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Days before Kulbhushan Jadhav death sentence, Pakistan laid ground at ICJ

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http://indianexpress.com/article/in...sentence-pakistan-laid-ground-at-icj-4653506/
Days before Kulbhushan Jadhav death sentence, Pakistan laid ground at ICJ
Pakistan said ‘national security’ matters cannot be The Hague’s jurisdiction
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Written by Shubhajit Roy | New Delhi | Published:May 13, 2017 6:00 am
Kulbhushan Jadhav. (File Photo)
TWELVE DAYS before Pakistan’s military court sentenced Kulbhushan Jadhav to death for “espionage and subversive activities”, Islamabad quietly gave a declaration to the International Court of Justice at The Hague stating that matters related to Pakistan’s “national security” would not be part of the ICJ’s jurisdiction.

Pakistan’s Permanent Representative to the United Nations in New York, Maleeha Lodhi, submitted the declaration to UN Secretary General Antonio Guterres on March 29, which superseded Pakistan’s earlier declaration to the ICJ on September 12, 1960.

The Indian Express examined both declarations and found that the national security clause was one of the key additions in the new declaration. These declarations are essentially terms and conditions under which a country decides to accept ICJ’s jurisdiction.

Top government sources in New Delhi said this was, in all likelihood, a “pre-emptive” step to counter India’s attempt to approach the ICJ and seek justice. “This clearly shows that the Pakistan government had made up its mind on the death sentence, and was trying to plug holes in its system,” said a top source.

Pakistan government sources confirmed to The Indian Express on Friday that it was done in “anticipation” of India’s move to approach the ICJ.
Lodhi’s declaration, on behalf of the Pakistan government, on March 29 said: “I have the honour, by direction of the President of the lslamic Republic of Pakistan, to declare that (the) Government of the Islamic Republic of Pakistan recognises as compulsory ipso facto and without special agreement in relation to any other state accepting the same obligation, the jurisdiction of the International Court of Justice under the Statute of the International Court of Justice… Provided that this declaration shall not apply to…” (the declaration lays out eight clauses) and “all matters related to the national security of the Islamic Republic of Pakistan.”

This clause was not a part of the previous declaration. India’s declaration, which was made on September 15, 1974 by then External Affairs Minister Swaran Singh, does not preclude the national security option.

Among the eight other clauses that Pakistan has listed are disputes connected with “any aspect of hostilities, armed conflicts, individual or collective self-defence or the discharge of any functions pursuant to any decision or recommendation of international bodies, the deployment of armed forces abroad, as well as action relating and ancillary thereto in which Pakistan is, has been or may in future be involved.”

India, too, has a similarly-worded clause in its declaration.

Pakistan has, in fact, used the national security clause to deny all consular access requests to the Indian government. India has so far made 16 such requests, and its case is primarily based on the violation of Vienna Convention of Consular Relations.

“We realised this declaration was made by Pakistan, which precluded the national security matters. That is one of the key reasons we decided to approach the ICJ on the basis of violation of VCCR, which is an internationally accepted law on consular relations,” said an Indian government source.

ICJ is scheduled to hear both countries on May 15 and take a decision on the case which has strained relations between the two countries in the last month-and-a-half.

also similar frustration could be seen in other media reports.
http://www.thehindu.com/todays-paper/tp-opinion/saving-jadhav/article18442937.ece
http://www.news18.com/news/india/ku...istan-to-reject-icj-jurisdiction-1400243.html
http://www.hindustantimes.com/india...jadhav-case/story-9XED5BxTwIGSnBIZ9xizZI.html
 
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https://thewire.in/135141/icj-india-pakistan-kulbhushan-jadhav/
Pakistan’s New Decalaration on ICJ Jurisdiction Will Have No Bearing on Kulbhushan Jadhav Case
By Devirupa Mitra on 13/05/2017Leave a comment
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Pakistan submitted a new declaration just a fortnight before Kulbhushan Jadhav was sentenced to death for espionage by a military court.


New Delhi: Pakistan’s latest declaration limiting the circumstances under which it will subject itself to the jurisdiction of the International Court of Justice (ICJ) will have no bearing on the Kulbhushan Jadhav consular access matter that India has raised before the world court, say legal experts.

