India’s lawyers will have walked away from The Hague on Thursday celebrating the court’s verdict affirming the key points they made. Indeed, for India, it is a moment of vindication. The International Court of Justice has found its urgency and its concerns valid in the Kulbhushan Jadhav case and the rights invoked for him plausible. Pakistan has unambiguously lost this day in court — it has been told to ensure that Jadhav is not executed till the Court delivers its final verdict. The court also held that, under the Vienna Convention, Pakistan should have given India consular access to Jadhav. The judges made clear their disdain for Pakistan’s contention that the Convention did not apply to alleged spies and terrorists, pointing to the plain language of the treaty. The Court also did not find merit in Pakistan’s case that a 2008 bilateral agreement, which carved out an exception for security prisoners, overruled the Vienna Convention.
There is little doubt that both the law, and justice, are on India’s side. Yet, after the effort put in by the lawyers at The Hague, more hard work lies ahead.
The Hague’s judges were at this stage only hearing a limited Indian plea for a stay on Jadhav’s execution until its substantial case on his Vienna Convention on Consular Relations rights is decided. There are good reasons to await the final judgment with caution. In Avena, the 2004 case which is The Hague’s guiding precedent on Vienna Protocol issues, the Court asked the United States to reconsider the cases of 54 Mexicans on death row, but through its own legal system. Should The Hague apply the same template in Jadhav’s case, Pakistan will have to grant him consular access — but a military appellate court could decide on the fairness of his trial, something which is unlikely to yield a
different sentence. The Hague is not an international criminal appeals court; it will not concern itself with the rights and wrongs of the trial. Then, Pakistan’s courts may summarily reject the The Hague’s determination, just as the United States judiciary did with Avena.
In the final analysis, Kulbhushan Jadhav’s fate continues to rest in the hands of the generals who seized him, not judges — a truth about how power functions in the international system. Islamabad’s military-dominated strategic establishment engineered the Jadhav case — which, at worst, involved a bit-actor in the India-Pakistan spy game — as part of a project to dynamite Prime Minister Nawaz Sharif’s outreach to India. The generals will defy international law should they determine this course of action will best serve their interests, just as China or the United States have done before them in cases involving the South China Sea or Nicaragua; history teaches us it is profoundly unlikely any real consequences will follow. Saving Jadhav’s life will need quiet diplomacy and is a long haul — the verdict from The Hague a vital first step.
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