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Why International Law Matters, from Kulbhushan Jadhav to Kashmiri Human Shield - the Wire

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Why International Law Matters, from Kulbhushan Jadhav to Kashmiri Human Shield - the Wire 5/7/2018 Why International Law Matters, From Kulbhushan Jadhav to Kashmiri Human Shield - The Wire BECOME A SUBSCRIBE SUPPORTER POLITICS ECONOMY EXTERNAL AFFAIRS SECURITY LAW SCIENCE SOCIETY CULTURE OPINION VIDEOS HINDI URDU DIPLOMACY Why International Law Matters, From Kulbhushan Jadhav to Kashmiri Human Shield Hopefully the Jadhav matter will encourage Indian policy makers to take international law and its obligations and institutions more seriously, rather than as an encumbrance or distraction. https://thewire.in/diplomacy/icj-india-kulbhushan-jadhav-human-shield-kashmir 1/23 5/7/2018 Why International Law Matters, From Kulbhushan Jadhav to Kashmiri Human Shield - The Wire Kulbhsuahn Jadhav (left) seen in a screengrab from the 'confessional' video released by the Pakistani military last year; Farooq Ahmaed Dar (right), a Kashmiri shawl weaver who was turned into a 'human shield' by Indian army soldiers in April. Siddharth Varadarajan https://thewire.in/diplomacy/icj-india-kulbhushan-jadhav-human-shield-kashmir 2/23 5/7/2018 Why International Law Matters, From Kulbhushan Jadhav to Kashmiri Human Shield - The Wire D I P L O M A C Y E X T E R N A L A F F A I R S L A W P O L I T I C S R I G H T S 22/MAY/2017 Two Indian citizens have recently been victims of the violation of international law by men in uniform but officials of the government of India, and the nation at large, seem to be fighting only for the rights of one and not the other. On April 10, Kulbhushan Sudhir Jadhav, a former Indian naval officer who had been arrested, kept in custody and put on secret trial by the Pakistani military without being allowed to meet Indian diplomats, was sentenced to death. This was a violation of the Vienna Convention on Consular Relations (VCCR), under which Pakistan was obliged to allow India consular access to Jadhav. India took Pakistan to the International Court of Justice over this violation of international law. In its submissions to the court in The Hague, the Indian government also invoked the International Covenant on Civil and Political Rights (ICCPR) which says nobody can be arbitrarily deprived of his life. Much to the relief of people in India, the ICJ accepted India’s plaint and ordered Pakistan to stay Jadhav’s execution till the final disposition of the dispute by the court. On April 9, Farooq Ahmed Dar, an artisan and weaver of shawls, was abducted and taken hostage by a group of Indian soldiers in the Budgam area of Jammu and Kashmir. He was one of just 88,951 people – 7% of the electorate – to have voted in the by-election for the Srinagar parliamentary seat. The soldiers tied Dar to the front of their jeep and drove him around the district for several hours, warning bystanders on a loudspeaker that this would be the fate of anyone caught throwing stones on the security forces. The use of a civilian as a hostage, or ‘human shield’, was a violation of the right to life and liberty enshrined in the Indian constitution. It was also a violation of international https://thewire.in/diplomacy/icj-india-kulbhushan-jadhav-human-shield-kashmir 3/23 5/7/2018 Why International Law Matters, From Kulbhushan Jadhav to Kashmiri Human Shield - The Wire law, since India is a party to the Geneva Conventions of 1949. Though the conventions deal with war crimes committed during an international conflict, common article 3 prohibits the targeting of civilians in conflicts that are ‘not of an international character’: “The following acts are and shall remain prohibited at any time and in any place whatsoever with respect to [persons taking no active part in the hostilities] … (b) the taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment.” The ICCPR, which India cited in The Hague also applies in Dar’s case: “No one shall be subjected to arbitrary arrest or detention… No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Six weeks have passed since the soldiers concerned committed this “outrage upon [the] personal dignity” (Article 9) of Dar, in particular, subjecting him to “humiliating and degrading treatment” (Article 7), but the army’s inquiry into the violation of domestic and international law has still not concluded. Meanwhile, the Indian attorney general has defended the commanding officer’s decision to seize a civilian as a hostage and use him as a human shield. The chief minister of Punjab, Amarinder Singh, a respected politician and a former army officer himself, went one step further and suggested the officer should be given a medal for his “tough action”. On May 22, the army announced that