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International Law

Were the Crusades Justified? A Revisiting

Emanuel L. Paparella, Ph.D.

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If one surveys a magazine of opinion, such as ModernDiplomacy.eu, among others, it will not take long before one encounters a tirade or a rebuke against religion in general or Christianity and the Catholic Church in particular.

The five phenomena which allegedly inspire the attack, coming usually from secularists and positivists are: 1) The suppression of knowledge and obscurantism, 2) the required celibacy of its priests resulting in pedophilia and homosexuality, 3) the Inquisition, 4) Witch hunting and burning, 5) the Crusades. These are phenomena which go back to medieval times which in themselves are usually declared as dark times (confusing the dark ages with medieval times in general) and therefore undesirable in our modern, scientifically advanced, “enlightened” times. Often enough a recommendation is freely and egregiously offered: the Church should simply disband itself after asking for forgiveness for its crimes and hanging its head in shame, and everybody will be much better off afterward. Enlightenment and peace, transparency and liberty and integrity will then arrive on the scene and will reign supreme: a sort of Utopian Garden of Eden.  If any quarter is granted to any form of Christianity in this highly Utopian world free of corruption and sin, it will be for a reformed Church, that is to say, the Protestant Churches.

I have already dealt at some length with the first three historical phenomena. At times it has given rise to reactionary spirited counter-positions on the matter, sometimes those positions have degenerated into a diatribe. That is of course undesirable. At the risk of renewing such a diatribe, and in the more positive interests of free speech and truth, I’d like for the moment to tackle here the fifth of the above mentioned phenomena, the one on the Crusades and some of their assumptions and implications. I suppose the first thing that should be said about all those phenomena within Christianity is that they are historical and cannot be denied as existing at one time. To deny that is to make a dialogue impossible. But on the other hand we should remember well the fact of their historicity, that all historical phenomena are subject to an interpretation which may turn out to be correct or perhaps misleading. That an historical interpretation of an event cannot be made outside its historicity by 20/20 hindsight; its narration has to be kept within the period one is describing. I should mention here that to insure that such was the case, I have drawn for inspiration and historical correctness from an excellent book on the subject by Jonathan Riley-Smith, titled What were the Crusades?  

Before we attempt an answer to such a question let us situate the Crusades within historical time. They took place within a span of approximately two centuries within middle Middle Ages, that is outside of the Dark Ages (500-800 AD) and before the higher Middle Ages: between 1096 to 1270. There were seven of them and only the first was successful as a military mission. It should be kept in mind that the Moslems, the new religion on the block attempting to overrun the whole of Europe, were already in Palestine some 450 years earlier. The unintended but more beneficial consequences were a unification that occurred among different nations and people in Europe, the economic and cultural exchanges between East and West that occurred in the defense of a common cultural heritage, Christianity.

Since those Crusades had the Church’s blessing the question arises: had the Church reversed its attitude toward violence and war in general. The myth has been propagated that it did. But in fact, as the just war theory of St. Augustine and its principle of proportionality proclaims, Christianity, since its beginning, had never been absolutely pacifist. It did consider war as a last resort to be avoided whenever possible but at times preferable as a lesser evil. Even Jesus never condemned soldiers for being soldiers. This is an important consideration at a time such as ours when once again men go around in Palestine decapitating and committing all sorts of atrocities are dreaming of Sharia law in the Vatican, while others talk of “a clash of civilizations” and an alliance of the West which some have called a call for a new Crusade to defend the West’s values.
Which brings us to the second crucial question. Who were the aggressors? Some do not hesitate to say that the Christians were the imperialistic aggressors. But wait a minute. The conflict between Islam and Christianity began not with first Crusade but with the birth of Islam in the 7th century A.D. when the Muslim conquest began encircling the West on the Western front with the conquest of Spain and the Byzantine Empire on the Eastern front. A very good case can be made that the aggressors were the Muslims, even if at first it looks as if it were the Christians who went looking for trouble and adventure in the Middle East. No historian has ever condemned Scipio the African for moving the Roman army to North Africa to finally defeat Hannibal in North Africa. All one has to do is to remember that Hannibal had already defeated the Romans three times in the Italian peninsula. The same applies to Western Europe which saw an outpost such as Vienna threatened by the Turks.
That that there were atrocities committed during the Crusades is undeniable but here again we need to keep in mind that atrocities usually go together with any war. The crusades had their share of heroes and villains, saints and sinners. The Church never approved the Sack of Jerusalem and Constantinople. The Pope at the time (Innocent III) said of the incident of Constantinople “No wonder the Greeks call you dogs,” and he excommunicated those responsible. The anti-Jewish pogrom were also in direct violation of a Papal decree protecting Jews. The children’s crusade was never approved by the Church.

