On ICJ’s Sticky Wicket

By: Editorial Team
Published: July 1, 2017
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When Kulbhushan Jadhav was arrested during a counter-intelligence raid, near Chaman in Balochistan on March 3, 2016, and discovered to be an Indian intelligence operative, perhaps no one was surprised. For years, Pakistan has known that India has been fomenting terrorism and violence in Balochistan.

As far back as July 2009, the then prime minister of Pakistan Yousuf Raza Gilani raised this issue with his Indian counterpart Manmohan Singh when they met on the side-lines of the Non Aligned Movement summit in Egypt. The formal communiqué included a line indicating that Gilani had raised the issue of Indian involvement in fomenting terrorism in Balochistan.

But what strengthens Pakistan’s case further and makes the Indian spy’s arrest stand out is the fact that Jadhav confessed to being an operative of the Research and Analysis Wing (RAW) and a serving commander in the Indian Navy.  New Delhi acknowledges that Jadhav was a naval officer, but claims that he had retired from the service.

Jadhav was found in possession of two passports – one of which was in the alias of Hussain Mubarak Patel, from Maharashtra, India. This is the first time that a high-ranking naval officer has been arrested on charges of terrorism and espionage.

While in custody, Jadhav made a full confession on video-tape, admitting he was involved in providing finances to separatist groups to sow discord in Pakistan and foment sectarian attacks in Karachi and on Hazara Shias in Balochistan. Perhaps one of the most dangerous activities Jadhav was involved in was training separatists for the naval combat operations to target Balochistan’s Gwadar Port as well as the Karachi Port. He also provided names of his handlers, indicating that this was concerted State-sponsored terrorism.

Key opposition parties accuse the government of failing to expose Indian state-sponsored terrorism… and mishandling Jadhav’s case before the ICJ

On April 10, this year, Jadhav was sentenced to death by a Field General Court Martial (FGCM).  But India approached the International Court of Justice (ICJ) at The Hague, arguing that Jadhav had not been given consular access during his trial. On 18 May 2017, the ICJ stayed the death sentence, to maintain the status quo ahead of the subsequent proceedings.

The ICJ’s order created a firestorm within Pakistan. Key opposition parties accused Prime Minister Nawaz Sharif’s government of failing to expose Indian state-sponsored terrorism in the country and mishandling Jadhav’s case before the ICJ, regarding jurisdiction.

Although the hearing of this case at The Hague is unlikely before September, the convicted Indian spy has appealed to the Chief of Army Staff General Qamar Javed Bajwa, to spare his life.

The Army, which released a second confessional video of Jadhav on June 22, said that in his appeal, Jadhav again admitted his involvement in espionage, terrorist and subversive activities in Pakistan and expressed “remorse at the resultant loss of many precious innocent lives and extensive damage to property due to his actions.”

However, the criticism on the Sharif government continues unabated.

Narratives interviewed Pakistan Peoples Party Senator Sherry Rehman and Foreign Office Spokesman Nafees Zakaria to ascertain the facts fuelling the controversy about the handling of Jadhav’s case before the ICJ.

Sherry Rehman: ‘Pakistan Hasn’t Done its Homework’

There has been a lot of debate that Pakistan should not have accepted the International Court of Justice (ICJ) jurisdiction in Indian spy Commander Kulbhushan Jadhav’s case. Do you think Pakistan had the choice?

Pakistan, like any other sovereign state exercises a degree of choice in picking its battles, its responses, the timing and the place. In my opinion, after making the death penalty announcement for Jadhav, we should have been ready for any eventuality. I am amazed that the government said it was taken by surprise. I cannot understand why legal experts employed later were not consulted immediately to protect Pakistan from international consequences.

Now at this stage, more important than the procedural phase of the case is what we did or did not do with the politics of the public international narrative.

After the ICJ ruling, the AGP stated: “Pakistan attended the hearing out of its utmost respect for the court and pursuant to the established jurisprudence that the challenge to jurisdiction can be made via appearance and not by abstaining from the process. Pakistan attended because of its conviction that the only way to resolve all outstanding issues is through peaceful means.”

My question is, why didn’t we robustly and effectively build this argument during the live-broadcast hearing in front of the world, when we had the opportunity to establish our high moral ground? Why did we go into this explanation/clarification mode after the ruling, when a negative dye had already been cast in the public opinion domain?

