Violence in Pakistan: A Gendered Perspective

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by Zainab Mustafa, Research Associate, RSIL

Context

Pakistan has been ranked as the third most dangerous place in the world for women.[1] Gender Based Violence (GBV) in Pakistan has its roots in a patriarchal social structure under which women are considered inferior to men and are viewed as property.[2] Illiteracy, ignorance and blind faith in clergy provide a fertile ground for the maintenance of the status quo, and encourages this extreme form of patriarchal society.[3] This issue is further compounded by discriminatory legislation and a dysfunctional criminal justice system.[4]

Acts of violence committed against women including, inter alia, sexual violence, intimate partner or spousal abuse (domestic violence), sexual harassment, harmful traditional practices (forced marriage, vanni, karo kari), and other discriminatory practices based on gender all fall within the ambit of GBV.[5] Over 10,000 cases of GBV were reported in Pakistan in 2014.[6]  According to official figures released by the Ministry of Human Rights, 8,648 human rights violations were reported in the country between January 2012 and September 15, 2015. These included 90 incidents of acid burning, 72 of burning, 535 cases of violence against women, 860 honour killings and 344 rape/gang rapes, 268 sexual assault/harassment, and 481 of domestic violence.[7]

Challenges faced

Despite this there is no specific federal law prohibiting domestic violence.[8] Women who have tried to report abuse have faced grave challenges, with the Police and judges hesitating to take action, deeming such matters private home affairs. Police officers often use the method of mediation to settle domestic disputes to save women the shame of going through courts, which does not always result in justice.[9] Women that wanted to take legal action were told to lodge an FIR in an environment which they described as “scary” and “confusing” and in some cases the process took between 3 to 6 months. Moreover, none of the women reported that they had been given any safety planning measures by the police.[10]

Rape victims are perceived as possessing immoral character and therefore blameworthy for getting raped. Some victims are pressurized to withdraw their complaint or settle out of court. The Station Chief of a busy Lahore police station told the Human Rights Watch that the crime of rape does not exist in Pakistan and that women normally consent to intercourse, subsequently lying to incriminate their male partners.[11] Judicial bias also sometimes leads to verdicts that penalize women. The International Crisis Group reported, “While researching on knowledge, attitudes and practices on rape, I was shocked to hear a [lower court] judge in Punjab say that if it was a gang rape, it could be considered zina-bil-jaber (rape). But if there was only one aggressor, then it was zina (consensual extramarital sex).”[12] According to reports, some rape victims have been forced to marry their attackers. Furthermore, prosecution in rape cases take years and is rarely successful.[13] In a paper submitted to CEDAW[14] it was noted that a rape trial can continue for a time period of between one and a half years to 10 years.[15] Moreover, medical personnel in many areas do not have the expertise required for such complicated prosecutions and do not gather evidence on time leading to acquittals.[16] The Human Rights Commission of Pakistan (HRCP) has stated that less than four per cent of Pakistan’s rape cases result in a conviction.[17]

Legislative Measures and Lacunae in the Law

Pakistan has taken a significant number of steps to counter GBV through adopting legislation on the subject. However, the laws lack implementing measures and do not offer sufficient safeguards. Shelter homes for women facing violence have also been established in Pakistan but many of these lack basic facilities and are very few in number compared to the women who are seeking refuge. Reportedly, patterns of abuse have also emerged at these shelter homes where women found their movements strictly restricted and were also pressured to return to their abusers.[18]

The Government has established police stations for women staffed by female police officers to offer victims of violence a safe place to register complaints and file charges. However, there are very few in number and are often under staffed. Furthermore, the police often lack the expertise to handle GBV cases.[19] Evidence collection after rape cases is particularly poor which often results in the perpetrator going free.[20] Since 2006, National Police Academy’s curriculum includes a training module to increase gender sensitivity. This by itself is insufficient if it is not coupled with accountability for failure to investigate crimes.[21]

The Ministry of Women Development (MoWD) and the National Commission on the Status of Women (NCSW), are responsible for the formulation of policies to eliminate GBV.[22] In 2006, the Gender Crime Cell was set up in the National Police Bureau to collect data on cases of GBV, and provide policy advice to the Government on particular cases.[23] The Criminal Law (Amendment) Act 2004 of the Pakistan Penal Code (PPC) outlawed karo kari, siyah kari and similar other customs,[24] however, the law leaves space for gender biases, which results in lenient sentences and the protection of perpetrators from maximum penalties.[25] An estimated 70 per cent of perpetrators go unpunished.[26] The Qisas and Diyat Ordinances are applied to negotiate compensation with the perpetrator. Furthermore, the police have in some cases been reported to be complicit with perpetrators of honour crimes.[27]

The Protection of Women (Criminal Law Amendment) Act 2006 has amended law governing rape in Pakistan. However, the law is poorly implemented and reportedly, police has also been implicated in some cases.[28] It has been reported that police have sometimes abused or threatened victims, especially in cases where they have received bribes.[29]

The Prevention of Anti-Women Practices [Criminal Law Amendment] Act, 2011 is considered ambiguous and there is a lack of clarity surrounding its application amongst police officers and public prosecutors. Furthermore, the law does not allow an arrest without a warrant or a court order.[30] A study conducted by Aurat Foundation in 2011 revealed that most police officers and lawyers were unaware of the existence of the AWP Act 2011 and that no trainings had been held for law enforcement officials.[31]

The Domestic Violence (Prevention and Protection) Bill 2009 was unfortunately not passed by the Senate, accentuating the difficulty surrounding passing legislation related to women.[32] Balochistan, Sindh and Punjab have all passed laws against domestic violence, including other pro-women legislation such as the Punjab Women Protection Authority Act 2017, the Sindh Commission on the Status of Women Act 2015, and the Sindh Child Marriages Restraint Act 2013.

