In an important judgment that could have far-reaching consequences, the International Court of Justice (ICJ), in a 15-1 majority, accepted India’s argument that denying consular access to accused spy Kulbhushan Jadhav amounted to a breach of obligations specified under Article 36 of the Vienna Convention. The ICJ directed Pakistan to allow consular access to Jadhav and also to review and reconsider the death the sentence awarded by Pakistan’s military court. The lone dissenter was the ad hoc judge from Pakistan.
The court also dismissed the three objections raised by the agent of Pakistan that the court did not have jurisdiction to hear the case as people indulging in espionage activities don’t fall under Article 36 of the Vienna Convention. The Court then found that “Pakistan acted in breach of its obligations under Article 36, paragraph 1 (b) of the Vienna Convention: first, by not informing Jadhav of his rights and also the delay in informing India about his arrest and detention.” The ICJ also ruled that by denying consular access to Jadhav and denying legal representation Pakistan had again violated Article 36 of the Vienna Convention, of which it is a signatory.
The court opined that the appropriate remedy in these cases would be an effective review and reconsideration of the conviction and sentence of Jadhav. The court further stated in its order that “in order to be effective, this process must ensure that full weight is given to the effect of the violation of the rights set forth in Article 36, paragraph 1, of the Convention and guarantee that the violation and the possible prejudice caused by the violation are fully examined.”Enjoying this article? Click here to subscribe for full access. Just $5 a month.
Pakistan’s military court had denied legal representation to Jadhav to defend himself on charges that he had clandestinely entered Pakistan intending to carry out terror activities and or foment unrest in Balochistan province. The Pakistani court did not provide a copy of the judgment detailing the reasons behind their conclusion. Jadhav was convicted and sentenced to death, sparking outrage in India.
The ICJ considered “that a continued stay of execution constitutes an indispensable condition for the effective review and reconsideration of the conviction and sentence of Jadhav.”
However, the ICJ did not agree to India’s request that Jadhav be immediately released and repatriated, instead saying his case must be reviewed. For that reason, most Pakistani media outlets, and the government, claimed the ruling as a “big win” for Islamabad.
According to Gunter Mullack, the former German ambassador to Pakistan, Jadhav, a retired Indian naval officer, was abducted from Iran, where he was engaged in legitimate business in the Iranian port of Chabahar, by the Taliban and then sold to Pakistan’s Intelligence Agencies. The Iranian government had confirmed that Jadhav was doing legitimate business in their country, but refrained from coming out openly in support of Jadhav.
In India, Jadhav is believed to be an innocent victim of strained relations between the two countries. Pakistan is widely believed to have used him as a tool to force India to resume stalled dialogue. An adviser to the former Pakistani Prime Minister Nawaz Sharif told the Senate that Pakistan’s military intelligence did not have any conclusive proof against the alleged Indian spy. It appears that the military court conducted a sham trial to show the world that India was directly involved in terror activities on its soil, especially in its restive state of Balochistan.
If Pakistan fails to follow the ICJ ruling, India is expected to approach the United Nations to impose sanctions on Pakistan.
At a time when Pakistan is facing an unprecedented economic crisis and needed a $6 billion bailout from the International Monetary Fund, it can’t ignore the directions of the ICJ judgment. Indeed, Pakistan has already accepted the ruling and vowed to “proceed as per law.” At best, then, the ICJ decision offers a glimmer of hope that Jadhav will get at least a fair trial.
However, there’s room for pessimism as to whether proper justice will be meted out to Jadhav, as there are innumerable instances where the courts in Pakistan have succumbed to military pressure. India will have to tread carefully in this matter and use the diplomatic route to ensure that Jadhav gets a fair trial.
K.S. Venkatachalam is an independent columnist and commentator.