ICJ ruling

Published July 19, 2019

IN a verdict which was awaited with great anticipation by both Pakistani and Indian authorities, the International Court of Justice on Wednesday made its decision in the case of Indian national Kulbhushan Jadhav, a spy arrested in 2016 in Balochistan and subsequently sentenced to death by a military court in 2017 for his involvement in espionage and sabotage activities. The ICJ’s findings in this case come a year after India approached the judicial body to stay Jadhav’s execution and declare his trial void.

To avoid drawing an oversimplified conclusion which paints only one side as the winner — as Indian authorities have been doing — it is imperative to deconstruct the court’s decision on Jadhav with restraint.

The ultimate question being considered by the court was whether the 1963 Vienna Convention on Consular Relations applies in cases of espionage, as argued by Pakistan, and whether the denial of consular access to Jadhav can be viewed as a breach of obligations under the Convention, as argued by India.

In its findings, the ICJ has granted India consular access to Jadhav and held Pakistan’s argument on the denial of access as incongruent with the VCCR of 1963.

Although Pakistan made several contentions about the applicability of the Convention in light of a 2008 bilateral agreement between Pakistan and India — which makes exceptions for access in cases of espionage — the court found that the agreement did not override the Convention but was supplementary to it.

In a dissenting note, ad hoc judge Justice Tassaduq Hussain Jillani maintained that the Vienna Convention doesn’t apply to spies, and that even if it did, Pakistan had not breached Article 36.

While the court has stayed Jadhav’s execution pending a reconsideration of his conviction and sentence, the exhaustive list of remedies requested by India have not been entertained — that is, India’s request to annul the military court verdict; its appeal for the release and safe passage of Jadhav; its plea for a retrial in civilian courts.

These unconventional requests by India were rightly not granted as the ICJ is not an appellate court and does not have the jurisdiction to even consider such demands. In fact, it is important to note that the court specifically maintains that Jadhav’s conviction and sentence are not regarded as a violation of the Convention and that the obligation to provide effective review can be carried out in various ways. “The choice of means is left to Pakistan,” the order reads.

It is now time for diplomacy to take centre stage in Pakistan-India relations, the future of which will be determined by the engagement of both sides on the issue of consular access. Now that the ICJ has ruled on this matter, Islamabad and Delhi must move forward with maturity and avoid hyperbole which may cause hindrance in the judicial process.

Published in Dawn, July 19th, 2019

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