From a position of holding the high moral ground which was totally captured by Pakistan when we found him, we must try to understand how we got to the place where we were left defending our position at an important UN forum. There’s a lesson in this somewhere.

Our position takes long to craft, is poorly projected, and lacks power when it’s not made with passion from the right public office-holders

The ICJ gets jurisdiction in two ways; one where a state has signed its statute and given it jurisdiction. This can be done with or without reservations. Pakistan has signed the statute with reservations so the ICJ had no jurisdiction in the Jadhav case as Pakistan had made an exception for such cases.

The ICJ also gets jurisdiction where two or more states sign a treaty and give it jurisdiction over disputes regarding that treaty. Both Pakistan and India have signed the Vienna Convention on Consular Relations. Both had signed without reservation that part of the Treaty as well which gives the ICJ jurisdiction. That is how the ICJ got prima facie jurisdiction in the Jadhav case.

This means that if we did not want to give consular access, we should have built in the reservation for the VCCR long ago. We did not. Bear in mind that India did give Pakistan consular access for Ajmal Kasab (arrested after Mumbai attacks) to protect itself from such an eventuality. That is behind us now. We must not lose time, not this time around.

Has India scored a diplomatic, moral point by getting a stay in the Jadhav case?

There may be a perception that India may have scored some sort of diplomatic point, though there are several senior voices in that country which do not agree with that assessment. But India is in no position to make a moral point when they are unwilling to take cases where grave human rights abuses have been committed, such as the LoC firings and state-sponsored killings in Kashmir, before UN forums.

The issue is not about the legal outcome. Let’s be very clear. Jadhav is convicted of espionage and terrorism. He is not an ordinary Indian citizen. India is yet to answer very crucial questions regarding his status. We can’t have Delhi sending in serving officers, have them run around the country, be caught laughing on TV, only to send them back with a bag of gulab jamuns. No state does that.

At the end of the day, diplomacy is about staying on top of one’s story. At this point, for multiple reasons, Delhi is closely micro-managing its storyline. Our position takes long to craft, is poorly projected, and lacks power when it’s not made with passion from the right public office-holders.

Apart from that, we have a lot to work with, but if we give away the momentum on the narrative, then it is our own failing.

What happens if the ICJ gives a verdict against any country… is it mandatory to accept it?

The fact is that the ICJ is not in a position to enforce all its orders. At the end of the day, Pakistan will have the final say on Jadhav’s fate. Foreign policy cannot be about bluster, nor can it only be about personal conversations in high-profile meetings, especially if it is publicly said that the said meetings had nothing to do with the business of the state. What leaders should do, though, is weigh what lies in the balance for their country in any set of imminent futures. You have to game your wins and losses. And part of that gaming is once the decision on an optimal course is taken, you have to expend political capital on managing the messaging both at home and abroad. You cannot ignore either. That lies at the heart of good diplomacy, as well as democracy.

As it stands, I don’t think we have seriously even done the homework for what suits Pakistan, and how we can message that. At a closer level, I am not sure Islamabad has even convened the kind of long-burn meetings needed to build such strategies and work their messaging for an economically interdependent world.

I don’t see any candid inter-agency convergence on the Jadhav issue since he was found on Pakistan’s soil. So it’s not just about the case, but what we have done with his capture, with the options we have. Nor has responsibility been taken in the right or needful places.

We should be thinking strategically, not tactically. The terms of reference should naturally include potential impacts on our future, and rights and responsibilities as an international actor. On the other hand, although states have not been sanctioned by the UN Security Council for not complying with the ICJ, it may be injudicious for Pakistan to totally thumb our nose at the ICJ’s orders. We need to forge a path of actions and messages that protect Pakistan’s integrity and sovereignty, as well as its exposure to international responses outside, say the ICJ. Non-compliance can lead to more orders against Pakistan and risk reparations.

Pakistan must chalk out a robust strategy for the second phase of the case… this time no one should hide behind the excuse of not having enough time

Have we done contingency planning for an adverse outcome? And even if the outcome is adverse, we need to consider what the ICJ would decide. Will it acquit Jadhav and order he be handed to India? Of course not. Will it declare the death penalty illegal? No, that is beyond the scope of its authority.