However, laws by themselves cannot successfully safeguard rights. The frighteningly high official figures released by the Ministry of Human rights is testament to that. Laws have to be accompanied with implementing measures and for most of the pro-women laws promulgated, the implementing and monitoring mechanisms are still pending.

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Understanding the Jadhav Case at the International Court of Justice (India v. Pakistan)

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By Oves Anwar, Director, RSIL

17th May, 2017

On Monday, both India and Pakistan presented oral arguments on provisional measures before the ICJ in the Jadhav Case (India v. Pakistan). The case has generated considerable debate as well as much confusion. This is not surprising as, outside the small community of international law experts, the workings of the ICJ often remain shrouded in legal technicality and jargon. This article aims at making the case before the ICJ more accessible to individuals outside the legal community (as well as to some within it). This is by no means an exhaustive discussion on the facts and legal precedents which surround the case but it will raise the most pertinent issues needed to follow the case in the coming months and perhaps years.

The ICJ Proceedings:

Monday’s oral hearings marked the first phase of proceedings in this case. The Court will now pronounce an order regarding provisional measures. In essence, they can grant India’s request for a ‘stay’ on the execution of Kulbushan Jadhav or deny such a request on the basis that there is no urgency in the matter.

At the current phase of proceedings, the Court will make a preliminary determination of its jurisdiction to hear the case. After this stage, Pakistan, if it chooses to, can more comprehensively challenge the Court’s jurisdiction through ‘preliminary objections’. This would mark the second phase of proceedings. At the culmination of the preliminary objections phase, the Court will have to make a conclusive determination of whether or not it has the jurisdiction to hear the case. If the Court determines that it does have jurisdiction, then the case will move on to the merits phase, otherwise, the case will be dismissed for lack of jurisdiction. It is after the merits phase that a judgment would be rendered by the Court. Each phase of proceedings may include both written pleadings submitted to the Court as well as oral hearings.

What is the Jadhav Case about?

The case before the ICJ instituted by India is about an alleged violation of the Vienna Convention on Consular Relation of 1963 (VCCR). The VCCR grants States certain reciprocal rights and obligations regarding consular relations. A consul is generally a part of the diplomatic mission of a State in another State. In addition to promoting economic and commercial relations between the two countries, consular officials also look to protect their State’s interests in the host State, especially in relation to their citizens present in the host State. In this regard, Article 36(1) of the VCCR grants consular officials the “right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation.” It is this specific clause that India states Pakistan has violated by not granting its consular officials access to Kulbushan Jadhav. What this translates to is that the case in the ICJ is not about Jadhav’s innocence or guilt, the ICJ has itself stated that it is not a Criminal Appellate Court (Paraguay v USA), rather the case is only whether India had a right under the VCCR and whether Pakistan violated it. It is important to note that the ICJ cannot, under any circumstances, order the release of Jadhav, despite what India may have prayed for in its application instituting proceedings before the Court.

Jurisdiction of the Court

Jurisdiction refers to whether the Court has the authority or competence to actually hear the case and render a judgment on it. In other words, is there some legal basis which empowers the Court to be able to adjudicate on the particular matter brought before it? The ICJ’s jurisdiction can be invoked on a number of bases. The primary one is through the Courts ‘compulsory jurisdiction’ under Article 36(2) of the ICJ Statute. Here States submit a ‘declaration’ accepting the Court’s jurisdiction. Unlike ordinary courts of law in a country where individuals have little choice but to accept jurisdiction, the ICJ requires states to voluntarily submit themselves to the Court’s authority and allow the Court to settle their dispute.

When submitting a ‘declaration’, States may limit the grounds on which a case is brought against it. India has for several decades had a declaration that severely limited the grounds that other countries could take it to the ICJ for. Some of these seem specific to Pakistan and that is why contentious matters such as Kashmir or Siachen have not been brought before the ICJ. Pakistan recently enhanced its own declaration on 29th March, 2017 and is now, in large part, at par with the Indian declaration. Under these declarations neither Pakistan nor India would be able to bring a case such as Jadhav’s to the Court.

However, India did not utilize the path provided in Article 36(2) to the ICJ Statute but rather that found in Article 36(1) which refers to the Court’s jurisdiction in “…all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.” Through this India raises the Optional Protocol to the VCCR which relates to the settlement of disputes arising out of the Convention. Both Pakistan and India have ratified this Optional Protocol which in Article 1 specifically states that, “Disputes arising out of the interpretation and application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice…” This is, therefore, the legal basis upon which the Court can exercise its jurisdiction and the limitations imposed by Pakistan’s declaration under Article 36(2) would stand bypassed. This is not to say that Pakistan cannot challenge jurisdiction on other grounds. There are significant arguments that can be made on the Court lacking jurisdiction in the matter which will be discussed below.

