The International Court of Justice (ICJ) will deliver its decision on 17 July on India’s petition in the Kulbhushan Jadhav case. Jadhav is a retired Indian Navy officer who was abducted by Pakistan from Iran in March 2016. He was tried in secret by a military court and sentenced to death.
The Pakistan Army chief confirmed the sentence in April 2017, soon after one of its retired army officers disappeared from Nepal. There has been no report that he has been located. Obviously the Pakistan Army thought that Indian secret agencies were behind this act.
The Case Thus Far
India cautioned Pakistan that if it carried out the sentence it would amount to ‘pre-meditated murder’. In an unprecedented legal manoeuvre, India approached the ICJ in May 2017, to immediately restrain Pakistan from carrying out the sentence. India took the plea that the judicial proceedings against Jadhav were vitiated because Pakistan had denied him and India consular access, as stipulated in the Vienna Convention of Consular Relations (VCCR).
Ruling in India’s favour, the court ordered Pakistan not to take further steps until it had reached a final verdict. Pakistan was deeply embarrassed.
The court heard oral arguments on 18-21 February this year. These did not attract substantial attention because the nation was focussed on the aftermath of the Pulwama terrorist attack. Earlier, last year, the two countries had made written submissions in the matter.
Kulbhushan Jadhav Row: India-Pakistan Parley
In line with its preliminary argument of 2017, India asked the ICJ to hold Pakistan guilty of denying Jadhav and India consular access. It forcefully submitted that this denial corrupted judicial proceedings against Kulbhushan Jadhav, which were held in secret in a military court. The lack of consular access also constituted a denial of his human rights as provided in the International Covenant on Civil and Political Rights (ICCPR).
On this foundation, India requested the court to order that Jadhav be set free, and be safely returned to India.
India also told the court that if it did not find this possible, it should direct Pakistan to annul the military court’s decision and order a trial under ordinary laws in a civilian court, “excluding his confession that was recorded without affording consular access, and in strict conformity with the provisions of the ICCPR [International Covenant on Civil and Political Rights] with full consular access and with a right to India to arrange for his legal representation”.
In response, Pakistan asked the court to hold India’s petition as ‘inadmissible’, and in the “alternative” to “dismiss India’s claim in its entirety”.
Why Have We Overlooked Pakistan’s Perennial ‘Anti-India’ Stance?
From the time Pakistan got its hands on Jadhav, it has proclaimed him as a ‘spy’ and a ‘terrorist’. Declaring him as a serving naval officer, Pakistan’s essential objective has been to establish that India is a ‘state sponsor’ of terrorism. For this purpose, Pakistan has sought to project senior serving and retired officers of the country’s external intelligence, a retired navy chief and, to a great extent though not fully, National Security Advisor Ajit Doval, as part of the alleged Jadhav conspiracy.
Most despicably, Pakistan has attempted to involve Jadhav’s wife in the matter. This act shows the depths to which Pakistan has descended in its attempt to tarnish India.
Of course, this is not surprising, as anti-India is part of its national ideology, a fact that Indian policy-makers and analysts often overlook.
Pakistan specifically brought its allegations against Jadhav and India to the attention of the major powers, Arab and ASEAN diplomats and the UN Secretary-General. No country or organisation responded to its propaganda.
Thus, Pakistani efforts to paint India with the terrorism brush through the Jadhav case have simply failed.
The international community firmly continues to regard Pakistan as a dangerous sponsor of terror, and the Masood Azhar listing shows this as well.
Crucial Question Before ICJ: Scope & Extent of Consular Access Under VCCR
Interestingly, Pakistan also used the ICJ forum to continue to propagandise against India. Instead of focusing almost exclusively as India did on relevant legal points under the court’s consideration, Pakistan continued its diatribe and made many uncalled for references, in particular, against NSA Ajit Doval.
The court will certainly not be impressed by this approach. It will confine itself to legal issues.
The most important question before it is the scope and extent of consular access under the VCCR.
India has asked the court to hold that the right to consular access is full and unabridged under the VCCR. It cannot be curtailed on any ground. Thus, if a foreign national is detained the concerned state is obliged to arrange for him to meet his country’s consular representatives.
Pakistan has contested this by asserting that ‘spies’ and ‘terrorists’ cannot claim this right.
It has also argued that the bilateral India-Pakistan bilateral consular agreement of 2008 permits either country to decide on consular access in special cases, including espionage, and that this agreement, and not the VCCR, applies to the Jadhav case.
India has denied that the bilateral agreement so applies, and in any case cannot override the VCCR, an international agreement.
The ICJ has never had an occasion to go into the scope of consular access in the past. However, as it is such a fundamental proposition of inter-state conduct, almost certainly it will not allow its application to be abridged.
The court will therefore, again almost certainly, accept India’s plea on consular access.
India’s Invocation Of ICCPR Was Audacious. But What Next?
The question is: what after that? How far will it go? In the past, the court has, in cases of denial of consular access, asked states to review and reconsider judicial proceedings held till then.
It will, therefore, most likely do that. Will it do so in the language that India has requested?
That is unlikely. It is also unlikely to assess the quality of the Pakistan judicial system although it could possibly make a comment, even if tangentially, on military courts and secret trials.
India’s invocation of the ICCPR in the context of the VCCR was audacious.
It argued that as the trial was vitiated, and as Jadhav’s basic rights have been violated, he has suffered so much that the court should order his release and safe return to India. It is almost certain that the court will not go so far.
If the ICJ proceeds as laid out by this writer, then Pakistan will have to allow Jadhav to appeal to one of its High Courts. Under the existing Pakistan Supreme Court judgments, a High Court has only limited powers of review, and all the facts of the case need not be disclosed before it.
Also, Pakistani judges will not remain unaffected by the anti-Jadhav and anti-India public sentiment.
It is unlikely that they will have the courage to be independent. Under such circumstances, the ball will formally go back to the Pakistan government, which will no doubt act as directed by the army.
When Has Pakistan Ever Chosen To Act Wisely?
These cases are best settled quietly between governments, but Pakistan abandoned this path when it decided to use Jadhav to deflect attention from its involvement in terror. But then, when has it ever chosen to act wisely?
One last point: to buttress its case, Pakistan quoted extensively from three articles written by three Indian journalists who it claimed had to ‘pay a price’ in India for their honest writings on Jadhav.
It described them as the “beating heart of India”. And it praised the quality of writings of, one of these three, Praveen Swami, in these glowing words: “His journalism is the epitome of journalism”. And yet, Pakistan has, on three occasions, denied Swami visas. Such hypocrisy!
(The writer is a former Secretary [West], Ministry of External Affairs. He can be reached @VivekKatju. This is an opinion piece and the views expressed above are the author’s own.The Quint neither endorses nor is responsible for them.)
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