At worst, it will declare Jadhav’s conviction and sentence unlawful because he was denied consular access. Pakistan at that time will have three options: defy the UN-linked ICJ’s nose and execute Jadhav, let Jadhav go free or give Jadhav consular access and retry him. The first invites international opprobrium, the second rubs the nation’s nose in the dirt. The government should consult politically first, but likely to do neither.

A third option will have to be found at an appropriate time, which allows Pakistan to act both as a respectable member of the international community and an autonomous sovereign country.

The opposition and many experts blame the Foreign Office and the government for what they call the poor showing at the ICJ. Has Pakistan been unable to fight the case effectively?

The problem started much before the ICJ. These cases have to be carefully worked at right from the beginning. Pakistan should have responded to India’s requests for consular access after taking proper legal advice. The letters sent by us were mindless, had no substance, and gave India the smoking gun it needed for the ICJ.

As a member of the Parliament’s National Security Committee, I am on public record as saying that I am not convinced that we dealt with this case with our best resources. At meetings I was quite unsatisfied by the poor preparation and opacity of government officials. The Parliament in any in-camera committee was not consulted prior to presenting the case before the ICJ. If nothing else, there would have been a political convergence on the issue. The PPP government, for instance, constantly stayed mindful of taking tough decisions such as cutting off US and NATO supply lines for seven months by constantly keeping the Parliament in the loop.

Here, I don’t think the powerless Foreign Office should be made the fall guy alone. It was just the messenger. This was the responsibility of the Foreign Minister and the Prime Minister, who in this case are one and the same. The government said that they were not able to prepare for the case adequately because of time constraints, but the possibility of India approaching the ICJ should have been on the government’s radar from the day when Jadhav was arrested.

I would have called a meeting to game Indian responses the day he was captured, as well as the day his penalty was announced. Parliament should have been taken in confidence and all responses given after taking the best possible legal advice. Did they not know that Pakistan had signed the Optional Protocol to the Vienna Convention on Consular Relations without reservations? Did they not know that it gave the ICJ jurisdiction to decide all disputes relating to interpretation and implementation of the Vienna Convention? This clearly meant that it was only a matter of time before India approached the ICJ. They could not have been surprised unless they were ignorant of these basics.

How do you see the performance of the Pakistani lawyer at the ICJ? Was it a mistake not to appoint the ad hoc judge?

It was indeed a big mistake not appointing an ad hoc judge at that time, although this government refuses to admit the serious lapse. While a Pakistani ad hoc judge may not have altered the balance materially, it would have had a better political outcome in the long term. It was a missed opportunity and negligence on the part of the whole of government. I don’t want to beat up on one lawyer whom I do not know of, but the fact is he was put in the spotlight, and he needed to watch his performance. It is bizarre that to my mind, our counsel did not utilise the allocated time to make his case, he did not respond to the charge of breaching the Vienna Convention. It is not enough to say that he had spoken enough and had made his point.

India’s counsel focused on the law whereas Pakistan’s focused on the facts.

As of 2016, Pakistan has 2,977 Supreme Court enrolled lawyers and yet our team was not even supervised by the Attorney General who was kept busy with ‘other cases’ at home instead of at The Hague. Pakistan has no shortage of international law experts and their opinion should have been urgently sought by the government, especially in sensitive, high-profile inflection points like this.

The government’s failure to understand the importance of a strong international legal team has led to catastrophic losses in the past. It is too busy managing its own political survival to worry about Pakistan’s, sadly.

Do you think Pakistan has been able to highlight the case of the Indian spy worldwide effectively and at the world capitals or were more efforts needed?

We still have a chance to make a powerful case. By the time we received the first letter from the ICJ, we should have taken public international law advice, as well as political counsel at home. Lawyers should have been consulted before letters were written off.

I would have had a first rate crisis communication firm on hand to manage our story and best advise on messaging. There is much that could have been done, and should have been done. History will mark these judgements both for precedence and politics.

What should be the course of action in this case now?

We need to work on the preliminary objections where Pakistan must focus and be clear, for instance, on why the ICJ does not have jurisdiction. It can argue that Pakistan’s Bilateral Treaty with India on consular relations trumps the Vienna Convention and excludes ICJ jurisdiction.