Jurisdiction, however, has differing standards and thresholds that need to be met at different stages of the Court’s proceedings. The current stage of proceedings – provisional measures – is instituted to prevent a continuing or imminent harm to the rights of one party. Due to the urgency of such measures, the Court does not have adequate time to assess its substantive jurisdiction comprehensively. It, therefore, only requires the requesting party (India) to establish that the Court has prima facie jurisdiction. This is a low threshold and if a clear clause in a treaty grants the Court jurisdiction, the Court will generally tend to accept jurisdiction at this stage.

If the Court accepts India’s argument of prima facie jurisdiction, then after a decision on the request for provisional measures, the Court will move on to the merits phase. However, as noted above, before the merits phase, Pakistan will have a chance to challenge the Courts substantive jurisdiction comprehensively at the preliminary objections phase. It is here that Pakistan can outline in detail its arguments for why the ICJ should decline to entertain India’s case. The ICJ will then have to make a final determination of whether it does indeed have jurisdiction in the case or not. If the ICJ determines that it does not have jurisdiction then the case will be dismissed. Alternatively, if the Court maintains that it does have substantive jurisdiction to hear the case, then the proceedings will move on to the merits phase.

Bilateral Agreement of 2008

The case is certainly not straightforward as numerous complicating factors arise. The foremost among them is perhaps the fact that in 2008, as part of the Indo-Pak Composite Dialogue, both countries entered into a Bilateral Agreement on Consular Access. The agreement is aimed at “furthering the objective of humane treatment of nationals of either country…”, and provides for concrete mechanisms for India and Pakistan to inform each other when its citizens are arrested and to provide them with consular access within three months.

The 2008 Agreement has been relied upon by both nations over the past decade for exchanging lists of nationals detained or imprisoned in each other’s countries. It is particularly relevant in the case of fishermen that inadvertently enter each other’s territorial waters. In fact, an India-Pakistan Joint Judicial Committee on Prisoners established in January 2008, has used the mechanisms under the 2008 Agreement to ensure the exchange of prisoners, consular access, and humane treatment on multiple occasions. The Agreement has also been re-affirmed on multiple occasions by joint-statements of officials from both countries. This includes a joint-statement by the Indian Minister of External Affairs, Mr. S.M. Krishna and Pakistan’s Foreign Minister, Hina Rabbani Khar on September 8, 2012, as well as numerous joint-statements by the Joint Judicial Committee on Prisoners.

What is particularly relevant about the Agreement is clause (vi) in that it specifically states, “in case of arrest, detention or sentence made on political or security grounds, each side may examine the case on its merits”. This gives both Pakistan and India a degree of discretion to deny consular access where the compulsions of national security require it.

India is trying to distance itself from this agreement on the grounds that it is not registered with the United Nations. Article 102 of the UN Charter states that, “No party to any such treaty or international agreement which has not been registered… may invoke that treaty or agreement before any organ of the United Nations.” The ICJ is an organ of the United Nations. Interestingly, however, the requirement of registration is not time specific, nor does it mean that with the commencement of proceedings in the case that Pakistan has forfeited its chance to register the Agreement. Pakistan can, and probably should, register the Agreement as soon as possible. In fact, in Qatar v. Bahrain, the ICJ did not object to Qatar’s registration application to the UN Secretariat after the proceedings had commenced. The Court went on to state, “Non-registration or late registration, on the other hand, does not have any consequence for the actual validity of the agreement, which remains no less binding upon the parties.”

India also alleges that the Bilateral Agreement contradicts the VCCR. The India claim is that the right to consular access under the VCCR is absolute and cannot be limited under any circumstances. This raises the question of why then did India enter into an agreement voluntarily which supposedly curtails its rights. It is important to note that the validity of the Bilateral Agreement may hinge on the wording of the VCCR which does not prevent “…States from concluding international agreements confirming or supplementing or extending or amplifying” the VCCR. The Court will have to see whether the Agreement of 2008 confirms, supplements, extends or amplifies the provisions of the VCCR. This issue is bound to raise a number of interesting issues relating to the extent that a State can limit its own rights, the status of treaties that come later in time, and the limits of the overriding compulsions of national security over international rights. Here another convention finalized in Vienna would be of utmost relevance – the Vienna Convention on the Law of Treaties (VCLT). The VCLT serves as a tool for the interpretation of international treaties and agreements. I will not go into the details of the VCLT’s impact on the case as Taimur Malik and Muhammad Bilal Ramzan have already presented an excellent analysis here.

The Bilateral Agreement may also be fundamental to Pakistan’s case in demonstrating that no dispute exists at all. For the ICJ to decide the case under the Optional Protocol to the VCCR a dispute must exist as to the “interpretation and application of the Convention.” Pakistan can argue that the Bilateral Agreement is clear evidence of both Pakistan and India’s mutually agreed upon interpretation and application of the VCCR. If this was not the case, then why would both sovereign States put this understanding into writing in a legally binding Agreement? If Pakistan can indeed demonstrate this to the satisfaction of the Court, the Court will have to decline jurisdiction as no dispute between the parties would exists, i.e. there would be nothing to adjudicate upon.