The other myth or gratuitous charge against the Church is that it granted indulgences for evil. The crusades were not for the purpose of converting the Moslems. In that sense they were not, strictly speaking religious wars. More properly they were an armed pilgrimage. Moreover this pilgrimage, a holy act, was often subverted by “crusaders” with economic or political personal agendas. Blessed Urban II, the Pope who called the first Crusade never promised indulgences to all crusaders, only to those undertook the crusade for devotional purposes. Each crusader made a vow, signified by the wearing of a cloth cross, and he (or she) was rewarded with the grant of an indulgence and certain temporal privileges. A distinguishing feature of crusading was that the cross was enjoined on men and women not as a service, but as a penance, the association of which with war had been made about a decade before the First Crusade. While holy war had had a long history, the idea of penitential war was unprecedented in Christian thought. It meant that a crusade was for the crusader only secondarily about service in arms to God or benefiting the Church or Christianity; it was primarily about benefiting himself. He was engaged in an act of self-sanctification. Those were the precondition for earning indulgences or commuting of the time to be spent in purgatory for one’s transgressions. On the contrary, it was the Muslims who promised unconditional and instant Heaven to all their war dead.

The figure for the Muslim dead, which used to range from ten to seventy thousand on the basis of accounts written long after the event, ought to be revised downward. A contemporary Muslim source has been discovered that puts the number at three thousand. Three thousand men and women is still a lot of people, of course, but it is low enough to make one wonder why the Western eyewitnesses, who gloried in generalized descriptions of slaughter, felt the need to portray a bloodbath.

On the other hand, Smith points out that “the behavior of the crusaders in the East cannot be considered to have been quantitatively worse than that of those fighting in any ideological war, the behavior of the crusaders in Europe could sometimes be abominable, even by the standards of the time. Before heading off to the Jerusalem crusades in the twelfth and thirteenth centuries, some Europeans ‘prepared themselves’ through violent outbreaks of anti-Judaism in France, Germany, and England. During the crusades launched against fellow Christians or heretics, the most unpleasant examples of loss of discipline and control took place (the sacks of Constantinople in 1204 and of Béziers in 1209 spring to mind). If we are going to express contrition for the behavior of the crusaders, it is not so much to the Muslims that we should apologize, but to the Jews and to our fellow Christians.”

 

The politically correct position nowadays is to apologize for past atrocities. But the question arises: should we be apologizing at all? No crusade was actually proclaimed against the Jews. As far as crusading itself is concerned, most Muslims do not view the crusades, in which they anyway believe they were victorious, in isolation. Islam has been spasmodically in conflict with Christianity since the Muslim conquests of the seventh century, long before the First Crusade, and the crusading movement was a succession of episodes in a continuum of hostility between the two religions. In the late nineteenth century, however, they began to regard the West’s monopoly of commerce and colonialism as a change of tactics, in which everything the crusaders had lost to them was being more than regained. The crusades are merely symptomatic of a much longer-term competitiveness.

