Between Pakistan and India, it is usually Pakistan that seeks to internationalise disputes between the two countries. After the Mumbai attacks of 2008, without very much effort at all, India was able to make an international argument against Pakistan – but even then, the Indian state has been consistently bilateralist in its approach. For many Pakistanis, this has always seemed to be an Indian vulnerability, the thinking being that India must surely be scared of having international scrutiny of its behaviour in Kashmir. Indians have traditionally seen it differently. Denying third party or multilateral involvement is a pillar of the fierce independence and sovereignty that Nehruvian statehood insists upon: “India is big enough to manage its own center of gravity”. “India doesn’t need any power to help it manage its affairs”. “India is enough for India”.
So taking an issue to the International Court of Justice (ICJ) seems like an odd choice, especially at a time when India claims to have successfully left Pakistan far behind economically, and isolated politically. If the hype in India is to be believed, there has never been a better time to deal with Pakistani bilaterally. Moreover, the Kulbushan Jadav case hardly seems like a slam-dunk, given his clouded status. No one can explain, just how he ended up in this mess. No one in India has denied that Kulbushan Jadav is a serviceman from the Indian Navy. And no one has denied that he was either across, or close to the border between Pakistan and Iran.
Going to the ICJ reeks of desperation. The Indian government, by its own 1974 declaration of jurisdiction for the ICJ, bars matters like the Jadav case from being examined by the ICJ. Even if the Indian government claims an exception in this matter, there remains the challenge of Pakistan accepting ICJ jurisdiction on the issue. Barring all this, even if the ICJ was to take a position on the issue, it would not be in a position to enforce it. In short, if decision-makers in Pakistan have determined that Jadav must die, then it seems unlikely that there is much the ICJ can do to stop this from happening.
All of this has to be known to Indian decision-makers. Many Pakistanis have a deep and abiding respect for the Indian strategic community: it doesn’t fly off the handle or make decisions under duress or out of desperation. And this adds to the mystifying quality of New Delhi’s move to invoke the ICJ in the Jadav case.
Win or lose at The Hague, India is not likely to get Jadav back by bullying, or “lawyering” Pakistan. A delicate and fragile set of informal norms defines the military-to-military relations between the two countries. Among them is rumoured to be the “sshh, here’s your guy” code. It is a mechanism that ensures neither country ever has high-value intel assets stuck in the other. It is bad for business. But a lot has changed, and is changing in India. The Modi government has advertised this cessation of business-as-usual. Now that the ICJ is the scene for one of the conversations India wants to have with Pakistan, it is plausible that conversations Pakistan has been wanting to have with India, may also open up. Will Pakistan take India to the ICJ over one or several of its complaints related to Kashmir? If we are on Step One of the escalatory ladder of multilateralism, what is step two? And how far does the ladder reach? Sadly, we may spend the next several months and years exploring this kind of question. A terrible outcome for those of us that believe in a peaceful and normalised region for our people.