Status of Kulbushan Jadhav

Another complicating factor is the status of Kulbushan Jadhav. India’s claim that he retired from the Navy and was now a businessman rings hollow when confronted with the fake identity that Jadhav had assumed of Mubarak Hussain Patel, corroborated by a passport found on him.

Furthermore, espionage is not a matter with considerable precedence under International Law. It is a reality of our times that espionage is conducted by almost all States today, yet legally there is no substantive regulation provided for it in international law outside the laws of armed conflict, also known as International Humanitarian Law (IHL). Under IHL, rights of communication of spies can be curbed due to the security risks they pose. By analogy, the same security risks exist in times of peace, especially if the concerned spy is engaged in funding, planning and supporting terrorism in a country. This is undoubtedly why Pakistan insists on refusing consular access to Jadhav. Any access to him may allow him to reveal the extent of information he has divulged to Pakistani authorities, the Indian intelligence assets that have been compromised, the assets that are still in play, etc. Apart from the direct national security risk this would pose, such access may also compromise on-going investigations into Jadhav’s network in Pakistan. Pakistan’s legal team at the ICJ will have to convince the Court that Jadhav’s actions are not isolated events but rather a manifestation of the overall Indian strategy to destabilize Balochistan as evidenced by the public statements of its National Security Advisor, Ajit Doval and other Indian officials.

What can India hope to get from the ICJ?

Provisional measures

India has requested for immediate provisional measures to put a ‘stay’ on the execution of Jadhav till the case is finally decided by the Court. For this it will have to establish the urgency of the case. In the Avena Case, Mexico sought provisional measures staying the execution of 54 Mexican nationals on death row in the United States. The ICJ only granted provisional measures for three of these individuals as their execution was scheduled within six months. Since the domestic proceedings in the Jadhav case have not ended as yet, it may be difficult for India to demonstrate real urgency in the matter.

Final Judgement

In its application to institute proceedings India has requested four forms of relief from the Court. Firstly, the immediate suspension of the sentence awarded to the accused. Secondly, a declaration that the sentence of the military court is violative of International Law and the provision of the VCCR. Thirdly, restrain Pakistan from executing the sentence and directing it to annul the decision. And fourthly, if Pakistan is unable to annul the decision then the Court declare the decision to be in violation of International Law and order the release of Jadhav.

Unfortunately for India, none of these different (and also quite similar) forms of relief are within the Court’s purview to grant. The only issue the ICJ can make a determination on is whether Pakistan violated its obligation to India under the VCCR. The VCCR does not provide any grounds for the annulment of a decision of a domestic court. Therefore, Jadhav’s trial or his sentence cannot be reversed by the Court. What can be discussed is what would have happened had Jadhav been granted consular access. Would Indian representatives have been able to provide better legal counsel to strengthen Jadhav’s case before the Field General Court Martial? Would access have led to a different verdict? In any decision the Court makes, the Sovereign authority of Pakistan to deal with a terrorist and spy will have to be weighed against any alleged violation of India’s rights under the VCCR.

Even if India is able to convince the Court to decide in its favour, Jadhav cannot be ordered to be released as that is outside the scope of powers of the ICJ. However, like the Court’s decision in LaGrand and Avena, Pakistan may be asked to ‘review and reconsider’ the Field General Court Martial proceedings with a view to assessing whether the granting of consular access would have made a difference to the outcome of the Jadhav case. In Avena, the court explained that ‘review and reconsideration’ involved judicial review of the process and a determination to be made whether the VCCR violation caused actual prejudice to the defendant. Importantly, however, the ICJ noted that such a review was to be conducted by the State “by a means of its own choosing…”, thus acknowledging the sovereign authority of a State over its domestic criminal matters as well as accepting the limited powers of the ICJ in such cases.

Research Society of International law RSIL

The Concept of Legal Diplomacy

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Jamal Aziz

Executive Director RSIL

Pak-India relations are once again at a low point. The recent violence in Kashmir has raised tensions on both sides, and has once again highlighted how the Kashmir dispute remains the biggest obstacle to normalizing relations between India and Pakistan.

A major flashpoint is the apprehension of Kulbhushan Yadav, who subsequently confessed to carrying out various terrorist activities in Balochistan and Karachi at the behest of India’s Research and Analysis Wing.  Yadav’s recent conviction by a military court has raised the political temperature on both sides with the Indian side demanding consular access and family visitation rights while Pakistan seeks to formally catalogue unlawful Indian intervention and interference on its territory.

Water disputes between the two countries are also on the rise. This includes specific disputes relating to the Kishenganga and Ratle projects under the framework of the Indus Water Treaty (IWT) to broader suspicions and misgivings on both the Pakistani and Indian side which are threatening the very framework of the IWT itself.

At the same time, the lack of tangible progress in the Mumbai trials, Pathankot investigation and the Samjhauta Express case continues to be a major source of contemporary friction between the two nuclear armed neighbours.

Against this backdrop, we believe it is our national duty to make the case for legal diplomacy.

RSIL believes that legal cooperation and legal clarity identifies more durable common grounds to understand opposing points of views and can also provide solutions through legal innovations.