“This case is not being brought by India under the court’s compulsory jurisdiction, as recognised by both India and Pakistan. Hence the declaration has no effect whatsoever,” said Shashank Kumar, who is currently a lawyer with the WTO’s appellate body. Kumar was previously the first Indian judicial law-clerk at the ICJ, as well as a legal adviser to the Iran-US Claims Tribunal.

It took Pakistan 57 years to modify its declaration, which spells out the conditions for accepting the ICJ’s dispute settlement authority. On March 29, Pakistan’s permanent representative to UN, Maleeha Lodhi, submitted a new declaration, which superseded the previous one made in September 1960.

Pakistan’s new declaration was deposited just a fortnight before a Pakistani army announced that Jadhav had been sentenced to death by a military court for espionage. Pakistan claims that Jadhav was behind a series of terror attacks and was a serving Indian soldier. Denying these allegations, India has said that Jadhav had already retired from the Indian navy and had been kidnapped by Pakistani security forces from inside Iranian territory.

After India filed the application before the court, ICJ president Rony Abraham wrote to the Pakistan government to hold off on the sentence. The oral hearings for the provisional measures requested by India will take place on May 15. India’s arguments will be made by Supreme Court lawyer Harish Salve, with Ministry of External Affair’s joint secretary (legal and treaties) V.D. Sharma and joint secretary (Pakistan-Afghanistan-Iran) Deepak Mittal also travelling to The Hague.

The declarations

Pakistan’s new declaration adds six more exceptions to the two in the 1960 declaration, under which Pakistan can’t be dragged to the Peace Palace in The Hague.

These bring them almost in line with India’s 1974 declaration, except for some key sentences that Pakistan is likely to highlight during the hearings on Monday. According to clause (e), the ICJ will not have compulsory jurisdiction on “all matters related to the national security of the Islamic Republic of Pakistan”.

Pakistan has been repeatedly stated that Jadhav is an Indian spy and, therefore, not covered by the Vienna Convention for Consular Relations.

The next pertinent clause states that disputes under a multilateral treaty cannot be adjudicated by the ICJ unless all signatories to the pact were parties to the case before the court or the Pakistan government had specifically agreed to the jurisdiction.

This is not the first time that Pakistan has changed its declaration accepting the ICJ’s compulsory jurisdiction. The first submission was made on June 22, 1948, less than a year after independence. It was terminated and replaced with a new one in 1957.

This lasted for three years, before it was superseded in 1960. This lasted for over 40 years, before Pakistan finally modified it for the fourth time in March this year.

India had first recognised the ICJ’s jurisdiction with a declaration in January 1956 that superseded in September 1959 with a new one, which increased the number of exceptions from four to six. These were:


(i) Disputes, in regard to which the Parties to the dispute have agreed or shall agree to have recourse to some other method or methods of settlement.


(ii) Disputes with the Government of any State which, on the date of this Declaration, is a Member of the Commonwealth of Nations.


(iii) Disputes in regard to matters which are essentially within the jurisdiction of the Republic of India.


(iv) Disputes concerning any question relating to or arising out of belligerent or military occupation or the discharge of any functions pursuant to any recommendation or decision of an organ of the United Nations, in accordance with which the Government of India have accepted obligations.


(v) Disputes in respect of which any other party to a dispute has accepted the compulsory jurisdiction of the International Court of Justice exclusively for or in relation to the purposes of such dispute; or where the acceptance of the Court’s compulsory jurisdiction on behalf of a party to the dispute was deposited or ratified less than twelve months prior to the filing of the application bringing the dispute before the Court.


(vi) Disputes with the Government of any State with which, on the date of an application to bring a dispute before the Court, the Government of India has no diplomatic relations.


India modified this declaration in 1974, which continues to stand today. New Delhi’s decision to include more reservations was dictated by Pakistan’s move in 1973 to challenge India before the ICJ to direct it from sending 195 prisoners of war to Bangladesh for trial. India claimed that the ICJ did not have jurisdiction, but this was not accepted by the court, which initiated oral hearings. India, however, did not take part in the oral proceedings from June 4-26, 1973.