We should also consider the exceptions in the Geneva Convention with regard to spies and argue that it has to be read with the Vienna Convention. It is not a cake walk. International law can be a minefield of traps, some of which we have already walked into. We must work hard to put together a defence which next time round doesn’t get hit out of the rules and clauses that apply to spies.

Now Pakistan must chalk out a robust strategy for the second phase of the case. The counsel should have focused on the issue of whether or not the ICJ has jurisdiction. We need a sharper, bigger team which considers every point. This time no one should hide behind the excuse of not having enough time.

This case needs to include all relevant institutions in Pakistan and an empowered Foreign Minister should have consulted and briefed the NSC of Parliament regularly. Pakistan’s diplomatic missions abroad should be fully mobilised to counter India’s campaign against Pakistan.

Why is Prime Minister Nawaz Sharif charged with being non-serious in highlighting Indian sponsored terrorism in Pakistan on the world stage in an aggressive manner?

The stakes are never low in international diplomacy, but the government seems oblivious of this hard reality.

Today international diplomacy is about telling a better story, about telling it well, and building it on strategic priorities based on facts. The Prime Minister did not bother to take Jadhav’s name at any international forum while India has been running a smear campaign across all forums. Why hasn’t the government stood up to these allegations and defended the country and our national integrity?

The PM’s United Nations General Assembly speech was a wasted opportunity. We are not war mongers, we cannot afford to be anything but a state that seeks peace in the region. But peace can’t be at any cost. We have all read our history. A victor’s peace for one world war created another. We should remind the world of our deterrent capability and then sue for reciprocal terms of peace, stalemate or competition.

If Prime Minister Narender Modi and Delhi’s Ministry of External Affairs have been actively painting a picture of Pakistan as a state-sponsor of terrorism, then let’s say what we have to and say it well. We must put our house in order. It is difficult. Pakistan does not live in an easy neighbourhood, nor has its experience been shaped in a historical vacuum.

India’s counsel focused on the law whereas Pakistan’s focused on the facts

It’s been difficult since we were used as a conduit for arming the mujahideen, and then left to deal with the blowback alone. At the same time, we must not become victims of the international community, we must take responsibility for what we signed up to ourselves, but let’s not give everyone a free pass, including allies. We must tell our side of the story with clarity and commitment.

Why did PM Nawaz hold back from telling our story? All the PM has done so far is conduct ‘private meetings’ and embarrass Pakistan at home. Internationally, where has he landed us? Pakistan and the PM become one entity when he is representing us abroad, so what happened during the Riyadh Summit was not unimportant to any of us.

It was an outcome of this government’s disastrous diplomacy. The PM must empower the Foreign Office and appoint a competent Foreign Minister since his diplomatic track-record has seen a dangerous downswing to Pakistan’s international standing. India has taken full advantage of Pakistan’s lack of diplomatic push.

Inadvertently, we have built an apologetic image of ourselves, for all the wrong reasons. Modi’s propagation of Pakistan being the mother of state terrorism has been met with silence from the government. What actions has our PM taken to counter this line? Nawaz’s policy has been nothing but perplexing and painful to watch for any Pakistani.and a senior PPP leader

Nafees Zakaria: ‘We Have a Strong Case’

There has been a lot of debate that Pakistan should not have accepted the International Court of Justice (ICJ) jurisdiction in Indian spy Commander Kulbhushan Jadhav’s case. Do you think Pakistan had the choice?

Pakistan’s decision to attend was taken after consultation among all relevant quarters within Pakistan and it was decided that it would be better to be there for several reasons. The first reason was that we wanted to show respect to the ICJ. We also wanted to show them, and the world, that we are a responsible member of the United Nations (UN). Thirdly, we ourselves had gone to the ICJ regarding the downing of our Pakistan Navy aircraft, the Breguet Atlantique patrol plane with 16 people on board, by the Indians in August 1999. The decision on that came in after about eight months or so. At that time India also took the stand that they do not accept the jurisdiction of the ICJ. But they were there.

It was better to contest the issue over there. Many people have actually misunderstood the outcome of that brief hearing. The outcome basically should be seen as giving a stay of execution to Commander Kulbhushan Jadhav. And that would have happened in any case because it is a track record of the ICJ that they give high importance to the right to life.