Legal diplomacy gives us an opportunity to cut through the political rhetoric and focus on the legal obstacles hampering peace between the two states and recommend the specific legal steps that may be undertaken in order to revive the peace process.

RSIL believes that focused efforts are required to conduct research and analysis on the legal issues facing India and Pakistan with a view to finding realistic and lasting solutions. It is our firm belief that a greater awareness of the legal challenges facing our two countries will benefit a broad range of participants in the domestic and international public sector and yield dividends in the long run.

From Pakistan’s perspective, it is hoped that an engagement with the concept of legal diplomacy will enable policymakers to better craft internal policies and legal responses to these issues in a way which conforms to Pakistan international obligations, thus solidifying its reputation as a responsible and proactive participant in the international community.

The Case for Legal Diplomacy

By Ahmer Bilal Soofi, President and Edited by Jamal Aziz, Executive Director
The Concept of Legal Diplomacy

Mr. Jamal Aziz, Executive Director RSIL, explaining the concept of Legal Diplomacy at a recent RSIL workshop on Improving Pak-India Bilateral Relations through Legal Diplomacy. The event was widely attended by diplomats, bureaucrats, journalists, lawyers and civil society members. Foreign Secretary of Pakistan, Mr. Aizaz Chaudhry, served as the Moderator whereas the Attorney General of Pakistan, Mr. Ashtar Ausaf Ali, served as the Chief Guest on the occasion.

Posted by Research Society of International Law (RSIL), Pakistan on Sunday, September 25, 2016

The Case for Legal Diplomacy

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Ahmer Bilal Soofi, President, RSIL

Edited by Jamal Aziz, Executive Director, RSIL

The contemporary world order has profoundly altered the traditional notions of effective conduct of diplomacy. Today, intelligent state-craft includes strategic use of new and creative forms of diplomacy to settle disputes in the international system and achieve foreign policy objectives.

Now consider, for example, the current diplomatic impasse between India and Pakistan. For quite a while, India has been insisting on restricting the agenda of any bi-lateral dialogue with Pakistan to only ‘cross-border terrorism’ issues while Pakistan favours a more comprehensive dialogue framework which also includes talks over the Kashmir dispute. These are essentially well defined political agendas. But, despite some degree of personal comfort between Prime Ministers Nawaz Sharif and Narendra Modi, the traditional bi-lateral channels of diplomacy remain log-jammed. Moreover, the various Track II dialogues involving retired military and civilian officials, prominent professionals and esteemed members of civil society from both the countries have not made much headway either. The attempted political matchmaking by informal envoys including former diplomats, businessmen and others has also not borne any fruit.

Given this context and the avowed Indian attempts to isolate Pakistan diplomatically, the one thing that we have not yet tried is ‘legal diplomacy’, i.e. a structured legal approach towards improving our foreign relations and realizing our foreign policy goals through the prism of relevant domestic and international laws.

In the remainder of this article, we make the case for Pakistan to also actively engage in legal diplomacy not only to find acceptable solutions to our problems with India but to incorporate the same more broadly as an integral and permanent approach in the conduct of our foreign relations.

The fact that Pakistan has not yet resorted to legal diplomacy vis-à-vis India is quite surprising, given that the long-standing thorny issues between the two countries including Kashmir, Siachen, Sir Creek, water etc. are all matters within the purview of international law as well as the domestic laws of the two states.

The more recent issues between Pakistan and India also involve extensive legal propositions and processes. This includes the slow progress on the Mumbai trial in Pakistan and Samjhauta trial in India, the Pathankot and Uri investigations and of course the Kulbhushan Yadav case.

Notably, many if not all of these issues constitute an independent and a separate case on which different teams of lawyers and investigators on both sides are independently working and strategizing on without consulting one another. This lack of coordination has inevitably led to a blame game with each side accusing the other of protecting its interests mainly through trial and investigation delays.

These recent matters between India and Pakistan are, in fact, representative of transnational crime scenarios where the crime of terrorism has been conspired in one jurisdiction and executed in the other. Some instances also involve links with third countries. Several different courts, therefore, are, or will be involved in almost all the said cases. The criminal law of both the states will be invoked. The law of evidence, with all its qualifiers, will be used for investigation and collection of evidence, whereby evidence must be transferred through a formal legal process to make it admissible before the courts of law. With trial witnesses physically scattered in two different jurisdictions, the attendant issues of recording their testimony and cross-examining them will need to be sorted. Moreover, there are outstanding differences regarding the legal basis and manner of the collection of intercepted calls and voice samples, and lingering issues such as the legal consequences of filing a Chalan on the basis of half-baked investigation need deliberation.

Given all these legal complexities, it is perplexing that officials in India and Pakistan investigating these matters have never interacted with each other to match their notes or share evidence collected during their investigations with one another in joint investigation meetings.

In the Mumbai case, the prosecutors from both the countries have never met each other, whereas, for a trans-national crime being tried in two different jurisdictions, preliminary meetings of prosecutors would otherwise be a certainty so as to divide the scope of the prosecution and the charges as well as the suspects for indictment. At the diplomatic level, the ‘cooperation’ in the Mumbai case has thus far been used as a smoke-screen for score-settling rather than for sorting the various legal complications involved in the case. In this context, the dossiers handed over to Pakistan’s High Commissioner by India were all actually inadmissible and of no worth before a court of law. Yet, this has been erroneously drummed up as a situation where although Pakistan has been provided with everything that it needs to convict the suspects, it is not doing enough on its part.