Eventually, Pakistan withdrew the case after an agreement was signed in August 1973, but it made India realise that there had to be a more restrictive declaration. In September 1974, India submitted a new agreement, which increased the reservations to eleven, with sub-clauses.

A precedent

The timing of the new declaration may raise suspicion that Pakistan was attempting to fend off any possible move by India to approach the ICJ over Jadhav. But legal analysts say this should not impact India’s case.

Pakistan’s arguments against the application of the UN judicial body’s authority would, therefore, have to be based on both countries’ acceptance of Vienna convention’s optional protocol.

Further, India’s case that subsequent declaration of compulsory jurisdiction does not hold water could be aided by a precedence before the same court in another case involving the two countries.

India had gone to the ICJ in 1971 to challenge the jurisdiction of the International Civil Aviation Organisation (ICAO) to interfere with its sovereign right to ban Pakistani overflights. At that time, Pakistan consisted of two parts, flanking India’s eastern and western borders.

India had argued that the dispute could be resolved without any reference to the ICAO and the International Air Services Transit Agreement, since New Delhi had never revived the treaties after 1966 and had terminated them in 1971 after a hijacking incident.

In one of its arguments in favour of the ICAO council’s competence to decide on India’s ‘breach’ of the two treaties, Pakistan had claimed that the ICJ lacked authority due to the effect of India’s reservation on disputes with other Commonwealth nations in its acceptance of the court’s compulsory jurisdiction.

“In other words, in that case, Pakistan put forward the exact argument that is being suggested now: that the reservations to the Court’s compulsory jurisdiction under the optional clause somehow applied to, and therefore narrowed, the Court’s jurisdiction under the Vienna Convention on Consular Relations Optional Protocol,” said Kumar.

He noted that in the ICAO council case, the ICJ had dealt with the treaties and the reservations in the declarations as “two separate and wholly independent sources of jurisdiction”. “ICJ had, therefore, expressly held the reservation in India’s subsequent declaration accepting the Court’s compulsory jurisdiction under the optional clause to be of no relevance in determining the Court’s jurisdiction under the earlier treaties,” asserted Kumar.

Even India’s public statements had made it clear that arguments will be made by its lawyers not by referencing the compulsory jurisdiction, but based on the legal cover provided by the Vienna Convention’s optional protocol.

“It is a consular matter,” MEA spokesperson Gopal Baglay asserted.

Officials privy to India’s arguments state that while Pakistan will tout the 2008 bilateral agreement on consular access, India will not only argue that the pact does not supersede the ICJ’s jurisdiction, but that the document itself cannot be invoked before the UN judicial body.

According to UN Charter, no treaty that has not been registered with the UN Secretariat by a signatory can be invoked before any “organ of the United Nations”. Sources confirmed that neither India nor Pakistan had, so far, deposited the 2008 agreement with the UN.

summary:
so india is breaking it's own treaties.
what Pakistan did in march is nothing new. India used exact same words in declaration years ago. We just copied indian declaration.
Pakistan will win the case.
 
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Days before Kulbhushan Jadhav death sentence, Pakistan laid ground at International Court of Justice
Pakistan said ‘national security’ matters cannot be The Hague’s jurisdiction

Written by Shubhajit Roy | New Delhi | Updated: May 13, 2017 12:50 pm
kulbhushan7591.jpg
Kulbhushan Jadhav. (File Photo)

TWELVE DAYS before Pakistan’s military court sentenced Kulbhushan Jadhav to death for “espionage and subversive activities”, Islamabad quietly gave a declaration to the International Court of Justice at The Hague stating that matters related to Pakistan’s “national security” would not be part of the ICJ’s jurisdiction.

Pakistan’s Permanent Representative to the United Nations in New York, Maleeha Lodhi, submitted the declaration to UN Secretary General Antonio Guterres on March 29, which superseded Pakistan’s earlier declaration to the ICJ on September 12, 1960.

The Indian Express examined both declarations and found that the national security clause was one of the key additions in the new declaration. These declarations are essentially terms and conditions under which a country decides to accept ICJ’s jurisdiction.

