The International Court of Justice (ICJ) at The Hague has rejected Pakistan’s case against India on the shooting down of an unarmed Pakistani naval plane in August 1999. The Court said it had no jurisdiction in the matter. This has surely embarrassed Pakistan’s Attorney-General, Aziz Munshi, who led the Pakistani team to The Hague. More significantly, India is crowing about a third victory (Kargil being the first and President Clinton’s trip being the second) in recent times and trying to fuel and extract mileage out of the perception that Pakistan is growing increasingly isolated in international affairs. In the meanwhile, a clear case of international gangsterism on India’s part has gone abegging.
Pakistan had a bloody good case. The debris of the plane that was shot down (the Atlantique) was found two kilometres inside Pakistan. There was visual proof that Indian helicopters had landed inside Pakistani territory to collect the debris as a ‘trophy’ for Mr Vajpayee. What was, however, not clear to the lay person was how the case would fare at the International Court of Justice (ICJ). It was known that India would rely on the argument that the Court had no jurisdiction in such matters in view of the “optional clause” declaration announced many years ago which stopped the court from adjudging disputes between India and members of the Commonwealth. But it was Mr Munshi’s job to weigh the chances of getting a fair hearing for Pakistan at the ICJ and plan a strategy accordingly.
The ICJ, it may be noted, is a holdover from the League of Nations in the sense that it grants the right of exemption from international law to sovereign states. If a state doesn’t want to be adjudged, it simply has to say so in a declaration under Article 36. India’s 1974 declaration under this article claims exemption in disputes involving members of the Commonwealth. Clearly, therefore, Pakistan’s case had to be presented in such a way as to compel the Court to change its stance. Since its birth it has adjudicated only 58 cases, and these too have been mostly those referred to it by the United Nations. Pakistan was therefore going to the ICJ with the expectation that it would extract a “historic judgement” which would change the course of international law. Was this in any way justified?
Pakistan fielded an eight-member team. Mr Munshi was the only Pakistani lawyer among them. India had nine players, all lawyers and legal experts, including Indian and international personalities, with Indian Attorney-General Soli Sorabjee leading the team. The convention at the ICJ is that cases of jurisdiction are presented with the help of academic experts specialising in public international law theory. Professors of law have traditionally dominated the proceedings of the Court. But Mr Munshi’s professional bias inclined him to engage mostly lawyers, ignoring the academic side of the case. His choice of the lawyer Lauterpacht (not the famous father Lauterpacht but his much less talented son) was not uncontroversial. From the Indian side, there were not only five professors who put the Indian case effectively in the two days allotted to them, but some of them were Indians who knew the nuances of the case in the South Asian setting. In addition, the British lawyer-academic, Brownlie, representing India, had authored a well-received book on public international law that the judges of the ICJ were familiar with.
Pakistan had asked the Court to hold India guilty of violating international law and order it to cough over US$ 60 million as indemnity to cover the price of the plane as well the compensation paid to the 16 Pakistani personnel killed in the incident. But by losing the case, Pakistan has not only not collected cost from India but may have to bear the entire cost of the unsuccessful litigation. We understand that the panel of international lawyers has been paid rather hefty fees. The expenses of the ICJ hearing, which extended over four days in April, including the time spent by the judges and their aides on the case, will also have to be borne by the public exchequer in Pakistan. If the cost of the Indian side too has to be met by Pakistan, the total bill may swell quite steeply. This is certainly not good news for Pakistanis creaking under the burden of fresh taxes and stiff penalties in the new budget.
Mr Munshi has told the Voice of America that the case he has lost has been a ‘step forward’. We don’t understand how he can make this claim, unless of course he is using the same twisted logic used by every government so far in claiming that the cause of Kashmir has been highlighted whenever we have failed to get the United Nations to take note of it at the First Committee level.
The psychological fallout of the case will be negative. It will doubtless reinforce the feeling of international isolation in and out of Pakistan. We might have thought twice before rushing headlong into it.