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The International Court of Justice renders its judgment in the Jadhav case (India v. Pakistan)

Published on July 18, 2019        Author: 
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On 8 May 2017, India instituted proceedings before the International Court of Justice (ICJ) against Pakistan, accusing the latter of ‘egregious violations of the Vienna Convention on Consular Relations’ (VCCR) (p. 4). The dispute concerns the treatment of an Indian national, Mr. Kulbhushan Sudhir Jadhav, who was detained, tried and sentenced to death by a military court in Pakistan.

In this post, I will give a brief overview of the background of the case and the claims submitted by India, followed by the provisional measures decision and the judgment on jurisdiction, admissibility and merits, pronounced in open court on 17 July 2019.

Application instituting proceedings

In its Application, India claimed that, on 3 March 2016, Mr. Jadhav was ‘kidnapped from Iran, where he was carrying on business after retiring from the Indian Navy, and was then shown to have been arrested in Baluchistan’ (para. 13) on suspicion of espionage and sabotage activities.  India stated that it was not informed of Mr. Jadhav’s detention until 22 days after his arrest and Pakistan failed to inform Mr. Jadhav of his rights under the VCCR. Allegedly, the Pakistani authorities refused to give India consular access to Mr. Jadhav, despite repeated requests. Read the rest of this entry…

 

Settling the India-Pakistan Impasse … At Last

Published on March 8, 2019        Author: 
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I am grateful for Christian Henderson’s careful, detailed post on the violent confrontation between India and Pakistan that began 26 February. By 3 March direct attacks between the neighbors had tapered off, in part owing to Pakistan’s release of the Indian Air Force pilot it detained after his jet crashed in Pakistan. On the Indian side of the border a harsh crack down continued against separatists — both those seeking accession to Pakistan and those seeking independence.

My own legal assessment of the direct attacks aligns with Christian’s suggestion that they constituted unlawful armed reprisals, not acts of lawful self-defense. (I discussed the prohibition on reprisals here in reference to the U.S., France, and UK’s air strikes on Syria last April.) Christian’s quote from Pakistan’s Acting Foreign Secretary was particularly revealing: Pakistan’s air strikes “[s]ole purpose being to demonstrate our right, will and capability for self defence.”

More proof could be offered, but the space is better used to note some points of difference between Christian and me and to suggest a way forward toward peace after 70 years of violence. In my view, India was the first to use force in clear violation of UN Charter Article 2(4). This serious violation committed against Pakistan just a few months before Indian national elections, could be the opening of a negotiated settlement of the conflict at the heart of the crisis, the dispute over Kashmir. Read the rest of this entry…

Filed under: Use of Force
 

Tit-for-Tat-for-Tit: The Indian and Pakistani Airstrikes and the Jus ad Bellum

Published on February 28, 2019        Author: 
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Over the past few days there has been a flurry of confusing reports regarding military confrontations between India and Pakistan in the Kashmir region. It appears that in the early hours of 26 February Indian air force MiG-20s carried out air strikes in Pakistani territory in the small city of Balakot in response to a suicide bombing in Indian controlled Kashmir on 14 February which took the lives of over 40 Indian paramilitary soldiers and for which Pakistani based terror group Jaish-e-Mohammad (JeM) claimed responsibility. India claimed that it hit a JeM militant training camp during the strikes with a significant number of militant casualties, while Pakistan claimed that the Indian aircraft retreated after being confronted by the Pakistan Air Force, dropping four or five bombs in open field as they left across the border and which resulted in no causalities. While there have been several border skirmishes between the two states since they gained independence from Britain in 1947, this is the first time Indian military aircraft have carried out strikes across the ‘line of control’ since the war between them in 1971 which led to the creation of Bangladesh.

The following day Pakistan claimed to have carried out air strikes on ‘open ground’ within Indian territory, while India claimed that a military installation had been targeted. During an ensuing confrontation, Pakistan shot down an Indian Air Force MiG-21 jet which fell within Pakistani territory and led to the capture of the pilot. India has also claimed to have shot down a Pakistani fighter jet which had fallen on to the Pakistani side of the LoC. The US, EU, Russia and China have all called for restraint.

While clearly a dangerous development between two nuclear-armed states, with various accounts of underlying political motives for the clashes, and with shelling continuing across the LoC between them at the time of writing, it is, however, the legal justifications – or, rather, lack of – by both states for their strikes that will be the focus here.

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India’s Strange Position on the Additional Protocols of 1977

Published on February 5, 2019        Author: 
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After four decades of their adoption, India continues to have an ambivalent position on the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, and the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977. India has not yet become a party to the two Additional Protocols (APs). While it has not explained anywhere its position for not becoming a party, its recent clarification in the form of an answer in the Indian parliament does not provide any reasons for not becoming a party to the APs. This clarification came in the way of a response by the Minister of State for External Affairs to a question posed in the lower house of the Indian Parliament on 02 January 2019. The question posed by a Member of the Parliament sought clarification as to whether steps have been taken to ratify the APs and if not, what are the reasons for not becoming a party, if necessary, with reservations. The question posed by a Member of the Indian Parliament is as follows:

(a) whether steps have been taken to ratify the Additional Protocol I and II to the Geneva Conventions;

(b) if so, the details thereof and the steps taken to bring domestic laws in compliance with the Protocols; and  

(c) if not, the reasons for abstaining in spite of the availability of the option of ”ratification with reservations”?

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