The term “lawfare” was coined in 2001 by Major General Charles J. Dunlap, Jr. He defined it as a method of warfare where law is used as a means of realising a military objective. Today, the most refined definition of the term is “the strategy of using – or misusing – the law as a substitute for traditional military means to achieve an operational objective.”
The grandeur and dignity of the judicial proceedings in the Kulbhushan Jadhav case at the International Court of Justice last month is a salient example of the contours of modern-day lawfare battlefields.
The four-day-long proceedings unfolded sandwiched between two events that stand in stark contrast with this image – the violence and horror of the attack by Pakistan-based Jaish-e-Mohammed (JeM) on Central Reserve Police Force personnel in Pulwama on February 14, followed by the Indian Air Force’s ‘non-military, pre-emptive’ airstrikes targeted at a JeM camp in Pakistan’s Balakot on February 26.
Indeed, these events are indicative of the multi-dimensional strategies necessitated by the hostilities that characterise India-Pakistan relations. India’s conventional military superiority over Pakistan has been demonstrated more than once, and the “Surgical Strike 2.0” demonstrated, yet again, India’s capacity to retaliate against sub-conventional warfare tactics.
However, today’s lawfare battles demand a recalibration of the rules of engagement. In order to succeed, India must be able to leverage existing law to achieve military objectives, without the use of kinetic force.
At closing arguments, Harish Salve, arguing on India’s behalf, asked the court to order Jadhav’s release from detention in Pakistan “in the interest of justice, of making human rights a reality”. We witnessed him bravely withstand, and calmly rebuff, lawyer Khawar Qureshi’s attacks against him for, among other things, having “murdered the English language”.
Whether Salve’s demonstrated ability to withstand the violence of language inflicted upon him will triumph over Qureshi’s language of violence, to result in Jadhav’s release, remains to be seen. In the interim, as we anxiously await the ICJ judgment, let us not be distracted by the seductive eloquence of the Queen’s English or her counsel, and focus on what should, and will, form the basis of the court’s decision – the applicable law.
I. Admissibility of the application
Due to the fact-dependent nature of the objections to admissibility raised by Pakistan, it would not be appropriate to comment on the issue without full and complete knowledge of the facts not in the public domain.
Where both parties have levelled serious allegations of attempts by the other to sow discord and finance terror on the territory of the other, the principle of sovereign equality should prevent the court from making any radical departures from its firmly established jurisprudence.
Such arguments on abuse of process and the doctrine of unclean hands have never been accepted to rule against the admissibility of an application. Those of the 16 judges who consider the application admissible will proceed to examine the case on its merits.
The central issue in the case is whether the question of Pakistan’s breach of, or compliance with, its international obligations is to be decided on the basis of provisions of Article 36 of the Vienna Convention on Consular Relations (VCCR) or the 2008 Bilateral Agreement on Consular Access between India and Pakistan (the 2008 Agreement).
Article 36 of the VCCR
India has argued that the obligation under Article 36 of the VCCR to provide consular access to foreign nationals arrested or detained by a receiving state is a non-derogable treaty obligation, and must be discharged without undue delay.
It also contended that Article 36 is an obligation erga omnes and therefore, admits of no exceptions even for cases where espionage is alleged by the receiving state. This proposition has the effect of grouping espionage offences with all other ordinary crimes and appears to militate against India’s security interests beyond Jadhav. Yet, we go one step further to submit that more serious charges necessitate more stringent procedural safeguards – this means the more serious the charge against the foreign national, the more urgent the obligation to notify the sending state and grant consular access.
The discussions on Article 36 in the travaux préparatoires offer an insight into the receiving state’s perspective. Although the travaux are a supplementary tool for interpretation of the VCCR, they have been rather neglected in the drafting of our written submissions. The travaux to Article 36 indicates that the provision envisages such a situation where the term “undue delay” could possibly be left to the discretion of the domestic law of the receiving state.
