India requested ICJ for stay against Kulbhushan's sentence in Pakistan

[Sully3]

This step by India is a major blunder at best or sinister at worst.




Going to The Hague: India and ICJ, the big picture
The govt is open to taking the Capt Saurabh Kalia case to International Court of Justice. SUSHANT SINGH examines the facts, issues.

Written by Sushant Singh | Published:June 4, 2015 12:45 am
Captain Saurabh Kalia. (Illustration: Pradeep Yadav)
What is the International Court of Justice (ICJ)?

Based in The Hague in Netherlands, this 15-judge court was established in 1945 by the United Nations Charter. The statute of the ICJ regulates the functioning of the Court. All members of the UN are automatic parties to the statute, but this does not automatically give ICJ jurisdiction over disputes involving them. The ICJ gets jurisdiction only on the basis of consent of both parties.

Where does India stand vis-a-vis dispute resolution at ICJ?

In September 1974, India declared the matters over which it accepts the jurisdiction of the ICJ. This declaration revoked and replaced the previous declaration made in September 1959. Among the matters over which India does not accept ICJ jurisdiction are: “disputes with the government of any State which is or has been a Member of the Commonwealth of Nations”, and “disputes relating to or connected with facts or situations of hostilities, armed conflicts, individual or collective actions taken in self-defence…”. The declaration, which includes other exceptions as well, has been ratified by Parliament.

Has India ever taken as case to the ICJ?

Yes, once — even though it has been a party to a total five cases, three of them with Pakistan, at the ICJ. In 1971, India filed a case against the jurisdiction of International Civil Aviation Organisation (ICAO) to decide on Pakistan’s demand that India could not deny it overflight and landing rights. India had withdrawn Pakistan’s overflight rights after the January 1971 hijacking of an Indian Airlines flight to Lahore, and the gutting of the aircraft by the hijackers. The ICJ ruled against India, saying that ICAO had jurisdiction in this case.

In 1954, Portugal had filed a case against India over denial of passage to what were then the Portugese territories of Dadra and Nagar Haveli. ICJ decided in India’s favour in 1960, saying India’s refusal of passage was covered by its power of regulation and control of the right of passage of Portugal.

In 1973, Pakistan filed a case to stop the repatriation to Bangladesh of 195 Pakistani nationals in Indian custody after the 1971 War, to face trial on charges of genocide, but withdrew the case the next year. After 1974, Pakistan, a Commonwealth nation, can no longer take India to the ICJ.

Didn’t Pakistan also take India to the ICJ in 1999?

Yes, after India shot down a Breguet Atlantique patrol plane of the Pakistan Navy in Indian air space over the Rann of Kutch. India contested the case, and the ICJ upheld India’s position that the Court had no jurisdiction to entertain Pakistan’s claim.

What is the Capt Saurabh Kalia case?

Captain Saurabh Kalia was the first Indian Army officer to observe and report largescale Pakistani intrusion on the Indian side of LoC in Kargil. His patrol, comprising five other soldiers, was captured by the Pakistan army on May 15, 1999. Their bodies were handed over on June 9, 1999. Post mortem examinations showed evidence of brutal torture: the men had been burnt with cigarettes, their ear drums pierced with hot rods, their eyes punctured before being removed, their skulls fractured, and their limbs and private parts chopped off before they were shot dead.

India has raised the issue with Pakistan as a violation of the rights of PoWs under the Geneva Convention, but to no avail. Replying to a question in Parliament last July, V K Singh, MoS for External Affairs, had said: “The possibility of seeking legal remedies through the international courts was also thoroughly examined but not found feasible.”

Kalia’s father filed a PIL in the Supreme Court last year, asking the Indian government to take the case to the ICJ. The government filed an affidavit in December saying the ICJ had no jurisdiction over disputes between India and Pakistan, and that a PIL could not seek action against a foreign country, as foreign policy is a government function.

What has the government said now?

Earlier this week, External Affairs Minister Sushma Swaraj said that if the Supreme Court gave permission, the government would approach the ICJ. “The Centre will be requesting the Supreme Court to pronounce a verdict on the legality of the stand, taking into account the exceptional circumstances. The Centre will be open to invoking the jurisdiction of the ICJ,” the MEA spokesperson added.

What does this position imply?

It is India’s own law, ratified by Parliament, which denies the ICJ jurisdiction over this matter. Even if the Supreme Court asks the government to move the ICJ, it is highly unlikely that Pakistan will accept the Court’s jurisdiction in this case. Also, going to the ICJ can theoretically open up all cases between India and Pakistan to multilateral jurisdiction, thus weakening New Delhi’s consistent stand that all issues with Islamabad would be resolved bilaterally. Once India has accepted ICJ’s jurisdiction over bilateral issues, Pakistan could well demand that the ICJ arbitrate on alleged human rights violations in Jammu and Kashmir, or military operations on the Line of Control, or any other issue.


http://indianexpress.com/article/explained/going-to-the-hague-india-and-icj-the-big-picture/

INDIANS need to read this post

 

[Dil Pakistan]

It is really sad that Pakistan state will not act on its own accord to do the right thing. We are just trying to protect our citizen who our govt. thinks is innocent. That's the least we can do in this case. Since you guys would not give consular access, we had to resort to ICJ to intervene. Lets see how it pans out.