It is the Church’s subjective act of repentance for past sin that matters. How useful is it to condemn wars that were supported by great saints like Bernard of Clairvaux, Thomas Aquinas, Bridget of Sweden, Catherine of Siena, John of Capistrano, even possibly Francis of Assisi? Ought  we not rather challenge the widespread sentimental and unhistorical assumptions that genuine Christianity is an unambiguously pacific religion? The consensus among Christians on the use of violence has changed radically since the crusades were fought. Only in the sixteenth century did the nearly universal conviction that the use of violence depended on Christ’s direct or indirect authority begin to be undermined. Now violence can be justified only in terms of the needs of the “common good,” defined in relation to accepted earthly laws.
Smith says in this regard that “Just war arguments thus moved from the field of moral theology to that of law. The Encyclopédistes referred to the crusades as ces guerres horribles — but although they agreed that the use of force nearly always had evil consequences because of the suffering that accompanied it, they still regarded violence itself as being morally neutral. No one had yet taken the second step necessary for the emergence of “modern” just war theory, the conviction borrowed from pacifism that force is intrinsically evil — though conceding that it can nevertheless be condoned as a lesser evil.”

Our just war theory has become so embedded in our thinking that we forget that it represents a relatively short-lived departure from a much longer-lasting and more positive tradition. The founding of the League of Nations and then the United Nations and the judgments at the Nuremberg trials encouraged the revival of concepts of natural law, manifesting themselves in the notion of crimes against humanity and an insistence on judgment by international tribunals. So, the coalition assembled by President Obama is not a coalition of Crusaders out to impose their religion and values but a coalition buttressed and justified by humanitarian aims. This development subordinates international law to natural law and reintroduces ethical judgments to just war theory. Could it be that the restoration of Christ to the position of an authorizer of violence, which was a feature of the militant Christian liberation theology in the 1960s and early 1970s in Latin America and elsewhere, was part of this process of change?

A stance that justifies a “humanitarian” war on moral grounds has placed itself at least in the same field as that once occupied by crusade theorists. As Smith aptly writes: “The language that demands that our ancestors be posthumously anathematized is not too distant from that of the men who wanted the corpse of Pope Boniface VIII to be exhumed and burnt. We may be entering a period of conceptual uncertainty about the most difficult of all society’s dilemmas — when or when not to use force — and we need not emotion, but cool heads and an objective analysis of the past.”

To return to our initial argument: it seems that those who go around casting aspersions on religion in general and Catholicism in particular in the name of “enlightenment” without employing in their analysis the historical perspective, advocating peace at any cost, may ultimately be creating more confusion and shadows than light. Even Plato, after an admirable description via the myth of the cave of the condition of those who dwell in a dark cave chained to their misguided assumptions and seeing their shadows and appearances on a wall illumined by fire, asks if any of us can be sure of being out of the cave under the light of the sun and seeing reality as it really is. His wise answer is “only God knows.”

Note: this article, slightly modified, has already appeared in Ovi Magazine.

Professor Paparella has earned a Ph.D. in Italian Humanism, with a dissertation on the philosopher of history Giambattista Vico, from Yale University. He is a scholar interested in current relevant philosophical, political and cultural issues; the author of numerous essays and books on the EU cultural identity among which A New Europe in search of its Soul, and Europa: An Idea and a Journey. Presently he teaches philosophy and humanities at Barry University, Miami, Florida. He is a prolific writer and has written hundreds of essays for both traditional academic and on-line magazines among which Metanexus and Ovi. One of his current works in progress is a book dealing with the issue of cultural identity within the phenomenon of “the neo-immigrant” exhibited by an international global economy strong on positivism and utilitarianism and weak on humanism and ideals.

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International Law

A bird’s eye view of Asia: A continental landscape of minorities in peril

Dr. James M. Dorsey

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Many in Asia look at the Middle East with a mixture of expectation of stable energy supplies, hope for economic opportunity and concern about a potential fallout of the region’s multiple violent conflicts that are often cloaked in ethnic, religious and sectarian terms.

Yet, a host of Asian nations led by men and women, who redefine identity as concepts of exclusionary civilization, ethnicity, and religious primacy rather than inclusive pluralism and multiculturalism, risk sowing the seeds of radicalization rooted in the despair of population groups that are increasingly persecuted, disenfranchised and marginalized.