In a narrow set of circumstances, the receiving state may require some more time and leeway to carry out an investigation to determine facts, the seriousness of charges to be framed and whether the alleged offence endangers its national security. We must stop to consider whether, as a receiving state to many foreign nationals, India would be willing to provide immediate consular access to those placed in preventive detention or arrested on suspicions of espionage or other national security offences?
We must stop to consider whether, as a receiving state to many foreign nationals, India is willing to provide immediate consular access to foreign nationals placed in preventive detention or arrested in India on suspicions of espionage or other offences against national security?
Consistent with her factual assertions, India has presented no arguments to support the legality of espionage under international law.
Despite limited scholarship on the legality of espionage under international law, a reference to the Lotus principle in arguendo would not have been out of place. The “Lotus principle” is shorthand for the proposition that states have a right to do anything that is not expressly prohibited by international law. However, the limits of its applicability may arguably be restricted by the laws of the receiving state, in accordance with Article 36(2) of the VCCR.
The 2008 Bilateral Agreement on Consular Access
India submits that the 2008 Agreement has no bearing on the dispute between the parties. On the other hand, Pakistan argues that the 2008 Agreement is a later treaty between the parties and therefore, validly enforceable between them.
Paragraph (vi) of the agreement allows both states to examine a case on its merits when an arrest or detention is made on political or security grounds. India suggests that such an examination of ‘the case on merits’ is bounded by the obligations erga omes contained in Article 36 of the VCCR.
However, India has not argued that the 2008 agreement stands nullified on account of Pakistan’s actions. In fact, India could not have pursued such a line of argument – the treaty has been reaffirmed in its actions several times.
India and Pakistan exchange a list of civilian prisoners and fishermen on January 1 and July 1 every year. As recently as January 2019, India declared 249 Pakistan civilian prisoners and 98 fishermen in its custody, while Pakistan shared a list of 54 civilian prisoners and 483 fishermen in its custody who are Indians or believed to be Indian.
Principles of treaty interpretation
Unsurprisingly, Pakistan argued that the 2008 Agreement is valid and permissible within the meaning of Article 73 of the VCCR, as it ‘supplements’ and ‘amplifies’ the two states’ obligations under Article 36.
On this limited question, it is rather infuriating to observe that India appears to have conceded its case in its reply, wherein it states that “India generally agrees with this but points out that this premise is destructive of Pakistan’s case on the interpretation it seeks to place on paragraph (vi) of the Bilateral Agreement of 2008.”
Such a proposition would appear to be inconsistent with our position on the nature of obligations under Article 36 as non-derogable. The drafters accuse Pakistan of having failed to “gather courage” to suggest that Article 30 of the Vienna Convention on the Law of Treaties (VCLT) would override Article 73(2) of the VCCR, but do not offer a substantive counter-argument.
Why rudimentary principles of treaty interpretation and provisions of the VCLT – including, specifically, Article 30 on the application of successive treaties relating to the same subject matter – find no other mention in two rounds of written pleadings submitted can only be explained by the government of India.
There is sufficient ambiguity in the language of Article 30(4) of the VCLT, not unlike the “studied ambiguity” on the legality of espionage question, to argue for the primacy of an earlier treaty. In India’s total failure to engage with and interpret this crucial body of international law, it is not inconceivable that we may have jeopardised our own case, and perhaps, our national security.
India’s reliance on Article 41 of the VCLT on the modification of treaties is premised on a misreading of the “object and purpose of the Convention as a whole” as “object and purpose of Article 36 of the VCCR”. This error forms the basis of half-hearted arguments advanced to highlight the role of Article 36 in safeguarding due process rights.
In sum, the court must decide whether an agreement to ‘examine [a case] on its merits’ in offences involving national security is ‘incompatible with’ the provisions of Article 36 of the VCCR within the meaning of Article 30(5) of the VCLT or a ‘supplement’ and ‘amplification’ thereof within the meaning of Article 73 of the VCCR, without any substantive assistance from India’s submissions.
