Jadhav case fallout: Will Pakistan move ICJ over Major Gogoi human shield row?

Islamabad may well project the tied protester on the Army jeep as a prisoner of war.

 |  4-minute read |   30-05-2017
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Has India scored a self-goal by going to the International Court of Justice (ICJ) to save a single person, namely Kulbhushan Jadhav, even though the ICJ cannot be deemed as an insurance policy for the retired naval officer?

Has India missed the woods for the trees? Will this decision of India open up the floodgates of cases which Pakistan can file before the ICJ citing the same set of parameters and arguments as India has in the Jadhav case?

These are crucial questions which have a bearing on international laws and practices. Probably the Modi government's decision to move the ICJ to save the life of Jadhav can prove to be as tricky as the country's first PM Jawaharlal Nehru's decision to approach the United Nations for resolution of the Kashmir dispute with Pakistan!

God forbid if it were to shape out like this. But reading the tea leaves in the Jadhav case doesn’t present a rosy picture. On the contrary, it looks like India may have yielded too much diplomatically in its bid to save Jadhav’s life.

The bitterest pill for India would be if its well-intentioned move to save Jadhav’s life by moving the ICJ comes a cropper nonetheless, the ICJ proves to be a toothless tiger and India gets saddled with a lot of human rights violation cases filed by Pakistan before the ICJ.

This is a scary scenario. But it may well prove to be a harsh reality in the not too distant future. Take for example, the case of Major Gogoi, the Indian Army officer who stunned all by tying a protester on an Army jeep as a human shield to ward off stone-pelters in the Valley.

The officer, who was awarded a commendation certificate from the Army Chief himself even though an inquiry against him was and is pending, has triggered a tsunami of public support in his favour in the social and mainstream media.

The million dollar question is this. While India has invoked the Vienna Convention in the Jadhav case before the ICJ, isn’t India guilty of violating the same in the Gogoi case?

For example, consider Rule 97 of the Vienna Convention which prohibits the use of human shields in international and non-international armed conflicts.

jadhav-embed_053017020221.jpgPakistan still has many aces up its sleeve.

Rule 97 gives a definition of human shields. Make no mistake about it! This definition looks like a description of what Major Gogoi did.

Sample a quote from Rule 97: “The prohibition of using human shields in the Geneva Conventions… are couched in terms of using the presence (or movements) of civilians or other protected persons to render certain points or areas (or military forces) immune from military operations. Most examples given in military manuals, or which have been the object of condemnation, have been cases where persons were actually taken to military objectives in order to shield those objectives from attacks.”

India describes the situation in Jammu and Kashmir as a proxy war being waged by Pakistan, and rightly so. But this may well give a handle to Pakistan as Islamabad may well project the tied protester on the Army jeep as a prisoner of war.

Consider another brief extract from Rule 97. “The prohibition of human shields is contained in numerous military manuals, many of which extend the prohibition to all civilians. Using human shields constitutes a criminal offence under the legislation of many States… The use of prisoners of war as human shields during the Second World War was the subject of war crimes trials by the UK Military Court at Lüneberg in the Student case in 1946 and by the US Military Tribunal at Nuremberg in the Von Leeb (The High Command Trial) case in 1948.”

In conclusion, one can only say that the initial celebrations over the Indian victory in the Jadhav case may well prove to be short-lived. It may turn out to be a Pyrrhic victory! Pakistan still has many aces up its sleeve.

Also read: Military veteran says Army was wrong to use human shield: Is he also anti-national?

Also read: Don't start chest-thumping over Kulbhushan Jadhav's ICJ 'victory' just yet

Writer

Rajeev Sharma Rajeev Sharma @kishkindha

The writer is an independent journalist and a strategic analyst.

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