Myself, I don't have much hope in your judicial process after how you conducted the 26/11 trial of Lakhvi and others. Only recently you guys put Hafeez Saeed in house arrest after much international pressure. He was given free reign to conduct his hate campaign just to spite us.

Your citizen has admitted to be involved in killing my fellow countrymen. This is called aiding and abetting terrorism, which my country has claimed for a long time.

This is also a crime under the international law - so do not put your money on ICJ saving his ***.

 

[Pakistan First]

When it comes to Spies, Espionage and Terrorism, ICJ can give whatever stay order it wants.

The Monkey is going to be hanged.

 

[Dil Pakistan]

Pakistan has a GOLDEN CHANCE to use ICJ to nab India and to dismantle ALL her terrorist framework.

This is what we should do.

When it comes to Spies, Espionage and Terrorism, ICJ can give whatever stay order it wants.

The Monkey is going to be hanged.

As per its name, ICJ has been established to punish those involved in heinous crime - such as Mr Jadev.

 

[arbit]

To summarise, If pakistan does not abide by the ICJ, this would reflect upon the Indus water treaty.
They would better cry to China to help them in that case, cos we aren't gonna play ball on any of their calls to invite arbitration.

 

[Jackdaws]

Your citizen has admitted to be involved in killing my fellow countrymen. This is called aiding and abetting terrorism, which my country has claimed for a long time.

This is also a crime under the international law - so do not put your money on ICJ saving his ***.

Admitted, yes but from the face of it, under duress. Most judicial systems would not accept that statement as legal.

I

To summarise, If pakistan does not abide by the ICJ, this would reflect upon the Indus water treaty.
They would better cry to China to help them in that case, cos we aren't gonna play ball on any of their calls to invite arbitration.

IWT has a completely different mechanism. But India has been denying medical visas to Pakistanis and all other visas too. If Pakistan had any proof about Jadhav, they would have gone to every international forum and created a media circus.

 

[Dil Pakistan]

To summarise, If pakistan does not abide by the ICJ, this would reflect upon the Indus water treaty.
They would better cry to China to help them in that case, cos we aren't gonna play ball on any of their calls to invite arbitration.

oopppsseee daisy - meri jan! it will not get to that stage.

All the Indian on thread are very keen to reach to the conclusion.

It will not get to the stage of any treaty. The lawyers will shred India's case in ICJ into pieces. ICJ will have to hang its head in shame that she has tried to protect a terrorist involved in the killing of common people.

Remember! Pakistan has submitted two dossiers on Indian terrorism to UN. Both can be submitted to ICJ without having to change a comma.

 

[Fledgingwings]

All this blah bah blah on media about him is useless to talk and listen.HE,S DONE !!!

 

[Dil Pakistan]

Admitted, yes but from the face of it, under duress. Most judicial systems would not accept that statement as l

Very clearly you need to read and understand the law. It is not as simple as you think.

It is just not a simple admission. The admission is supported by evidence

 

[JOEY TRIBIANI]

We should take Kashmir human rights violation issue to icj .asap .
.
.
Lets put kulbushan for good use

 

[Dil Pakistan]

We should take Kashmir human rights violation issue to icj .asap .
.
.
Lets put kulbushan for good use

....and Indian terrorism in Balochistan.

....and Indian terrorism in tribal areas via Afghanistan.

In the end we may be able to show the world that it is actually India that has supported Talibans and other terrorists in Afghanistan.

After this, make a move in UN to declare India a terrorist state.

Pakistan should tell ICJ that "We welcome this move and we would like to present our case. Please allow us".

 

[arbit]

IWT has a completely different mechanism. But India has been denying medical visas to Pakistanis and all other visas too. If Pakistan had any proof about Jadhav, they would have gone to every international forum and created a media circus.

Yes IWT has a different mechanism but one doesn't dismiss ruling by one international authority while hankering to follow another. Doesn't work that way.
As far as medical visas go, i really don't think much of this issue. We are enemy countries, they should send their patients to friendly countries.

 

[Tom M]

a fair trial in case of a spy is not an open trial but a trial in which the accused is given right to defend himself. no where in the above mentioned conditions is an open trial mentioned. we triad him before sentencing him completing all Geneva convention and Vienna convention obligations.
he has been proved guilty at our court of law. we are not obliged to prove him guilty in Indian court of law. we have no obligation to trial him under any international law when we have our own law. According to international law this isn't a dispute which comes under OCJ juristriction. we don't have plan to do it volunteerily either. our stance is quite simple.
1. according to bilateral agreement between India and Pakistan spies cannot be given consular access.
2 kalboshan have been given a chance to prove himself innocent in free and fair trial.
3. ICJ have no right to interfere in our country judicial system.
4. previously many countries including India have done same to the spies. India and Pakistan law against spies is exactly the same which means India cannot take up the issue of any so called bugs in our law.
5. kalboshan have been given the right to appeal and the he can also appeal to army chief followed by president.
6. kalboshan have confessed his crimes in front of the judge. he is not innocent. all the military court proceedings were recorded.
7. copy of charge sheet is still available in media.
8. when you said that you agree that we have to prove him guilty in our court than you should have realized that the game is over for kalboshan. we have already proved him a spy and a terrorist in our court.

