Is ICJ a viable option for Pakistan?

The law cannot provide freedom unless it is given by the people. Kashmir is the prime example of this argument. Kashmir’s quest for freedom has now been ignored by the world, as the West refuses to exert pressure on its regional Indian ally. This situation poses a potent challenge to Kashmiris’ struggle for the right to self-determination. After Indian government scrapped Article 370 there have been reports of mass human right violations by the Indian army over the general Kashmiri population. There have been false reports on Twitter, Facebook and all social media platforms portraying Kashmiris as happy with the current government.

However, those who are involved in such false propaganda fail to appreciate the fact that it doesn’t really take a genius to find out what happens when freedom is taken away in the darkness of the night. An intriguing question that a sensible person may ask is why did India strip Article 370? Is this only a tale of revenge or is there some other economic agenda hidden behind the veil of such a decision? Let’s have a look. Kashmir’s significance in the international geopolitical world has grown exponentially. The strategic position it holds has become a large topic of discussion at the dinner table of the think tanks and politicians. If India has full control of Kashmir, then it will have direct access to Central Asia. Pakistan however, is the only hurdle which India has to confront in order to be the political leader of South Asia. India has, however, taken its first step to overcome the big rock (Pakistan) in its way. By scrapping Article 370, India has taken a part of Kashmir and now India has it eyes set on Azad Kashmir.

The fact that India has taken over Kashmir is big sign of its future agenda. While China is backing Pakistan, it cannot do much when it comes to the Security Council and voting powers. Central Asia is a geographical bridge which lies between Europe and other parts of the world, therefore, having direct access will definitely make India stronger than ever before. The majority of Muslims in Kashmir can never allow India’s dream to have control over Central Asia come true. Therefore, by ethnically cleansing the entire Muslim population or destabilising or restructuring the region’s demography is the only way for India to achieve its nefarious designs.

In order to achieve its designs, India has already started its legal massacre or legal genocide. This kind of genocide happens when state somehow legalises the killing of a mass population with their own armed forces. Now the question that arises is what Pakistan can do about it. Pakistan tried its best to resort to the Security Council but only China backed Pakistan on the Kashmir agenda. The only way Pakistan can get justice for Kashmiris is to move the International Court of Justice. Let’s have a little legal analysis on whether Pakistan has a locus standi.

There are two ways in the ICJ statute under which Pakistan can take the Kashmir issue to the ICJ; one is Article 36 (1) and second is Article 36 (2). Article 36 in Chapter II of the ICJ Statute lays down the rules for invoking the Court’s jurisdiction. Pakistan might go to ICJ under Article 36 (1) which reads as follows: “The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.”

The first hurdle for Pakistan is to establish the fact that state is a party to the dispute. In Northern Cameroons case it was held that there has to be a dispute there has to be a presence of dispute of legal nature and not a political nature.

Pakistan can say that the fact that India took over Kashmir and is now threatening to take over Pakistan side of Kashmir give rise to dispute of legal nature. The recent case of Kulbhushan Jadhav can be set as an example where the ICJ has intervened in a country on sovereign matter with request of other party. Pakistan can claim that India’s hostile decision has adversely affected Pakistan’s status quo in Azad Kashmir and therefore Pakistan’s right has been violated. Pakistan can easily cross the first hurdle of establishing status quo. However Pakistan needs to be careful when it come to second hurdles.

The second hurdle or argument which India can raise is that it does not have any agreement with Pakistan to settle disputes in the ICJ. Well if that is the case, then Pakistan can rightly argue that the decision of Jadhav is void as there was no agreement, so Pakistan is not obliged to really entertain the decision of the ICJ on consular access. The principle of state consent is a focal point in the matter. But after the Jadhav case, the scenario has somewhat changed and the ICJ has rightly overstepped its jurisdiction and its decision is in direct conflict with the state consent theory.

Kashmir was an independent state and its legitimacy was conferred by Article 370 of India’s Constitution. It worked as a bridge between India and Kashmir. The fact that it’s no longer there makes Kashmir a fully independent state and therefore by locking up Kashmir is in itself a breach of human rights.

Even though there has been a case where it was said that jus cogen has no effect on Article 36, this precedent is not a rule of thumb and can be overturned if Pakistan can show (and it’s highly likely that Pakistan will be successful in showing) that its sovereignty is at stake — giving Pakistan a right to apply to the ICJ.

India might have opened a Pandora’s Box in the Kulbhushan Jadhav case. Pakistan can take India to ICJ not only with Kashmir issue but all the issues it has pending so far.

On the other hand, Pakistan can also apply to International Criminal Court (ICC). The ICC is designed or established to punish individuals responsible for heinous crimes against humanity or genocide and so on. The ICC is less universal, but deals with international criminal law. While it has a very narrow scope of crimes, it can prosecute war crimes, genocide, crimes against humanity and perhaps aggression. Criminal law holds individuals liable for acts (a ‘state’ can’t be criminal as such, because it’s an abstract notion). The fact that the Modi government and its decision are responsible for such mass killings, the RSS and BJP may be prosecuted under ICC rather than ICJ. This is one of the avenues which Pakistan still needs to explore. India is not a party to the ICC. The major objections of India to the Rome Statute are: Since ICC is subordinate to UNSC, permanent members are vested with unbridled powers. Terrorism and nuclear weapons’ usage is not in the purview of ICC. There is criticism that India, on signing up with the Rome Statute, would immediately come under ICC jurisdiction for human rights violations under AFSPA, abuses in the Naga movement and the Kashmir dispute.

The writer is a London-based lawyer.