Leaders like China’s Xi Jingping, India’s Narendra Modi, and Myanmar’s Win Myint and Aung San Suu Kyi, alongside nationalist and supremacist religious figures ignore the fact that crisis in the Middle East is rooted in autocratic and authoritarian survival strategies that rely on debilitating manipulation of national identity on the basis of sectarianism, ethnicity and faith-based nationalism.

A bird’s eye view of Asia produces a picture of a continental landscape strewn with minorities on the defensive whose positioning as full-fledged members of society with equal rights and opportunities is either being eroded or severely curtailed.

It also highlights a pattern of responses by governments and regional associations that opt for a focus on pre-emptive security, kicking the can down the road and/or silent acquiescence rather than addressing a wound head-on that can only fester, making cures ever more difficult.

To be sure, multiple Asian states, including Malaysia, Indonesia, Thailand, the Philippines, Pakistan, Bangladesh and India have at various times opened their doors to refugees.

Similarly, the Association of Southeast Asian Nations’ (ASEAN) disaster management unit has focused on facilitating and streamlining repatriation of Rohingya refugees in Bangladesh.

But a leaked report by the unit, AHA Centre, in advance of last June’s ASEAN summit was criticized for evading a discussion on creating an environment in which Rohingya would be willing to return.

The criticism went to the core of the problem: Civilizationalist policies, including cultural genocide, isolating communities from the outside world, and discrimination will at best produce simmering anger, frustration and despair and at worst mass migration, militancy and/or political violence.

A Uyghur member of the Communist Party for 30 years who did not practice his religion, Ainiwa Niyazi, would seem to be the picture-perfect model of a Chinese citizen hailing from the north-western province of Xinjiang.

Yet, Mr Niyazi was targeted in April of last year for re-education, one of at least a million Turkic Muslims interned in detention facilities where they are forced to internalize Xi Jinping thought and repudiate religious norms and practices in what constitutes the most frontal assault on a faith in recent history.

If past efforts, including an attempt to turn Kurds into Turks by banning use of Kurdish as a language that sparked a still ongoing low level insurgency, is anything to go by, China’s ability to achieve a similar goal with greater brutality is questionable.

“Most Uyghur young men my age are psychologically damaged. When I was in elementary school surrounded by other Uyghurs, I was very outgoing and active. Now I feel like I have been broken… Quality of life is now about feeling safe,” said Alim, a young Uyghur, describing to Adam Hunerven, a writer who focuses on the Uyghurs, arrests of his friends and people trekking south to evade the repression in Xinjiang cities.

Travelling in the region in 2014, an era in which China was cracking down on Uyghurs but that predated the institutionalization of the re-education camps, Mr. Hunerven saw that “the trauma people experienced in the rural Uyghur homeland was acute. It followed them into the city, hung over their heads and affected the comportment of their bodies. It made people tentative, looking over their shoulders, keeping their heads down. It made them tremble and cry.”

There is little reason to assume that anything has since changed for the better. On the contrary, not only has the crackdown intensified, fear and uncertainty has spread to those lucky enough to live beyond the borders of China. Increasingly, they risk being targeted by the long arm of the Chinese state that has pressured their host countries to repatriate them.

Born and raised in a Rohingya refugee camp in Bangladesh, Rahima Akter, one of the few women to get an education among the hundreds of thousands who fled what the United Nations described as ethnic cleansing in Myanmar, saw her dreams and potential as a role model smashed when she was this month expelled from university after recounting her story publicly.

Ms. Akter gained admission to Cox’s Bazar International University (CBIU) on the strength of graduating from a Bangladeshi high school, a feat she could only achieve by sneaking past the camp’s checkpoints, hiding her Rohingya identity, speaking only Bengali, dressing like a Bangladeshi, and bribing Bangladeshi public school officials for a placement.

Ms Akter was determined to escape the dire warnings of UNICEF, the United Nations’ children agency, that Rohingya refugee children risked becoming “a lost generation.”

Ms. Akter’s case is not an isolated incident but part of a refugee policy in an environment of mounting anti-refugee sentiment that threatens to deprive Rohingya refugees who refuse to return to Myanmar unless they are guaranteed full citizenship of any prospects.