Forget Kulbushan Yadhav and his case for a while. But if you don't know a thing or two about free and fair trail. Just read the following.

https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule100

(i) Right to defend oneself or to be assisted by a lawyer of one’s own choice.
(ii) Right to free legal assistance if the interests of justice so require.
(iii) Right to sufficient time and facilities to prepare the defence.
(iv) Right of the accused to communicate freely with counsel.

But a secret military court may be everything but fair. Even your parliament was caught buy surprise when the news about the sentence came out, no one in Pakistan even new that a trail was actually underway. LOL, so much so for your fair trail.

http://dailytimes.com.pk/pakistan/1...-board-on-matter-of-kulbhushan-khursheed-shah

https://www.hrw.org/news/2017/03/20/pakistan-dont-reinstate-secret-military-courts

Regarding your 7th pint, Can you please share the same certified copy of the Charge sheet which you claim to be available with your media houses here ?? If not I will have to say that you are saying nothing but a BLATANT LIE.

 

[fahad99malik]

so india is going to take its own monkey to the international court? isn't it great idea to tell the world about india's state sponsored activities in Pakistan? They just make their public fool.lol #Surgical Strike Drama

 

[boxer_B]

If what you say is applicable then all the cases disposed on the basis of confessional statement are null and void since partition.

As per Pakistan Law
Confession
Confession means an admission of certain facts which constitutes an offence. Statement of accused becomes confession only when recorded in compliance of the provisions of S. 164 and 364 of Cr.P.C. after observing necessary precautions and formalities.

Procedure which magistrate must adopt while recording confession

• As soon as person is produced before a magistrate for getting his confession recorded followings are things which magistrate must observe;
• His handcuffs should be removed
• All the police officers shall be turned out of court room
• He should be informed that he was before a magistrate and that whether he made any statement or not, he will not be handed back to the police but will be sent to the judicial lockup.
• He should be given sufficient time to ponder over the matter
• He should be warned that he was not bound to make any statement and if he did so it may be used as evidence against him.

Questions to be asked by Magistrate
Following question must be put to person by magistrate;

• For how long have you been with the police?
• Has any pressure been brought to bear upon you to make a confession?
• Have you been threatened to make a confession?
• Has any inducement been given to you?
• Have you been told that you will be made an approver?
• Why are you making this confession?

Important Characteristics of Confession in light of Case Laws
Confessional statement of accused must be supported and corroborated through some independent and reliable evidence to reply upon same for his conviction (2008 P.Cr.L.J. 507)

Confessional statement of an accused when is to be believed has to be considered in its entirety and the portion of the statement favoring the accused is not to be ruled out of consideration. (PLD 2001 Quetta 33)

Confession of one accused would not be sufficient to prove innocence and non-involvement of other accused in commission of murder when it appears that confessing accusing made confession to save lives of other co-accused who happens to be his sons. (2001 P.Cr.L.J. 301)

Confessional statement cannot be used against an accused if the same is not put to him while recording his statement u/s 342 Cr.P.C. (2007 P.Cr.L.J. 276)

All questions put to the accused and his answers thereto must be recorded in writing. (PLD 1994 Pesh. 102)

Confessional statement of accused must be supported and corroborated through some independent and reliable evidence to rely upon same for his conviction. (2008 P.Cr.L.J. 507)

Exculpatory confessional statement cannot be used against co-accused for the purpose of conviction. (2008 P.Cr.L.J.)

Confessional statement of one accused can be used as a corroborative piece of evidence against other accused. (NLR 2003 A.C. 1)

Confession recorded on Oath
Confession recorded on oath is inadmissible. (PLD 2005 Pesh. 46)

Retraced Confession
Confessional statement although retracted would be sufficient piece of evidence for conviction if it is found true, voluntary and having not been obtained by coercion, inducement of torture. (PLD 2005 S.C. 168)

Confession before Police Officer
If confession is made by the accused before police officer then it becomes his duty to get his confessional statement recorded before the competent magistrate otherwise such confession is not admissible in evidence. (2008 MLD 430)

In his case all the requirements of law have been fulfilled and as he was captured by Pakistan Army he was tried according to international conventions under army act.

Beautifully put.

Usually confession in front of Magistrate is seen through accused which is near and dear of victim.
This may be due to regret or emotional breakdown of accused after crime.

However, there is no reason for spy to confess before Magistrate without any material evidence.
Conversely, this case should have been based on material evidence in first place rather confession.

Usually criminals confess in judicial custody but takes U turn in court. That's why LEA usually needs proof to nail the culprit.

Even Kasab's actions were recorded on video and then India asked voice samples of his handlers from Pakistan to which Pakistan refused.