of war who has been imprisoned when the countries that are party to a case are in a “declared” war. The second case is if the accused has entered the country legally but his visa is expired. Third is if the accused is a refugee. 
“Jadhav’s fits none of the above cases, so he doesn’t merit consular access and Pakistan has rightly and legally denied such access,” Shah said.
He also said that India’s claim that Jadhav was kidnapped from Iran is invalid. 
“Had a national of a third country been kidnapped from Iran, then Iran — being a sovereign state — would have been the first to object. Iran has never substantiated the fake Indian claim, hence this point should be rejected, immediately,” Shah said.
When asked about what Pakistan’s legal position would be if the case is found in India’s favor, Shah said that Pakistan should not have submitted to the legal jurisdiction of the ICJ in the first instance.
On 10 August 1999, a maritime patrol aircraft of the Pakistan Navy was shot down by the Indian Air Force over the Rann of Kutch, killing all 16 people on board. “Pakistan moved to the ICJ and India refused to submit to its jurisdiction. So, Pakistan had a precedent from Indian case and should have not gone to the International Court,” Shah says.
So, it seems unlikely that the ICJ’s verdict will go against Pakistan, legal experts say, Pakistan has the option not to comply.
“Countries are not bound to comply (with ICJ verdicts) because there are certain precedents in which many countries have not complied with ICJ orders,” said Muhammad Majid Bashir, a legal expert who has also served as a judge.
International law expert Taimur Malik told Arab News that both sides have attached “unnecessary expectations and emotions” to the outcome of the case.
He highlighted that the “case is focused solely on granting consular access to Jadhav and the ICJ will not be deciding anything regarding his sentencing in Pakistan.”
Malik added that the ICJ’s main concern would be deciding whether the dispute should be decided on a bilateral basis pursuant to the Consular Agreement of 2008 between India and Pakistan, and whether the Vienna Convention on Consular Relations applies to someone arrested for involvement in espionage or terrorist activities.


Taliban says its fighters will join Afghan security forces after US troops leave

Updated 23 July 2019
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Taliban says its fighters will join Afghan security forces after US troops leave

  • Taliban spokesman Suhail Shaheen says Taliban will be part of any future government in Kabul
  • Possibility of a peace deal in the next month, even before Eid on August 11, Shaheen says

ISLAMABAD: Taliban political spokesman Suhail Shaheen said on Tuesday thousands of Taliban fighters would become part of the Afghan army and other security forces after US and other foreign troops left Afghanistan following a peace deal with the United States. 
The United States and the Taliban are close to an agreement to end an 18-year-long Afghan civil war. The deal is expected to be centered on a US pledge to withdraw troops in exchange for a Taliban promise not to let Afghanistan be used as a base for terrorism, officials say.
US Special Representative for Afghanistan Reconciliation Zalmay Khalilzad will travel to Afghanistan and Qatar from July 22 – August 1 to restart talks with the Taliban in Doha.
“We have agreed that the army will stay as an institution,” the Taliban spokesman told Arab News via telephone when asked about the fate of thousands of Taliban fighters after the peace deal. “The army is required and will remain as a base, as a foundation but reforms are needed.”
He said participants at Moscow’s intra-Afghan conference this month had also called for reforms in Afghan security institutions, adding that future intra-Afghan meetings would decide how reforms would be introduced.
“Yes of course they (Taliban) will be part of the security system. They have rendered huge sacrifices for the liberation of the country,” Shaheen said.
To another question about whether the Taliban would be part of any future political system and the government, the Taliban spokesman answered in the affirmative adding: “But they will not be the part of the present administration. There will be a new system and a new government and we will definitely be part of that.”
When asked if the Taliban could become a political party when foreign troops withdrew, Shaheen said: “Our leadership will decide about the future policy. Our top priority is to end the occupation and second, to establish an Islamic government and we will take Afghans into confidence. Our leaders will decide as to how would we work.”
He said the Taliban would allow women the right to education, jobs and business under Islamic principles, adding that they would have to observe the Islamic veil.
“There had been no curbs on women education during our previous government. But we had been in the state of war that time and had no financial resources and the priority had been to maintain security as there had been anarchy and chaotic situation that time. But we want the world to help us and we will establish good relations with the world and to solve all our problems under an Islamic system,” Shaheen said.
He said the Taliban neither recognized the present system in Kabul nor the constitution in its present form.
“We recognize the constitution as a necessity and want another constitution,” Shaheen said. “We think other institutions are also necessary but we do not recognize the present institutions and that is why we are holding intra-Afghan conferences to discuss how the constitution and institutions should be.”
When asked if the Taliban recognized the present democratic system, Shaheen said: “We believe in an Islamic system.” 
He said there was a possibility the Taliban and the United Sates could “conclude certain final points” in the possible peace deal within a month and even before the Muslim festival of Eid, likely to be celebrated in Afghanistan on Aug. 11.
“I am hopeful we will reach an agreement before Eid,” he said.
To a question about US Secretary of State Mike Pompeo’s statement that he hoped to have a peace deal by September 1, Shaheen said he was hopeful an agreement could materialize even before that as “we want to end bloodshed and destruction in our country.”
“The ball is in their (US) court,” Shaheen said. “They should come up with a reasonable offer.”