To be fair, the Pakistani side has also not been able to understand the complexities of this case and explain the reason behind the delays nor taken effective steps to redress the problems.

Notwithstanding their intellectual prowess in general, diplomats are not lawyers. In all fairness then, we should not expect them to grasp the subtleties of the various legal processes, especially at the trial level, which is generally considered as the most technical and highly confusing area of law even for seasoned practicing lawyers.

Of course, there is a political dimension to several aspects of the Mumbai case which our diplomats are trained to handle. But, at the same time, the legal steps that are required to be taken cannot be exempted from. What crucially needs to be understood by diplomats on both sides is that if the evidence received from the other state is not court-worthy, then the state cannot, through some executive miracle, make it admissible to force a conviction merely to satisfy the sentiments of the other state. It is simply impossible for a state to guarantee an outcome of a trial because it cannot, and should not, influence the independent functioning of its judicial process in deference to the rule of law.

Kulbhushan Yadav’s case, in legal terms, is representative of an intervention by a state actor in a neighboring state for which, subject to evidence, India as a state will bear responsibility under international law. This is so because Yadav’s acts are legally attributable to his employing entity, which is the sub-set of the Indian Government. The Draft Articles on State Responsibility, a binding international law instrument, are clear about this.

On the other hand, in the cases of Mumbai, Pathankot, and Uri, the offenders are neither state actors nor officials, but non-state actors, who conducted unauthorized and unlawful acts. Importantly, even though nationality is not the basis of responsibility in international law, Pakistan still continues to bear the responsibility of prosecuting them properly as a consequence of its international law obligations flowing from the United Nations Security Council Resolution 1373.

In this context, it is unfortunate that through traditional diplomacy alone, Pakistan has been unable to put across to the world the story of its prosecution of the Mumbai incident in particular despite undertaking several legal steps. These steps by the state of Pakistan include beefing up its prosecution team, designating a special judge for the trial who conducts hearings far more frequently than in ordinary cases, and contesting the request for relief by the suspects at every stage. Moreover, the state opposed the suspects’ bail applications and if not for this opposition Zakiur Rehman Lakhvi may have been released on bail in the very first year of trial because the evidence presented by the Indian side was insufficient to prevent it.

The state’s message is clear – Pakistan stands distanced from non-state actors and their irresponsible and unauthorized acts. Crucially though, this message will be better understood by the world community if Pakistan augments traditional diplomacy with legal diplomacy that will enable the state to properly document and present the various legal steps undertaken by it in the Mumbai case.

Legally speaking, Mumbai, Pathankot, Samjhauta and Yadav issues remain trials and cases. Therefore, in all these cases, I suggest the need for both the states to embark upon legal diplomacy, where they can communicate with each other in legal terms, in the language of the procedure, and move forward wholeheartedly for bringing the perpetrators in these cases to justice.

The ambit of Pakistan’s legal diplomacy need not be restricted to India-Pakistan issues. Our foreign relations with the United States can also be strengthened by engaging with Washington in dispassionate legal terms. Issues such as drone strikes and compensation for the victims of these strikes, the reimbursements due to Pakistan under the Coalition Support Fund, the procurement of sensitive defense equipment like the F-16s and the recently enacted Justice Against Sponsors of Terrorism Act (JASTA), all involve intricate questions of international law as well as domestic law of the United States. Pakistan, therefore, cannot effectively achieve its objectives with respect to these issues without complementing its traditional diplomacy with legal diplomacy.

Post-9/11, the United Nations Security Council has become a global legislative forum of sorts by passing a series of binding resolutions on counter-terrorism such as UNSC 1267 and UNSC 1373. This has necessitated the use of legal diplomacy at the United Nations as well.

Legal diplomacy can also bring internal clarity and harmony between the different state institutions and the federal and the provincial governments on the treatment of non-state actors by providing them a common legal agenda that will prevent them from buck-passing or engaging in a counter-productive blame game.

For all of the foregoing reasons, it is simply a necessary need of the hour for Pakistan to actively engage in legal diplomacy on all the fronts discussed in this space.

Research & Consultancy Services

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RSIL offers comprehensive legal research and consultancy services to a wide variety of clients both within Pakistan and abroad. Our clients have included Federal and Provincial Government departments, statutory bodies, UN bodies, international & regional organizations, non-governmental organizations, as well as universities and other research entities. In relation to Legal Reform Projects, our services span the entire range of the project lifecycle and include:

  1. Conducting research as part of the inception, designing and planning of large scale public sector reform projects;
  2. Implementing legal reform projects:
    1. Scoping studies;
    2. Mapping: Systems, Organizational, Stakeholder, and Processes;
    3. Desk reviews involving legislative analysis, case law reviews, policy evaluation, gap analyses, and needs assessments;
    4. Stakeholder Consultations – Key Informant Interviews/Meetings, Focus Groups/Workshops, Surveys & Opinion polls, Written responses, drafting and circulation of Green Papers, etc.
    5. Reports and White Paper drafting;
    6. Identifying appropriate vehicles for reform – Policies, Legislation, Rules, Regulations, Statutory Regulatory Orders (SROs), Notifications, Standard Operating Procedures (SOPs), etc.
    7. Legislative drafting and commentary;
    8. Legislative guidance documents for Parliamentarians, Government officials, and members of civil society; and
    9. Capacity building and training of stakeholders.