In a move that is likely to deepen a widespread sense of abandonment and despair, Bangladeshi authorities, citing security reasons, this month ordered the shutting down of mobile services and a halt to the sale of SIM cards in Rohingya refugee camps and restricted Internet access. The measures significantly add to the isolation of a population that is barred from travelling outside the camps.

Not without reason, Bangladeshi foreign minister Abul Kalam Abdul Momen, has blamed the international community for not putting enough pressure on Myanmar to take the Rohingyas back.

The UN “should go to Myanmar, especially to Rakhine state, to create conditions that could help these refugees to go back to their country. The UN is not doing the job that we expect them to do,” Mr. Abdul Momen said.

The harsh measures are unlikely to quell increased violence in the camps and continuous attempts by refugees to flee in search of better pastures.

Suspected Rohingya gunmen last month killed a youth wing official of Bangladesh’s ruling Awami League party. Two refugees were killed in a subsequent shootout with police.

The plight of the Uyghurs and the Rohingya repeats itself in countries like India with its stepped up number of mob killings that particularly target Muslims, threatened stripping of citizenship of close to two million people in the state of Assam, and unilateral cancellation of self-rule in Kashmir.

Shiite Muslims bear the brunt of violent sectarian attacks in Afghanistan and Pakistan. In Malaysia, Shiites, who are a miniscule minority, face continued religious discrimination.

The Islamic Religious Department in Selangor, Malaysia’s richest state, this week issued a sermon that amounts to a mandatory guideline for sermons in mosques warning against “the spread of Shia deviant teachings in this nation… The Muslim ummah (community of the faithful) must become the eyes and the ears for the religious authorities when stumbling upon activities that are suspicious, disguising under the pretext of Islam,” the sermon said.

Malaysia, one state where discriminatory policies are unlikely to spark turmoil and political violence, may be the exception that confirms the rule.

Ethnic and religious supremacism in major Asian states threatens to create breeding grounds for violence and extremism. The absence of effective attempts to lessen victims’ suffering by ensuring that they can rebuild their lives and safeguard their identities in a safe and secure environment, allows wounds to fester.

Permitting Ms. Akter, the Rohingya university student, to pursue her dream, would have been a low-cost, low risk way of offering Rohingya youth an alternative prospect and at the very least a reason to look for constructive ways of reversing what is a future with little hope.

Bangladeshi efforts to cut off opportunities in the hope that Rohingya will opt for repatriation have so far backfired. And repatriation under circumstances that do not safeguard their rights is little else than kicking the can down the road.

Said human rights advocate Ewelina U. Ochab: “It is easy to turn a blind eye when the atrocities do not happen under our nose. However, we cannot forget that religious persecution anywhere in the world is a security threat to everyone, everywhere.”

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International Law

Chinese ‘Darning’ in South China Sea and International Apathy

Prof. Pankaj Jha

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India has asked for the renewal of the contract with regard to exploration rights in Block 128 which is located in Vietnamese Exclusive Economic Zone(EEZ). The contract for exploration had expiredin June 2019. This effort to renew the contract is meant to give a signal to China that India would not succumb to Chinese bullying tactics and is a legitimate stakeholder in South China Sea/East Sea. China has threatened the joint exploration initiatives of Russia, India and Vietnam near Vanguard Bank. Chinese undertook assertive posture by deploying its advanced coastguard ships and even latest bombers. Chinese strategy in the months of July and August was to bring about a media fatigue in reporting so that major tensions or even ships cruising close to each other can be passed off as routine affair.

Many strategic commentators have stated that Chinese have been using the ‘salami slicing’ tactics in South China Sea/ East Sea but it is more of a darning in which the Chinese have been pinching the corners of South China Sea/ East Sea to create a Chinese strategic space through a critical grid. The expansion of Chinese activities in those areas which are not contested is meant to first get the resource profile of the region under the garb of research activity and also thwart any economic activity in adjoining areas of the contested waters. The biggest challenge is that the geographic coordinates of the nine-dash line is not clear, and the international response has only been a strong rhetorical statements. It is only when India has been intimidated and the US has started freedom of navigation sail that some responses are seen from the two countries. It needs to be noted that when a UN Security Council member(China) tries to undermine international regulations, and respect for international peace and stability in those contested waters then it is appropriate to raise the voice at the P-5 high table.