Top government sources in New Delhi said this was, in all likelihood, a “pre-emptive” step to counter India’s attempt to approach the ICJ and seek justice. “This clearly shows that the Pakistan government had made up its mind on the death sentence, and was trying to plug holes in its system,” said a top source.

Pakistan government sources confirmed to The Indian Express on Friday that it was done in “anticipation” of India’s move to approach the ICJ.

Lodhi’s declaration, on behalf of the Pakistan government, on March 29 said: “I have the honour, by direction of the President of the lslamic Republic of Pakistan, to declare that (the) Government of the Islamic Republic of Pakistan recognises as compulsory ipso facto and without special agreement in relation to any other state accepting the same obligation, the jurisdiction of the International Court of Justice under the Statute of the International Court of Justice… Provided that this declaration shall not apply to…” (the declaration lays out eight clauses) and “all matters related to the national security of the Islamic Republic of Pakistan.”

This clause was not a part of the previous declaration. India’s declaration, which was made on September 15, 1974 by then External Affairs Minister Swaran Singh, does not preclude the national security option.

Among the eight other clauses that Pakistan has listed are disputes connected with “any aspect of hostilities, armed conflicts, individual or collective self-defence or the discharge of any functions pursuant to any decision or recommendation of international bodies, the deployment of armed forces abroad, as well as action relating and ancillary thereto in which Pakistan is, has been or may in future be involved.”

India, too, has a similarly-worded clause in its declaration.

Pakistan has, in fact, used the national security clause to deny all consular access requests to the Indian government. India has so far made 16 such requests, and its case is primarily based on the violation of Vienna Convention of Consular Relations.

“We realised this declaration was made by Pakistan, which precluded the national security matters. That is one of the key reasons we decided to approach the ICJ on the basis of violation of VCCR, which is an internationally accepted law on consular relations,” said an Indian government source.

ICJ is scheduled to hear both countries on May 15 and take a decision on the case which has strained relations between the two countries in the last month-and-a-half.
 
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India getting disgraced everywhere. Their little terrorist busted red handedly. Now we going to hang this little terrorist of theirs in front of the whole world.

Excellent move by Pakistan to sideline ICJ. There can be no case on a terrorist responsible for the murder of innocent Pakistanis.
 
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There are loop holes in the agreement and Icj has juristriction.
 
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https://defence.pk/pdf/threads/indi...come-of-icj-decision-kalboshan-hanged.495450/

somebody merge both threads.

https://thewire.in/135141/icj-india-pakistan-kulbhushan-jadhav/
Pakistan’s New Decalaration on ICJ Jurisdiction Will Have No Bearing on Kulbhushan Jadhav Case
By Devirupa Mitra on 13/05/2017Leave a comment
Share this:
Pakistan submitted a new declaration just a fortnight before Kulbhushan Jadhav was sentenced to death for espionage by a military court.


New Delhi: Pakistan’s latest declaration limiting the circumstances under which it will subject itself to the jurisdiction of the International Court of Justice (ICJ) will have no bearing on the Kulbhushan Jadhav consular access matter that India has raised before the world court, say legal experts.

“This case is not being brought by India under the court’s compulsory jurisdiction, as recognised by both India and Pakistan. Hence the declaration has no effect whatsoever,” said Shashank Kumar, who is currently a lawyer with the WTO’s appellate body. Kumar was previously the first Indian judicial law-clerk at the ICJ, as well as a legal adviser to the Iran-US Claims Tribunal.

It took Pakistan 57 years to modify its declaration, which spells out the conditions for accepting the ICJ’s dispute settlement authority. On March 29, Pakistan’s permanent representative to UN, Maleeha Lodhi, submitted a new declaration, which superseded the previous one made in September 1960.

Pakistan’s new declaration was deposited just a fortnight before a Pakistani army announced that Jadhav had been sentenced to death by a military court for espionage. Pakistan claims that Jadhav was behind a series of terror attacks and was a serving Indian soldier. Denying these allegations, India has said that Jadhav had already retired from the Indian navy and had been kidnapped by Pakistani security forces from inside Iranian territory.

