Taking Jadhav's case to the ICJ and its implications

I n a significant development earlier this week, the International Court of Justice in The Hague, Netherlands, issued a stay order against the execution of former Indian Navy officer Kulbhushan Jadhav, who was sentenced to death on espionage charges by a military court in Pakistan. As argued in these columns, New Delhi's position has remained consistent with regards to the case. In a demarche issued to Pakistan's envoy to India, Abdul Basit, New Delhi said the charges against Jadhav "are farcical in the absence of any credible evidence" and despite repeatedly seeking consular access to him, "as provided for by international law", Islamabad failed to fulfil their wishes. Finally, New Delhi said that if Pakistan went ahead and executed the sentence, it would constitute "premeditated murder". New Delhi maintains that Jadhav was kidnapped in Iran while on a business trip after retiring from the Navy. As the Ministry of External Affairs, claims, "his subsequent presence in Pakistan had never been explained credibly".

New Delhi maintains that Jadhav was kidnapped in Iran while on a business trip after retiring from the Navy. As the Ministry of External Affairs, claims, "his subsequent presence in Pakistan had never been explained credibly".

In what seems like a last-gasp effort to save his life, India has approached the international court. The National Democratic Alliance government has gone out of its way to protect a citizen from possible execution, especially considering the rather dubious circumstances under which he was given the death penalty, with little recourse to proper legal aid. Pakistan's conduct during this entire affair, from failing to inform Indian authorities of his detention and refusal to provide consular access to Indian authorities, is in clear contravention of Vienna Convention on Consular Relations, to which both India and Pakistan are signatories. Under Article 36 of the Vienna Convention, the consular of any country "shall have the right to visit a national of the[ir] sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation". India has thus far made 16 requests for consular access to Pakistani authorities with little success. This grievance forms the basis of India's case in the ICJ. The case will come up for hearing on May 15, when both India and Pakistan will present their respective cases.

India rarely takes such disputes to the ICJ, and the last time it made a case there, it had lost. It was in 1971 when New Delhi sought to ban Pakistani aircraft from using Indian airspace. What makes the NDA government's move a sharp turn away from the norm is that in 1974, India submitted a list of instances in which it will not abide by the ICJ's ruling—in cases involving fellow Commonwealth nations, which leaves disputes with Pakistan outside the international court's jurisdiction. New Delhi's stated position that disputes between the two countries should be resolved bilaterally without any third party mediation or interference. Moreover, India's hesitance to use multilateral forums like the ICJ stems from a fear that other countries, namely Pakistan, could take recourse to the same legal measures in other disputes. In other words, New Delhi has taken a route that it does not often take to save the life an Indian citizen.

Jadhav's case, however, is based on Pakistan's specific violation of international protocol, namely the Vienna Convention on Consular Access, and both nations are signatories to it. Can India receive a favourable verdict from the ICJ? If the ICJ does let Jadhav off the hook, can it compel Pakistan to abide by its order? These are critical questions that require greater introspection. It is, after all, a matter of life and death for the former Indian Navy officer. There is no guarantee of a win even though any reading of the Vienna Convention will leave no one doubt that India has a strong case. Questions concerning the court's jurisdiction based on a whole host of treaties, past submissions and geopolitical considerations are indeed obstacles that could stand in India's way. Pakistan may even cite India's 1974 submission to make a case against any multilateral intervention in the Jadhav case.

In a bid to understand possible outcomes, it is imperative to comprehend the nature of ICJ rulings and past precedence of how they played out on the ground. What is the ICJ? It is the judicial arm of the United Nations, which adjudicates on disputes involving member states. There are two circumstances under which the ICJ intervenes. Either the member countries in conflict consent to its jurisdiction before the international court passes a ruling or the particular dispute falls within the ambit of an international convention. India's case, as argued above, is based on Vienna Convention, to which both countries are signatories, and any ruling passed by the ICJ should be binding on the disputing parties. Unfortunately, there are past instances of countries failing to adhere to the ICJ's ruling.

One of the most infamous examples of member countries nullifying the court's decision is in a case involving the United States and Nicaragua. In the early 1980s, the Central American nation had filed a petition, in which it argued that the U.S. had violated international law by supporting the Contras in their rebellion against the Nicaraguan government and by mining Nicaragua's harbours. In 1986, the ICJ finally ruled in favour of the Nicaraguan government and ordered the US government to pay reparations. The United States argued that the ICJ did not have jurisdiction, dismissing it as a "semi-legal, semi-juridical, semi-political body, which nations sometimes accept and sometimes don't." Unhappy with the ICJ's ruling, the US government also went to the United Nations Security Council and vetoed against any attempt that would compel it to comply with the court's order. There have been other such instances when other global powers had refused to recognise the ICJ's jurisdiction in disputes involving them.

In other words, using its veto powers, the US government overturned the court's ruling. Suffice it to say, the Americans succeeded. India may face similar hurdles if, in fact, the ICJ rules against a Pakistani military court's decision. Among the five permanent members of the UNSC which possess veto powers, China may prove to be a real hindrance. In the event of an unfavourable verdict, Pakistan might take up its grievances with the UNSC, and China may use its veto powers to overturn the court's ruling. India will also have to contend with Pakistan's internal political dynamics. One is well aware that its military wields greater power that the civilian establishment. It was a military court, which sentenced Jadhav to death. Can the civilian government implement the ICJ's order without stepping on the army's toes, citing international law? We don't have the answer to these questions yet, but India's lack of leverage in the UNSC may severely affect Jadhav's prospects. India's relations with both China and Pakistan have deteriorated in the recent past. Beijing's desire to undermine India's security and strategic interests on multilateral forums at every possible turn and New Delhi's subsequent response in playing the 'Tibet card' has soured relations.

One must laud the Centre's attempt to take Jadhav's case to the ICJ. It will at least allow India to present its case in front of a global audience, and describe Pakistan's complicity in what New Delhi calls "premeditated murder". However, New Delhi must continue to engage in back-channel talks with Pakistan to secure his release, as a favourable ICJ ruling provides no guarantees.