The first thing they said was that since his execution is imminent, we want to discuss the merits of this case. Until we have discussed the merit of this case and given our final judgment, there should be no execution. Since we are a signatory and we have entered our acceptance to the ICJ, we accept the jurisdiction.

There are situations where we would not accept their jurisdiction. For example, in any case pertaining to the national security of Pakistan, we would not accept the jurisdiction of the ICJ. And for that, we have revised the declaration. The declaration which we have submitted in 1960 to enter the ICJ was revised in late 2016 and early 2017 and was accepted and circulated on March 29 this year. People in Pakistan have misunderstood this, assuming that we have now, at this time, accepted this. There were many conspiracy theories and incorrect baseless stories about this. But as a matter of fact, we have actually strengthened our position vis-à-vis the application of jurisdiction of the ICJ.

Has India scored a moral diplomatic point by getting a stay in Jadhav’s case?

No. I think what they did do was misguide and mislead the people by declaring it a victory. If you go through the media reports, even their own analysts have said that it would be incorrect to term it a victory at all. It is an interim thing which came about because the ICJ decided to hear the case or look at the merits. Meanwhile, they sought a stay in the execution, which is normal for any case in any court.

The Indian media played a very strange game and, in the process, they exposed themselves. The Indian media misled their entire readership and viewers because they declared on the first day the stay has been granted.

What happens if the ICJ gives a verdict against any country? Is acceptance mandatory?

There is an element of speculation in your question. You have to keep in mind that this is a criminal case and there are many legal aspects. The Indian plea is that Jadhav has not been granted consular access and during this time their main plea has been the issue of consular access. So they have tried to give a human angle to it. But the criminal element has not been brought forward. There is a criminal side to it. There was a proper judicial process which was followed in Pakistan and Jadhav was awarded the death sentence accordingly.

Mr. Sartaj Aziz, the Adviser to the Prime Minister said during his briefing that the merit or what the court was going to examine is whether his rights were actually maintained or not. This is where Mr. Sartaj Aziz said that we have a very strong case, because what we did was absolutely in accordance with Pakistani law and we followed the whole procedure and whatever rights were due were granted.

The Indian media played a very strange game and, in the process, they exposed themselves

Regarding consular access, we have the 2008 agreement which both sides agreed upon and signed. In that, there is a clause which says that anything or any case which relates to security or has a political angle, the request for consular access will be considered only on merit. In January, we sent a letter of assistance to India stating that your agent or your spy commander Kulbhushan Jadhav, in his confession, has given the names of a number of people.

We asked them to assist us so that we can follow our judicial process accordingly. But India did not cooperate and has not even responded to it. There are many questions which are unanswered, mainly what was he doing in Pakistan? Why was he holding two passports? Why was the other passport carrying a Muslim name? Why is there deception? Nothing has been explained by India. The letter of assistance said that if India extended assistance to us, we would consider the request for consular access.

The Opposition and many experts blame the Foreign Office and the government for what they say was a poor showing at the ICJ. Has Pakistan been able to fight the case effectively?

First of all, time was very short. India filed this petition on May 8 and we were informed about it the following day. The hearing was scheduled for May 15 and a weekend also came in between. Our request for extending the date so we could prepare the case properly was not accepted.

But within this short period of time, we were able to get the renowned lawyer, Khawer Qureshi. He is not just an internationally recognised barrister but is also Queen’s Counsel (QC). He has appeared in many cases and is an expert on state immunity cases. Even though he had very little time to go through the entire case, see the dynamics and prepare himself to represent Pakistan, he did a very good job.

This is the assessment of not just the Foreign Office but an assessment by many other people. Some people, without knowing the details, are just indulging in discussion for the sake of discussion. And they are trying to suggest that Pakistan did not play its part very well or did not prepare.

But I think what we did was absolutely correct and this hearing was only about whether the ICJ would accept the case or not. They accepted the case, said they have jurisdiction to hear this case and to assess the merit. A stay in execution was given in the interim. The ICJ has not ordered a reversal of the verdict. They have not even raised the issue of consular access.

We raised points that India was hiding at that time. We also brought to the knowledge of the court that we have a bilateral agreement regarding consular access.

Why did the Pakistani lawyer not fully utilise the allocated time? And why did Pakistan not appoint the ad hoc judge?