International Law:

RSIL’s unparalleled expertise in Pakistan in the field of International Law allows it to offer a wide range of services to both State and non-State clients. These services include:

  1. Rendering assistance in the negotiations of bilateral and multilateral treaties and conventions.
  2. Conducting gap analyses and needs assessments;
  3. Compliance reviews of existing State practice and legislation for compatibility with international treaties and customary international law;
  4. Drafting implementing legislation for international treaties and conventions;
  5. Monitoring of domestic law to determine continued compliance with an international instrument;
  6. Developing standards, benchmarks, and indicators to meet Pakistan’s international obligations;
  7. Interpretation of compliance with United Nations Security Council resolutions;

 

Areas of Specialization:

RSIL’s research and capacity-building personnel have a broad range of specializations in international as well as domestic law. The following is a non-exhaustive list of areas RSIL has capacity in:

  1. Public International Law
  2. Private International Law
  3. Human Rights Law
  4. International Humanitarian Law
  5. Counter-Terrorism and National Security Law
  6. Environmental Law
  7. Trade & Investment Law
  8. Intellectual Property Law
  9. Nuclear Law
  10. Constitutional Law
  11. Criminal Justice
  12. Juvenile Justice
  13. Electoral Laws

International Law Training Centre (Capacity Building)

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One of RSIL’s core functions is to enhance the capacity of members of the domestic and international policy making community. This includes, jurists, judges, legislators, bureaucrats, diplomats, and many others. From its formation. RSIL has consistently sought to educate the nation on the role that international law plays within a state’s legal framework.

Keeping in mind the organic expansion of RSIL, it became necessary for us to create a dedicated platform with a wide range of audiences who wish to receive training in areas of national and international importance.

To this end, in June 2016, Mr. Ahmer Bilal Soofi, President RSIL established a new division within RSIL, the ‘International Law Training Centre’ (ILTC). The primary objective of the ILTC is to improve the capacity of key actors in the Government, diplomatic, development and legal communities. A secondary but no less important goal is to conduct legal workshops, seminars, courses and trainings on national and international law for students, teachers, journalists and lawyers etc.

RSIL has access to accomplished trainers, both in-house and external consultants who have a vast variety of specialties and training styles. Additionally, the ILTC has a dedicated team managing its affairs, including logistics and other such details.

RSIL’s Islamabad Office has a purpose specific space in which to conduct trainings, workshops and smaller conferences. The Training Centre can accommodate up to thirty-five participants comfortably.

Since its inception, the ILTC has, thus far, organized and conducted several events which have met with utmost success. We at RSIL are confident that the ILTC will serve as a major platform in bringing about legal awareness; both in terms of international law and its impact on the Pakistani legal landscape.

Conflict Law Centre at RSIL

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The Conflict Law Centre at the Research Society of International Law, Pakistan was established in September 2015 with the aim of studying Pakistan’s domestic law applicable to situations of armed hostilities and enhancing the capacity of State actors in relation to the State’s international legal obligations under International Humanitarian Law (IHL). Against the backdrop of several internal military operations to counter militancy and terrorism in the country, it was felt that a dedicated research unit was urgently needed to assess the effectiveness of domestic law. This included exploring the Constitutional mandate afforded to the Armed Forces of Pakistan under the rubric of Article 245 in relation to ‘actions in aid of civil power’, as well as law enforcement powers available under Pakistan’s counter-terrorism laws.

The on-going fight against terrorism and militancy in the country raises interesting questions in relation to the extent of powers of the Armed Forces and Civil Armed Forces, whether deployed in the Federally or Provincially Administered Tribal Areas of Pakistan (FATA/PATA) or in urban centers of Sindh and Punjab. The Centre’s research has focused on issues concerning the determination of the status of hostilities in particular regions, the application of human rights in such contexts, the legal treatment of fighters, issues of preventive detention, cyber warfare, Air Combat Operations, the establishment of military courts, the role of the judiciary in adjudicating upon issues of armed conflict and terrorism, protection of health care professionals, as well as a range of other issues concerning the application of IHL in Pakistan.

The Centre’s research has been published both independently as well as in collaboration with the International Committee of the Red Cross (ICRC). The following is a list of previous publications by the Centre:

1) The Legal Implications of Adopting a Conflict Paradigm.
2) Understanding International Humanitarian Law: A Primer on IHL and Pakistan’s Domestic Law.
3) Preventive Detention: A Guide to Pakistan’s Operations.
4) Manual on Targeting in Air Combat Operations during Non-International Armed Conflicts.
5) Human Rights and Pakistan’s Counter-Terrorism Legislative Landscape.
6) Towards Protecting Health Care in Karachi: A Legal Review.
7) Benchbook on International Law for the Judiciary in Pakistan.
8) Handbook on Police Law and Criminal Procedure.