the officer had been given an award by the army chief. How does one explain the different trajectories these two violations of international law have taken in both official and public discourse? Misplaced nationalism provides only part of the answer, because even the decision to move the ICJ in the Jadhav case was taken – as Ambassador Hardeep Puri informs us – reluctantly and with a lot of trepidation. https://thewire.in/diplomacy/icj-india-kulbhushan-jadhav-human-shield-kashmir 4/23 5/7/2018 Why International Law Matters, From Kulbhushan Jadhav to Kashmiri Human Shield - The Wire Jadhav and Dar may lie at two ends of the political spectrum but the fact is that the Indian government has never taken international law and its institutions and obligations very seriously. If anything, the Indian state – and the commentariat at large – have traditionally been suspicious of international law, regarding it as some sort of a trap. Beyond the temporary reprieve it granted to Jadhav, the ICJ’s decision to accept India’s request for provisional measures in the case is significant because it has finally opened the door to a national debate on the place of international law and international humanitarian law in Indian policymaking. India and the ICJ, a chequered history https://thewire.in/diplomacy/icj-india-kulbhushan-jadhav-human-shield-kashmir 5/23 5/7/2018 Why International Law Matters, From Kulbhushan Jadhav to Kashmiri Human Shield - The Wire Members of the International Court of Justice on May 18, 2017, the date they delivered their judgment in the Indian case against Pakistan. Credit: UN Photo/ICJ-CIJ/Frank van Beek. Courtesy of the ICJ. All rights reserved. https://thewire.in/diplomacy/icj-india-kulbhushan-jadhav-human-shield-kashmir 6/23 5/7/2018 Why International Law Matters, From Kulbhushan Jadhav to Kashmiri Human Shield - The Wire On April 13, three days after Pakistan announced it had sentenced Jadhav, to death for espionage, I took part in a television discussion on India’s options. Given Islamabad’s refusal to grant Indian diplomats access to Jadhav – and the fact that both India and Pakistan were parties to the VCCR’s Optional Protocol giving the ICJ jurisdiction in disputes over the convention’s implementation – I said India should take Pakistan to the world court. I mention this not to claim prescience or special wisdom for making a suggestion that was obvious – though The Wire was the first to flag the centrality of the VCCR when the Jadhav issue surfaced in March 2016 and ran the first piece in the media on the role international law could play in India moving forward. Rather, my aim is to draw attention to the response a retired Indian diplomat on the panel had to my suggestion. The diplomat, who had spent long years dealing with Pakistan during his time at the Ministry of External Affairs, shook his head disapprovingly at my mention of the ICJ. “We ourselves have never gone to the court”, he said. Going there would “open a window to all kinds of trouble for ourselves,” he added. While this is no doubt his personal view, he was reflecting the suspicion of international legal institutions that runs deep in Indian officialdom. The fact is that there is no danger of any “window to all kinds of trouble” being opened up. India acted wisely in narrowly establishing the grounds on which it approached the ICJ. India can always be taken to the court for similar breaches of the VCCR but there is no question of broader disputes – Kashmir, for example – ever reaching the ICJ unless India voluntarily chooses to go down that path. Of course, Pakistan can push for arbitration of the Sir Creek dispute since India has not, for now at least, disavowed the dispute resolution provisions of the UN Convention on the Law of the Sea – but that has been the case since 1982. Win some, lose some If Indian officials felt nervous about approaching the ICJ in the Jadhav matter, this is because India has had a chequered history at The Hague. The first time it was called to the ICJ was in 1955. Portugal accused India of acting illegally in restricting the passage of Portuguese civilians and military personnel between its colonial enclaves of https://thewire.in/diplomacy/icj-india-kulbhushan-jadhav-human-shield-kashmir 7/23 5/7/2018 Why International Law Matters, From Kulbhushan Jadhav to Kashmiri Human Shield - The Wire Dadra and Nagar Haveli and Daman. In April 1960, the court decided the case in India’s favour. Perhaps emboldened by this decision, India went ahead and signed the Indus Waters Treaty with Pakistan in September 1960, which allowed for international arbitration in the event of a dispute between the two countries. The same spirit of optimism governed India’s decision to initiate a contentious case at the ICJ eleven years later.
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