Millennium Post

Temporary relief for Jadhav

Temporary relief for Jadhav
In a significant development, the International Court of Justice on Thursday asked Pakistan not to execute Kulbhushan Jadhav pending a final verdict on the petition filed by the Indian government. For the uninitiated, Jadhav is a former Indian Navy officer, who was sentenced to death by a Pakistani military court last month for espionage. This order comes as a relief for New Delhi, and in the interim, both nations will argue their case before the 11-judge bench sitting in The Hague. Prima facie, the court has agreed with India's contention that Pakistan violated Jadhav's rights and by extension, the Vienna Convention of Consular Relations, in refusing him consular access. Moreover, the court said that if Pakistan decided to act before it had heard the case in its entirety, it would be a clear violation of the Vienna Convention. Article 36 (a) of the Vienna Convention states: "Consular officers shall be free to communicate with nationals of the sending State here [India] and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State."

The court also shot down some of the key arguments made by Pakistan. Contrary to Pakistan's position, the ICJ said that even those charged with espionage were allowed consular access under the Vienna Convention. Pakistan's other argument was that the court need not hear the matter on an urgent basis since Jadhav could exercise his option to seek clemency, besides stating that there was no chance of execution before August. In the eyes of the ICJ, however, the very fact that a Pakistani military court had handed down a death sentence was "sufficient to demonstrate the existence of a risk of irreparable prejudice to the rights claimed by India" and the need to hear the case as soon as possible. Unfortunately for the Indian government, Pakistan refused to guarantee the court that it would not execute Jadhav till the court delivers a final verdict. It would be utterly tragic for Jadhav's family and the Indian government if Pakistan executes Jadhav before the trial comes to a conclusion. Reportedly, this is what compelled the court to pass Thursday's order. The court also refuted Pakistan's contention that a 2008 Indo-Pak agreement on consular access took precedence over provisions stated in the Vienna Convention, of which both countries are signatories. "On the contrary, the 2008 Agreement amplifies, confirms and extends the Parties' reciprocal obligations relating to consular assistance, for which the Vienna Convention is a framework," the court said.

As India and Pakistan have agreed to the ICJ's jurisdiction, any order passed by the tribunal will ideally be deemed to be binding. However, in the past, there are instances to suggest that this rationale may not play out. In the late 1980s, a Paraguayan national Angel Francisco Breard was convicted of attempted rape and murder by a court in the US state of Virginia, without being informed of his rights under Article 36 of the Vienna Convention. In other words, as a foreign national, he had the right to contact the Paraguayan Consulate, but the arresting officers failed to inform him of this provision. Even though the ICJ had asked the United States government not to execute the man pending a final verdict, he was executed by the State of Virginia on April 15, 1988, following a US Supreme Court ruling that a violation of the Vienna Convention has no bearing on the facts of the case. Admittedly, the two cases are very different regarding the nature of their offences, but it will not stop Pakistan from following a similar path. The charges laid against him against Jadhav are grave. In the words of the Pakistan army's Inter-Services Public Relations, Jadhav "was tasked by RAW to plan, coordinate and organise espionage/sabotage activities aiming to destabilise and wage war against Pakistan by impeding the Law Enforcement Agencies for restoring peace in Balochistan and Karachi". One cannot merely scoff at these allegations. "Although Article 94 of the United Nations Charter mandates that countries which are a party to a case before the ICJ must implement its rulings, they are more often than not ignored by sovereign nations. One can safely say, therefore, that Kulbhushan Jadhav's saviours will not be India's lawyers at the ICJ but the nation's diplomats who will have to engage with their counterparts from Pakistan and negotiate his release. A failure to do so at the earliest will mean that Kulbhushan Jadhav, like Sarabjit Singh before him, will become yet another casualty of geopolitical brinksmanship," writes Abhishek Sudhir, a scholar of legal affairs, in a column for an Indian news website. There is also the question of jurisdiction and enforcing the ICJ's order. In the event of an unfavourable verdict, Pakistan might also take up its grievances with the UN Security Council, 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? Does India have the requisite leverage in the UNSC to turn the tables in its favour?

It is hard to take Pakistan's allegations at face value, considering how confessions are usually beaten out of those detained by the military, especially in a case of such apparent significance. There is possible a bigger game at play here. Some experts contend that this is in response to India's recent actions that have angered a belligerent China, Pakistan's biggest ally. Those taking this position point to the allegations made against Jadhav that he was involved in subversive activities in Balochistan, which falls under the $54 billion China-Pakistan Economic Corridor. The volatile situation in Balochistan has come to hurt both China and Pakistan in recent times, and the Pakistani military has taken it upon itself to provide security. In its press release, the ISPR claims that they had nabbed Jadhav through a "Counter Intelligence Operation from Mashkel, Balochistan." It also plays into Islamabad's narrative that India has been undertaking terrorist operations to destabilise Balochistan. Relations with both China and Pakistan have deteriorated in the recent past. For the sake of Jadhav's lives, India's diplomats will have to step up to the plate and navigate these treacherous waters.
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