• Caucus The Group Discussion Forum of Hindu College

Decoding the Battle: ICJ Verdict on Kulbhushan Jadhav

New Delhi and Islamabad have been involved in a severe battle in the past couple of years.  One of the tussles on Jadhav recently ended (partially) as The International Court of Justice ruled on the case with two rival opponents as India vs. Pakistan.  The ICJ at The Hague ruled that Pakistan must review the death sentence and conviction of Kulbhushan Jadhav and provide consular access to him. In the words of the ICJ, “The Court finds that the Islamic Republic of Pakistan in the matter of detention and trial of an Indian National Mr. Kulbhushan Sudhir Jadhav has acted in breach of the obligation incumbent on it under article 36 of Vienna Convention on Consular Relations.”

To provide a brief outline of the events that occurred – the case that Pakistan had arrested the Indian national Kulbhushan Jadhav and alleged him of espionage and being a spy through the fabricated charges was challenged by India at the ICJ using the argument that Pakistan had breached the Vienna Convention and the same was accepted by court as well.

Pakistan’s key argument was that Jadhav a Navy Commander was arrested from Baluchistan and had been found guilty of espionage in the Military Court, hence Sentenced to Death. Countering this India advocated Jadhav as a Retd. Navy Officer and had been illegally imported from Iran after a business trip. The main argument of New Delhi was based upon two sound facts. First that Pakistan, by denying the request of Consular access to Jadhav had breached the Vienna Convention and second that of inappropriate trial. The Court was convinced in both the contentions of India by the strong point that how could a civilian case be tried in a military court?

In doing this Pakistan failed to fulfil minimum expectations in the due process of law. The reality of allegations of Pakistan lie behind the truth that it had failed to counter insurgency in Baluchistan and by keeping Jadhav at the forefront, they want to show New Delhi’s interference in Baluchistan. The tribunal in Hague ordered Effective review and reconsideration of conviction and sentence of Jadhav and found that India must have been informed about his arrest as soon as it was made public (he was arrested on 3rd March 2016 and Islamabad informed New Delhi on 25th of March) and that Jadhav be informed about his rights also.

ICJ rejected Pakistan’s contention on the issue that VCCR (Vienna Convention on Consular Relations) was not applicable to alleged spies and this made an obligation upon it to give consular access to India. Pakistan Government’s tweet about the verdict points to their willingness, as well as their obligation, as far as accepting the Verdict is concerned. While we look back at the history and find out the success rate of ICJ rulings on breach of Vienna conventions, zero out of three, is of course a disappointing figure at first look but we must also take into notice that it was US which had violated the rulings. While Pakistan is not at the heft of US and it must realize firstly that it cannot emulate the example of US and second that any rash decision that it takes will further decelerate the bilateral engagements that it aims at.

India of course has ruling of ICJ to much extent in its favour, what it must recognise is that Jadhav’s family still has no access to him. Yes, the landmark judgement opens a window for India to ensure that Mr. Kulbhushan gets a fair trial and keep its restless efforts going on. In the series and backdrop of events that have restored some talks between the two nations like Call of Pakistan on Opening Kartarpur Border, Opening of Airspace and FIR against Hafiz Saeed, New Delhi can expect Pakistan to follow the ICJ verdict religiously. The way Pakistan reacts and looks forward to the decision of ICJ will be crucial as to examine the genuine commitment of it in restarting the peace talks and restructuring the bilateral relations with India. The case is not rare that Islamabad acts traditionally similar to what it has been doing in the past or could be that it decides to change its path. Whatever the result may be the ball is in Rawalpindi’s Court now.

We at Caucus believe that even though we live in a world where we are surrounded by the threat of nuclear explosions, trade wars and terrorist attacks. Even nations like India and Pakistan that are constantly at each other’s necks can agree on peaceful solutions for that many conflicting issues through the agency of international law. This is proof that the sanctity of law is still maintained and that it continues to impact international ties even today.