Glimmer of hope in Jadhav case
As India awaits consular access to its citizen Kulbhushan Jadhav in Pakistan, it draws solace from the International Court of Justice’s recent verdict staying his death sentence pronounced by a Pak court. However, his release could still take a long time.
On March 25, 2016, Pakistan informed India that it had arrested retired Indian Navy officer Kulbhushan Jadhav on charges of spying. India protested. New Delhi said Jadhav was not an intelligence agent but a businessman and that Pakistan had kidnapped him from Iran. Iran also criticised Pakistan. India applied a lot of diplomatic pressure on Pakistan. Islamabad ignored this, put Jadhav on trial before a military court and in April 2017 sentenced him to die.
WHY DID THIS GO TO THE WORLD COURT?
On 8 May, 2017, India filed a case before the International Court of Justice (ICJ). India said Pakistan had violated the 1963 Vienna Convention on Consular Relations by not informing India when he was arrested and by not allowing Indian officials to meet him, known as ‘consular access.’
WHY WAS THIS A GOOD LEGAL STRATEGY?
India has no voice in a foreign military court, especially that of a hostile country like Pakistan. It realised that by informing India three weeks after his arrest and by denying Jadhav consular access, Pakistan had violated Article 36 of the Vienna Convention. It meant a case could be filed with the ICJ.
HOW DID THE COURT CASE PLAY OUT?
Between September and December 2017, the sides put forward written arguments. A second round took place between April and July 2018. In February this year, Indian lawyer Harish Salve and Pakistani barrister Khawar Qureshi represented their governments in oral hearings that were carried on TV in both countries. Salve charged a token one rupee. The Pakistan legal team
charged its government Rs. 200mn.
WHY IS INDIA IS PLEASED WITH THE JUDGMENT?
The ICJ ordered that Pakistan cannot execute Jadhav, that his trial by a military court was illegal and allegations against him be reviewed. India has been granted consular access to Jadhav. The ICJ also said that if India is unhappy with the nature of Pakistan’s review it could file another case. Pakistan declared victory because ICJ did not order Jadhav’s release.
WHAT HAPPENS AFTER THIS?
The ICJ did not concern itself with Jadhav’s innocence but asked Pakistan to review the death sentence and implied that he be tried in a civilian court. When that happens, India will be able to provide him legal assistance, allowing him to make an appeal before Pakistan Supreme Court. The ICJ is unable to enforce its own verdicts. Pakistan could also defy it. But India can then raise the issue at the UN and around the world. Islamabad would have noticed that even the judge from China, its closest ally, supported India’s position. Jadhav’s fate may become intertwined with Indo-Pak relations. 