THE reaction to the preliminary order has been intense, seemingly politicised and, by and large, confused. Pakistan has not lost in the International Court of Justice and India has not won — the convicted Indian spy Kulbhushan Jadhav’s fate continues to hang in the balance. Indeed, given the death sentence that Jadhav has been awarded, it was always likely that the first move of any court hearing any aspect of the case would be to ensure that the convicted individual is not executed. A dead individual cannot receive justice, it should be apparent. For Pakistan, it is important that the preliminary ruling of the ICJ be adhered to. Whatever the emotions and certainties of sections of the state and public, international obligations must be approached with a sense of seriousness and commitment. Yet, between the shameful politicisation of the handling of the ICJ hearing by the government and the latter’s seeming uncertainty and confusion, there remains much to be clarified going forward.

First, the civil and military leaderships must jointly and publicly address the matter of the ICJ hearing and clearly state both what is now required of Pakistan and what Pakistan intends to do as a result. While it could be that the state representation before the ICJ is entirely adequate, the matter has been politicised to the extent that the opposition is questioning the PML-N’s motives — a disquieting situation that has the potential to escalate into another so-called national security crisis. Second, beyond the task of making a robust defence before the ICJ — the matter does not just involve the fate of a single Indian convict in Pakistani custody, but has important principles of international law at stake — Pakistan must proceed very carefully with a resolution of the Jadhav affair domestically. This paper opposes the death penalty in all instances and does so in this case too. Equally troubling, however, is the opacity with which the case has been handled; an unnecessary secrecy given that it appears fairly obvious that Jadhav was involved in spycraft of some manner. There are also regional and international dimensions to be considered of Pakistan imprisoning or executing a foreigner convicted in secret of espionage and crimes against the state. Perhaps the civilian court route ought to be considered by the state, with suitable accommodations made to shield secret information. The case of Jadhav needs to be handled sensibly and sensitively.

Published in Dawn, May 20th, 2017