This issue is of critical importance, as the question of granting consular access to Jadhav would not arise if the 2008 Agreement is the applicable law between India and Pakistan, and a permissible modification of the VCCR as Pakistan has argued.
The human rights argument
In Avena, the court recognised “special circumstances of interdependence of the rights of the State and individual rights” under Article 36 of the VCCR. It observed at paragraph 40 that “the violations of the rights of the individual under Article 36 may entail a violation of the rights of the sending State, and that violations of the rights of the latter may entail a violation of the rights of the individual”.
This is to say that if the court is not convinced of India’s right to seek consular access as the sending state, the question of a violation of Jadhav’s rights as an individual would not arise. Likewise, the inverse is also true – if the current state of international human rights law permits a margin of appreciation to states in ensuring due process rights for foreign nationals, then India’s rights as the sending state would also be weakened.
At this juncture, it is relevant to note some striking similarities between India and Pakistan’s shared colonial inheritance that underpins our national security structures. Section 3 of the Official Secrets Act, 1923 – one of the provisions under which Jadhav has been convicted by the military court in Pakistan – is nearly identical to its Indian counterpart.
However, the two provisions diverge in one crucial respect – the Indian version does not prescribe the death penalty for espionage. It was precisely this difference that was not sufficiently leveraged to assist India in bolstering its arguments on the role of the VCCR’s Article 36 in the protection of human rights and the cross-pollination of jurisprudence. The backbone of our human rights and due process arguments was procedural deficiencies in Pakistan’s military justice system and the lack of robust judicial review, but not the substantive law applied to his case.
In order to do so, the drafters of our written pleadings should have looked beyond the jurisprudence on due process and consular access emanating from the Inter-American Court of Human Rights. They should have delved into the jurisprudence of the European Court of Human Rights (ECtHR) to argue for the primacy of either treaty, on the grounds that it accorded greater protection to human rights.
The ECtHR’s landmark judgment in Soering offers a useful blueprint in protecting our nationals abroad from being sentenced to the death penalty.
If the court agrees with India’s interpretation of the VCCR and the 2008 Agreement, it must adjudicate a third issue.
This concerns the nature of the relief to which India may be entitled. Qureshi argued with gusto against the “outlandish” prayer of Jadhav’s release from detention in Pakistan. While a plea for restitutio in integrum is certainly one that goes by the book, the effectiveness of India’s strategy of trying to discredit the entirety of Pakistan’s judicial system is suspect. Any damage to its perceived legitimacy may or may not impact the court’s opinion on the legality thereof.
Remarkably, the primacy of domestic criminal justice systems of disputing states by the ICJ also shines through in the dispositif in Avena and LaGrand; both of which required that the US allow a review and reconsideration of the conviction and sentence, “by means of its own choosing”. The vote on this clause in both decisions stood at 14 votes to one, and will bear heavily on the nature of relief India to which may be entitled.
This indicates that even if the court finds that Pakistan violated its obligations under the applicable international law, the choice of means to prevent the execution of the death penalty would, most likely, be left to Pakistan’s domestic legal system. This would relegate the question of his release and return to India into the realm of diplomacy.
In such a scenario, I suspect it may be difficult for India’s strategists to isolate and distinguish the rules of engagement for this fresh lawfare battle to come, from those we saw applied to secure IAF Wing Commander Abhinandan Varthaman’s release and return.
While we await the court’s judgment, the months to follow should be a time for introspection and investment in capacity building for research in international law on war footing for all of us – the errant children of colonialism who share, beyond the language of legislation inherited from our erstwhile colonial oppressors, an abiding love for the thrilling adventures of the fictitious Mr Bond.
Gunjan Chawla is the Technology and National Security Program Manager at the Centre for Communication Governance at National Law University Delhi. Previously, she was a Judicial Fellow at the International Court of Justice (2017-18) and a LAMP Fellow (2014-15).