After India filed the application before the court, ICJ president Rony Abraham wrote to the Pakistan government to hold off on the sentence. The oral hearings for the provisional measures requested by India will take place on May 15. India’s arguments will be made by Supreme Court lawyer Harish Salve, with Ministry of External Affair’s joint secretary (legal and treaties) V.D. Sharma and joint secretary (Pakistan-Afghanistan-Iran) Deepak Mittal also travelling to The Hague.

The declarations

Pakistan’s new declaration adds six more exceptions to the two in the 1960 declaration, under which Pakistan can’t be dragged to the Peace Palace in The Hague.

These bring them almost in line with India’s 1974 declaration, except for some key sentences that Pakistan is likely to highlight during the hearings on Monday. According to clause (e), the ICJ will not have compulsory jurisdiction on “all matters related to the national security of the Islamic Republic of Pakistan”.

Pakistan has been repeatedly stated that Jadhav is an Indian spy and, therefore, not covered by the Vienna Convention for Consular Relations.

The next pertinent clause states that disputes under a multilateral treaty cannot be adjudicated by the ICJ unless all signatories to the pact were parties to the case before the court or the Pakistan government had specifically agreed to the jurisdiction.

This is not the first time that Pakistan has changed its declaration accepting the ICJ’s compulsory jurisdiction. The first submission was made on June 22, 1948, less than a year after independence. It was terminated and replaced with a new one in 1957.

This lasted for three years, before it was superseded in 1960. This lasted for over 40 years, before Pakistan finally modified it for the fourth time in March this year.

India had first recognised the ICJ’s jurisdiction with a declaration in January 1956 that superseded in September 1959 with a new one, which increased the number of exceptions from four to six. These were:


(i) Disputes, in regard to which the Parties to the dispute have agreed or shall agree to have recourse to some other method or methods of settlement.


(ii) Disputes with the Government of any State which, on the date of this Declaration, is a Member of the Commonwealth of Nations.


(iii) Disputes in regard to matters which are essentially within the jurisdiction of the Republic of India.


(iv) Disputes concerning any question relating to or arising out of belligerent or military occupation or the discharge of any functions pursuant to any recommendation or decision of an organ of the United Nations, in accordance with which the Government of India have accepted obligations.


(v) Disputes in respect of which any other party to a dispute has accepted the compulsory jurisdiction of the International Court of Justice exclusively for or in relation to the purposes of such dispute; or where the acceptance of the Court’s compulsory jurisdiction on behalf of a party to the dispute was deposited or ratified less than twelve months prior to the filing of the application bringing the dispute before the Court.


(vi) Disputes with the Government of any State with which, on the date of an application to bring a dispute before the Court, the Government of India has no diplomatic relations.

India modified this declaration in 1974, which continues to stand today. New Delhi’s decision to include more reservations was dictated by Pakistan’s move in 1973 to challenge India before the ICJ to direct it from sending 195 prisoners of war to Bangladesh for trial. India claimed that the ICJ did not have jurisdiction, but this was not accepted by the court, which initiated oral hearings. India, however, did not take part in the oral proceedings from June 4-26, 1973.

Eventually, Pakistan withdrew the case after an agreement was signed in August 1973, but it made India realise that there had to be a more restrictive declaration. In September 1974, India submitted a new agreement, which increased the reservations to eleven, with sub-clauses.

A precedent

The timing of the new declaration may raise suspicion that Pakistan was attempting to fend off any possible move by India to approach the ICJ over Jadhav. But legal analysts say this should not impact India’s case.

Pakistan’s arguments against the application of the UN judicial body’s authority would, therefore, have to be based on both countries’ acceptance of Vienna convention’s optional protocol.

Further, India’s case that subsequent declaration of compulsory jurisdiction does not hold water could be aided by a precedence before the same court in another case involving the two countries.

India had gone to the ICJ in 1971 to challenge the jurisdiction of the International Civil Aviation Organisation (ICAO) to interfere with its sovereign right to ban Pakistani overflights. At that time, Pakistan consisted of two parts, flanking India’s eastern and western borders.