The Centre is headed by Director, Muhammad Oves Anwar, with research teams based in RSIL’s Offices in Islamabad and Lahore.

For further information please visit: www.rsilpak.org or email Mr. Oves Anwar, Director, CLC at: ovesanwar@rsilpak.org

Specialized Advisory

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While primarily a research institution, RSIL’s close collaboration with President RSIL, Ahmer Bilal Soofi’s law firm – ABS&Co., lends unique depth to the range of services offered to clients. In this regard RSIL’s Specialized Advisory Division operates as a more traditional law firm for our governmental and international clients rendering legal services in the form of legal opinions, negotiations support, drafting of agreements, and representing clients at various domestic and international fora. RSIL has supported the Government of Pakistan at the United Nations in Geneva, before the International Court of Justice (ICJ), the International Centre for the Settlement of Investment Disputes (ICSID), and arbitrations at the International Chamber of Commerce.

Our international outlook and expertise in domestic affairs, allows us to offer our clients situational reports on specific developments. These can be event specific reports assessing the impact of these developments at the domestic level as well as more regular reports outlining the evolution of particular phenomena and their influence in Pakistan.

In particular, RSIL supports international donor driven programs by advising on the Constitutionality and otherwise legal viability of interventions and proposals. This has become especially significant since the passing of the 18th Amendment to the Constitution of Pakistan and the subsequent devolution of numerous competencies to the Provinces.

In relation to the China-Pakistan Economic Corridor (CPEC) and its ever-growing significance, RSIL is uniquely placed to offer investors and businesspersons advice in the area of investment law and Pakistan’s regulatory framework.

If you would like to engage RSIL’s services please contact Mr. Jamal Aziz, Executive Director – RSIL at jamalaziz@rsilpak.org

Annual Fellowship Programme

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RSIL annually hosts a fellowship program for a select group of advanced professionals from the public and private sector. For seven days, they engage in courses designed to deliver theoretical and practical knowledge on international law and its applications in Pakistan. The program examines the basic infrastructure of international law, including that of the United Nations and its subsidiaries. Participants are also educated on the relevance of international instruments and obligations related to topics such as law of the sea, human rights and intellectual property. Each teaching module includes case studies that further illustrate the relevant legal principles in Pakistan’s domestic law context.

The lecturers include both RSIL’s in-house legal experts as well as independent professionals long associated with RSIL and its Fellowship Program. These outside experts hail from academia, the government and the legal fraternity.

The objective of the Fellowship Program is to impart an appreciation for international law within the participating individuals and their associated institutions. This program is an integral portion of RSIL’s longstanding tradition of promoting the implementation of international legal commitments. It is hoped that a framework for facilitating Pakistan’s progress as a responsible member of the international community will develop with assistance from the network of graduates of the fellowship program.

For additional information on the Annual Fellowship Program, please contact: info@rsilpak.org

Fellowship Timeline

2003

Fellowship Inauguration March 2003

2003

1st Fellowship Programme 2003

2004

2nd Fellowship Programme 2004

2005

3rd Fellowship Programme 2005

2006

4th Fellowship Programme 2006

2007

5th Fellowship Programme 2007

2008

6th Fellowship Programme 2008

2009

7th Fellowship Programme 2009

2010

8th Fellowship Programme 2010

2011

9th Fellowship Programme 2011

2012

10th Fellowship Programme 2012

2013

11th Fellowship Programme 2013

International Law Certification Course

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Since 2005, RSIL has hosted an internship program for students and young professionals seeking greater knowledge about international law. Every year participants are invited to the RSIL premises to gain an in-depth understanding of both the basic framework of international law and those fields in which Pakistan places a particular interest.

RSIL endeavors to disseminate a more developed understanding of various aspects of international law within the legal fraternity. A better understanding of this law and its corresponding obligations will lead to improved domestic dialogue on these issues and by association, improved compliance globally.

The International Law Certification Course takes place each year within the summer months at RSIL’s premises in Islamabad.

Participants will be guided by RSIL’s experienced in-house teams as well as by seasoned practitioners. RSIL’s guest lecturers are renowned experts from all over the world and include: practicing lawyers, policymakers, retired judges, journalists, diplomats and academics. Participants are also encouraged to develop their skills through various exercises in writing and critical analysis. This certification course is designed to bridge the theoretical with the practical applications of international law and to provide participants with the background knowledge that will lead to further research and perhaps eventually a career in international law.

Our graduates often return to RSIL later on to take up a career in international law. Others, after having developed knowledge and passion for international law, join non-governmental organizations, international development organizations and the public sector to further their careers. Many graduates also use the information and skills acquired at RSIL to create their own writings for journals and newspapers alike.

For further information on the annual Islamabad International Law Certification Course, please contact: info@rsilpak.org or visit our Facebook page.

Registration form for International Law Certification Course (ILCC) 2017

If you would like to register, please use the form below.

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ILCC Timeline

  • ILCC 2012 Islamabad

  • ILCC 2013 Islamabad

  • ILCC 2013 Lahore

  • ILCC 2014 Islamabad

  • ILCC 2015 Lahore

  • ILCC 2015 Islamabad

  • ILCC 2016 Lahore

  • ILCC 2016 Islamabad