Among the international responses on the tensions near the Vanguard Bank,International Association of Democratic Lawyers (IADL) which supports international law under the Economic and Social Council of the United Nations (ECOSOC) criticized Chinese assertive aggression.Criticizing Chinese ships bullying in waters ofThi Tu island and Luconia Shoals, it released a statement stating that Chinese survey activities undertaken by Haiyang Dizhi 8 in continental shelf of Vietnam was complete disregard for Vietnamese sovereignty of the waters under UNCLOS 1982. IADL further urged the claimant states to sign and ratify the Code of Conduct (COC) and bring a compliance mechanism. European nations- UK, Germany and France also took strong position on the subject and deplored Chinese activities near Vanguard Bank and highlighted that tensions in the South China Sea “could lead to insecurity and instability in the region”. The latent tensions between US and China overflowed during the Indian Ocean Conference 2019 recently held (September 3-4) in Maldives where Harry Harris,US Ambassador to South Korea remarked, “China’s diplomacy seeks to force ASEAN members to define codes of conduct in the region dictated by Beijing and conforming to Chinese standards. You can see intimidation in China’s militarization and defiance of international law”. He added while responding to questions, “That the military bases that China has created…(with) literally a great wall of sand in the middle of the South China Sea are all illegal”.China’s Ambassador of Ocean Affairs Wei Hongtian attending the conference rebutted and said, “China has indisputable sovereignty over the Nansha Islands (Spratly Islands) in the South China Sea and adjacent waters…,” clearly justifying the bullying tactics adopted by his country. 

Looking into international response on the subject is more of a routine affair with India oft repeated stance that it supports freedom of navigation and freedom to explore and undertake commercial activities within EEZ of nations. If one analyses the Chinese annoying tactics then one can observe that it has intimidated countries across region starting with Malaysia, Philippines, Vietnam (the three claimants to South China Sea) and Japan (East China Sea) clearly defining the perimeter of the nine dash line. As China has built structures and even placed anti-aircraft and anti-ship missiles, and few fighter aircrafts, it wants to keep them in active mode through sorties and regular patrols outside the claimed zone. One can use the metaphor the ‘cow tongue is now salivating’. China has been trying hard to somewhat subjugate Vietnamese claims and this can be seen in the context of land borders also. In the India-China border there are non-demarcated pockets, Chinese soldiers regularly visit the contentious territories and express their claim through leaving certain signs. In the maritime domains, the same strategy is being adopted where recurrent visits and patrols would help them define new areas of control. The fishermen militia has been doing their task of forewarning and also collecting data with regard to passing ships and patrols. The fishermen militia of China is equipped with cameras and other equipment to collect as much information possible and report back to the party headquarters. More recently,there have been reports that China has deployed its highly sophisticated surveillance ships in Andaman waters, clearly marking its intent in checking India’s naval preparedness and the utility of the tri services command in Andaman and Nicobar Islands.

The international response to deteriorating situation in South China Sea has been discussed when Indian defence Minister Rajnath Singh visited Japan and also Indian Ambassador to Vietnam had a detailed discussion with the Vietnamese communist party leadership. The recent provocations in the oil block explored by ONGC, India might force India to deploy itscoast guard ships and also station one of the advanced corvettescloser to the Vietnamese EEZ. As alreadywith the situation getting out of hand, India would like to deploy its P-8I PoseidonMaritimeSurveillanceaircraft to protect its assets. Countries such asUK, Germany, France and Japan have alsoraisedconcernsrelated to the Chineseaggressive moves in the region and the recently conducted US –ASEAN exercisesbetween Gulf of Thailand and South China Sea would reinforce US presence in these waters. The problem with Chineseapproach it that it is extending itself far too wide without thinking about a serious backlash. In a hypotheticalsituation in case Vietnam allows stationing of the US ships around Vietnameseislands then Chinese hegemony would be seriously jeopardized. Also,Vietnam have kept the window open for negotiations and also bringing about peace in the waters as recurrent tensions and dangerousmaneuvers would be detrimental to the long term interest of all fishing communities. Chinahas also made it clearduring the recent visit of PhilippinesPresidentDuterte that the July 11,2016 ruling does not hold any meaning to the communist country. The option of joint exploration proposed by China is only meant to buy time and space so that the increasing rig deployment and operating costs would make smaller nations to wrench out making way for complete control of China even in those areas which are non-disputed and lie in EEZ of other countries.