There was no time to appoint an ad hoc judge. Purely because of the paucity of time, it was not possible to get an ad hoc judge, who in any case, would not have played a role there. Now that the case has been admitted, we have started our preparations. All the relevant departments are in coordination with each other and the legal team would be made accordingly.

Regarding the utilisation of time, I think there has been incorrect reporting about that. If I can finish without mumbling and using irrelevant arguments, and conclude my arguments within a given period of time, why should I want to extend it? It was a media campaign driven by people who want to make non-issues an issue. We utilised the time that was actually required to plead our case, to make our arguments and we made good arguments.

If India took a longer time, India has a lot at stake. India has been exposed as a country which is involved in perpetrating terrorism, financing terrorism and carrying out subversive activities in a sovereign state that is Pakistan. I think people are not looking at this case from this angle.

People have forgotten that he is not merely Kulbhushan Jadhav; he is Commander Kulbhushan Jadhav, who had been sent here to kill people

People have forgotten that he is not merely Kulbhushan Jadhav; he is Commander Kulbhushan Jadhav, who had been sent here to kill people. Who had been sent here to destroy this country, who had been sent here to make use of the negative element present in the country, or those who have come from outside this country to damage Pakistan.

He was tasked with carrying out subversive activities. This man has made a confession about how he was asked to exploit the sectarian element within the society. These are the things which people have completely forgotten. And all of them have started looking at what India wanted people to look at through its media campaign.

There has also been criticism that Pakistan failed to highlight the case of the Indian spy effectively at world capitals. What’s your take on this?

I think there is a difference between a media trial and a trial in the international arena. This is a case which requires proper judicial process within the country according to the laws of the country, I think that is the better way to do it.

Can you cite any country in the world who has caught another country’s spy and they have sent his case to international forums? Would it ever be possible that any country catches another country’s spy and would allow him to go? Especially, if he had caused that kind of damage which Jadhav has caused, or run the kind of networks he was running over here, and the kind of planning with which he had come to create problems in Pakistan? I don’t think so.

We are a sovereign state. If anything happens on this soil, it should be dealt with according to the law of land. Has any other country arrested a Pakistani and sent him back to Pakistan for a trial here? Clearly not. He or she would be punished in the country where he or she committed the crime. We did the same thing.

We are not looking at Kulbhushan Jadhav as Kulbhushan Jadhav the individual. We are looking at the bigger issue of Indian involvement, the State level involvement in perpetrating terrorism in Pakistan, financing terror in Pakistan and subversive activities in Pakistan.

We had earlier presented two dossiers to the UN Secretary General in 2015, saying that India is involved in perpetrating terrorism in Pakistan. India is involved in terror financing in Pakistan. India is creating problems while sitting in Afghanistan and creating instability in Pakistan.

A stay in execution was given in the interim. The ICJ has not ordered a reversal of the verdict

We presented the dossiers to the UN secretary general not as a specific case but to apprise the UN how a sovereign country is suffering at the hands of another country which is absolutely against the UN Charter and absolutely against the norms of international relations.

We informed the UN because when we talked to India bilaterally there was no result and their activities continued. When Kulbhushan Jadhav was arrested in March 2016, another dossier was submitted to the UN Secretary General.

The dossier was not about Kulbhushan Jadhav alone. The dossier was again about the Indian State financing and perpetrating terrorism, and carrying out subversive activities. There are also references to Kulbhushan Jadhav, because by then, we had added some more very concrete references to that dossier. We are not operating in a haphazard or random manner in dealing with this case.

What’s the course of action in this case now?

Sartaj Aziz has said preparations are underway and the strategy will not be made public. The concerned departments will work together and they will chalk out the plan.

Are there any plans to highlight Indian-sponsored terrorism in Pakistan more aggressively on the diplomatic front?

We have been doing so for some time. When Kulbhushan Jadhav was arrested, we briefed the five Permanent Members of the UN Security Council. We also briefed the European Union and the OIC countries ambassadors. The African Union Organisation members and the African countries’ heads of mission have also been briefed.

We consistently raise the issue of Indian involvement in fomenting terrorism in Pakistan, at all levels in both bilateral and multilateral meetings. Kulbhushan Jadhav’s confession is concrete and irrefutable evidence. As and when required we will present additional dossiers and brief all the diplomats in Pakistan.

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Editorial Team
The Editorial team of Bol Narratives