India had argued that the dispute could be resolved without any reference to the ICAO and the International Air Services Transit Agreement, since New Delhi had never revived the treaties after 1966 and had terminated them in 1971 after a hijacking incident.

In one of its arguments in favour of the ICAO council’s competence to decide on India’s ‘breach’ of the two treaties, Pakistan had claimed that the ICJ lacked authority due to the effect of India’s reservation on disputes with other Commonwealth nations in its acceptance of the court’s compulsory jurisdiction.

“In other words, in that case, Pakistan put forward the exact argument that is being suggested now: that the reservations to the Court’s compulsory jurisdiction under the optional clause somehow applied to, and therefore narrowed, the Court’s jurisdiction under the Vienna Convention on Consular Relations Optional Protocol,” said Kumar.

He noted that in the ICAO council case, the ICJ had dealt with the treaties and the reservations in the declarations as “two separate and wholly independent sources of jurisdiction”. “ICJ had, therefore, expressly held the reservation in India’s subsequent declaration accepting the Court’s compulsory jurisdiction under the optional clause to be of no relevance in determining the Court’s jurisdiction under the earlier treaties,” asserted Kumar.

Even India’s public statements had made it clear that arguments will be made by its lawyers not by referencing the compulsory jurisdiction, but based on the legal cover provided by the Vienna Convention’s optional protocol.

“It is a consular matter,” MEA spokesperson Gopal Baglay asserted.

Officials privy to India’s arguments state that while Pakistan will tout the 2008 bilateral agreement on consular access, India will not only argue that the pact does not supersede the ICJ’s jurisdiction, but that the document itself cannot be invoked before the UN judicial body.

According to UN Charter, no treaty that has not been registered with the UN Secretariat by a signatory can be invoked before any “organ of the United Nations”. Sources confirmed that neither India nor Pakistan had, so far, deposited the 2008 agreement with the UN.
 
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Do agreee . Kulbushan matter may har trah say badnami india ki hi honi or eventually us ki laash hi jani ha Pakistan sey :).


If this works out the way it looks like it is going, this will be an epic humiliation for India. I always maintained that Modi was the best foreign minister Pakistan ever had! LOL!
 
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This merely highlights that the trial was a sham trial in a kangaroo court - the decision was known to the Government before the military court passed its judgment? Indians don't realistically expect to get Jadhav but it would be handy to expose the Pakistani system.

The Supreme Court of India is perhaps the biggest kangaroo court of the region.

It didn't even follow set precedent in case of Afzal Guru, a Kashmiri fruit seller... and the decision of the court on which bases he was hanged is perhaps the most laughable and ironic in present times... for the "desires of public".

No counsellor or investigating team was given access to Ajmal Kasab also!

So spare us the bloody drama and piss off!
 
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There are loop holes in the agreement and Icj has juristriction.

It is jurisdiction. No, they don't have any. Let's see what they can do for you. Ultimately, we are going to decide the fate of this little terrorist.

The Supreme Court of India is perhaps the biggest kangaroo court of the region.

It didn't even follow set precedent in case of Afzal Guru, a Kashmiri fruit seller... and the decision of the court on which bases he was hanged is perhaps the most laughable and ironic in present times... for the "desires of public".

No counsellor or investigating team was given access to Ajmal Kasab also!

So spare us the bloody drama and piss off!

LOL Indian courts couldn't hand out justice to Gujrat massacre victims. Today the biggest criminal is the leader of India. Goes to show the court justice system in India.
 
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It is jurisdiction. No, they don't have any. Let's see what they can do for you. Ultimately, we are going to decide the fate of this little terrorist.

Bin Laden was (allegedly) killed in Pakistan? Did we suffer any repercussions for that? No. Apart from the usual chorus of condemnation in the media no-one had the balls to touch us. The same with this Indian monkey. If we disregard any judgement, who is going to hold us accountable? No-one. We are Pakistan We have survived worse than ignoring a judgement from the ICJ. However, seems like we have a strategy in place to deal with this Indian drama. No worries. That terrorist Indian will never see the light of day again.
 
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