The challenge is to makeChina accountable for itsactions and make it understand that the prickly attitude would mean that it would be antagonizing too many neighbours at the same time. India hasalready been annoyed because of China’s stance on abrogation of Article 370 and 35A in Kashmir and division of Jammu and Kashmir, and Ladakh as two Union territories, leading the informal discussion in the UN Security Council. PM Modi has been hesitant to start the informal dialogue with President Xi given the recent stance adopted by China on Kashmir issue. The complex equation which is emerging in South China Sea along with recurrent tensions would mean that China would emerge as the trouble maker with no respect for international law and maritime sovereign boundaries. The bullying by China will have identical effect across the region. The problem is what are the options for the international community when major oil companies have been asked not to venture in South China Sea and China is defining its new strategic courtyard. The exercises with US and group sail might become a recurrent feature and also tensions are going to rise. The challenge would be to reduce militarization of the contested waters given the fact that China is known for not respecting agreements and international laws. 

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Can the International Court of Justice answer Pakistan’s knock on its door?

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Authors: Shatakhi Kaul and Aaditya Vikram Sharma*

Pakistan’s Foreign Minister Mr. Shah Mehmood Qureshi has said that the country will approach the International Court of Justice against India’s recent actions in Jammu and Kashmir.Is this rhetoric or is there any substance in his comments?

On 5 August 2019, India revoked the special status given to Jammu and Kashmir under Article 370 of the Constitution of India. Pakistan’s Prime Minister, Mr. Imran Khan stated that he would take up this issue in all international forums. Significantly, on 16 August 2019, the dispute was heard by the United Nations Security Council (SC) for the first time since 1971, however no statement was issued by the SC. The Pakistani PM also stated that his country is considering how to approach the International Court of Justice (ICJ). On 20 August 2019, the Foreign Minister of Pakistan, Mr. Shah Mehmood Qureshi categorically stated that the country will approach the ICJ. The question which arises is whether the ICJ is a sustainable avenue for the Kashmir dispute?

The International Court of Justice

The ICJ is an international court which was established by the United Nations Charter in June 1945. Countries which join the United Nations (UN) automatically become parties to the ICJ. Located in the Peace Palace at the Hague, the court settles contentious disputes in accordance with international law. It also gives advisory opinions on legal questions referred to it by authorized UN organs and specialized agencies. To take up any case, the court first needs to establish its jurisdiction. As stated above, it has two types of jurisdictions— contentious and advisory.

Contentious Jurisdiction

Let’s first talk about contentious cases. If Pakistan wishes to file a claim against India at the ICJ, it would be under this jurisdiction. As per Article 34 of the Statute of the ICJ, only States can be parties to cases. Further, there will be no jurisdiction without the consent of the State concerned. So, if Pakistan files a case in the ICJ against India regarding Kashmir, the court will be able to go ahead with the case only if India gives consent to it. This consent is deemed to be given under Article 36 of the Statute of the ICJ, which deals with the compulsory jurisdiction of the court. However, Article 36 (2) allows countries to give declarations, which alters the general jurisdiction of the world court concerning them. These declarations are looked into by the court when a case is filed by one State against another. In case of a dispute regarding the ICJ’s jurisdiction, the matter is resolved by the court’s decision under Article 36 (6).

India’s declaration specifies that the ICJ’s jurisdiction does not extend to any matters dealing with any nation which is or was a member of the Commonwealth of Nations. Pakistan is a commonwealth nation. In 1999,Pakistan approached the ICJ after India shot down a Pakistani Breguet Atlantic maritime patrol aircraft over the Rann of Kutch. The court refused to entertain the case on the basis of India’s commonwealth declaration.

Further, both India and Pakistan have declared that no dispute shall be taken up by the ICJ in case a treaty mechanism exists. The Shimla Agreement, 1971 and the Lahore Declaration, 1999 form part of such an arrangement. But, there is another option for Pakistan. If an international treaty allows nations to approach the ICJ, then the doors are open to its intervention. For instance, in the Jadhav Case (India v. Pakistan), the ICJ deemed that it had jurisdiction through Article 1 of the Optional Protocol to the Vienna Convention on Consular Relations which had been ratified by both the countries.

Pakistan has said that it will approach the ICJ against the alleged human rights violations in Jammu and Kashmir. So, here, it would be apt to consider International Human Rights treaties. In a recent article, Judge James Crawford (currently a sitting judge at the ICJ) and Amelia Keane (formerly an Associate Legal Officer at ICJ) stated that only five Human Rights treaties allow access to the ICJ. India has ratified four of them- the Convention on the Prevention and Punishment of the Crime of Genocide, the Convention on the Political Rights of Women, the International Convention on the Elimination of All Forms of Racial Discrimination, and the Convention on the Elimination of All Forms of Discrimination Against Women. None of them apply to the situation at hand. The most relevant international human rights treaty, the International Covenant on Civil and Political Rights, 1966,does not open the door to approach the ICJ. In other words, a contentious jurisdiction for this issue will be very difficult (if not impossible), to establish for Pakistan.

Advisory Jurisdiction

Article 96 of the UN Charter allows either the General Assembly or the Security Council or any organ/specialized agency of the UN to approach the ICJ and request an advisory opinion. The opinion of the court is not binding but carries great weight. In such cases, the consent of States is not necessary. Further, the ICJ is willing to rule on questions which have both legal and political elements. This is what happened in the Advisory Opinion concerning the Legality of the Threat or Use of Nuclear Weapons. In that case, the ICJ ruled that the question put to it was a legal one, as it had to adjudge the case on the basis of relevant principles and rules of international law. The presence of the political aspect was irrelevant until the legal element existed.

The same happened recently when the ICJ rendered its Advisory Opinion in the Chagos Archipelago case. The Chagos islands historically formed part of the British Colony of Mauritius. In 1965, three years before Mauritius became independent, the British detached it from the colony and made it part of British Indian Ocean Territory (BIOT).  When Mauritius gained independence in 1968, the archipelago was denied to it. Mauritius tried to file a contentious case against Great Britain, but the ICJ lacked jurisdiction. However, the General Assembly (GA) was able to refer the question to the ICJ. In its opinion, the court deemed that the UK should end its control of the island as rapidly as possible.

So could an advisory case with reference to Kashmir end up at the ICJ? Maybe. In the Chagos Island case, the ICJ specifically noted that it had taken up the Chagos dispute because the GA had not asked it to determine a territorial question (para 86). The Kashmir dispute is fundamentally a territorial dispute. However, the human rights angle could still be explored by the court. Nevertheless, advisory cases can only end up with the ICJ if nations agree to do so. It is not clear if Pakistan would be able to wrangle up enough diplomatic muscle to bring majority nations on board in the UN for referring the dispute to the ICJ. In the SC meeting on the 16th of August, an isolated China rendered the sole support to Pakistan. It was a closed doors meeting and no statement was issued.

Closing

It seems Pakistan’s aim is not to get a decision from the world court, but rather to get the Kashmiri issue internationalised. Prima facie, ICJ has no jurisdiction in the matter. Its advisory jurisdiction cannot be compelled either. So will the ICJ open the door to Pakistan? It doesn’t seem likely.

*Aaditya Vikram Sharma is an Assistant Professor at Vivekananda Institute of Professional Studies, Delhi. Both authors are writing in their personal capacity.

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