Why India going to ICJ over Kulbhushan Jadhav reeks of desperation

If decision-makers in Pakistan have determined that Kulbhushan Jhadav must die, then it seems unlikely that there is much the ICJ can do to stop this from happening.

Written by Mosharraf Zaidi | Updated: May 10, 2017 11:31 pm
india, pakistan, kulbhushan jadhav death sentence, pakistan patients, delhi hospitals, delhi hospitals-kulbhushan jadhav, india news, indian express Protesters in India demanding the release of Kulbhushan Jadhav.

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.

The writer is former adviser to the Pakistani Ministry of Foreign Affairs. He writes a weekly column for The News.

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  1. J
    JM
    May 12, 2017 at 2:47 pm
    God save the country which has 'advisers' like the author. Article is based on false premises. This is not about a bilateral issue being turned in to multilateral one. It is about Vienna Convention and rights of each country according to the treaty. Human rights is not a bilateral issue. Granting counselor access is not a bilateral issue. India is signatory to the treaty under which ICJ operates with some caveats. There is no way P.A.K.I.S.T.A.N can approach ICJ about Kashmir. Any such attempts will be thrown out of the window. So much for the bravado that what anybody can do if Bakistan doesn't adhere to the dictates of the ICJ and hang Mr. Jadhav. Just try it and see what happens. Even your all weather friend master China will not be able to save you. For India's sake, we should wish that Bakistan has many more advisers like the author
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      Amir
      May 18, 2017 at 4:02 pm
      Kalbhushan ko phansi la gi aur sab k saamnay la gi. Tum dekhna.. Coward India went to ICJ when they cant face ICJ over Kashmir
      Reply
    2. J
      jiwan
      May 12, 2017 at 7:23 am
      The stan in all likelihood will execute Mr.Kulbhushan Jadav, if they already have not. We are dea with a rogue army of rogue state. And they were not giving counsellor access despite several requests. This is a national, as well as humanitarian as well local and international political issue. Have they given counsellor access for him, the political atmosphere between India and stan would have improved. Instead not only they not gave counsellor access but went ahead with kangaroo court trial with capital punishment. Most probably we will loose case in ICJ on jurisdiction and even if we win stan is not going to comply with that. It is just right to do this.
      Reply
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        Tiger Pakistani
        May 11, 2017 at 11:40 pm
        O baby india is crying now....oh my God. Baby dont cry..we will take care of ur guy on gallows.. dont worry, ur pain and igony will be over soon after he will breath his last...my baaby india.. !
        Reply
        1. J
          JM
          May 12, 2017 at 2:48 pm
          Like Bakistan was crying when it was broken in to half?
          Reply
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            Amir
            May 18, 2017 at 4:03 pm
            Teri maa bhi ro hai thee JM jab Modi ne uska rape kia aur tu paida hua
        2. S
          Sitaram
          May 11, 2017 at 10:55 pm
          For all its bluster, Pk can never successfully make Kashmir or any issue international. For one, the original UN conditions of total demilitarization by Pak has to be done. Second, it also brings up PoK part also into focus, which is hidden away by Pak and bartered to China. And then all its expected actions against their home made ter orists come into focus. Pak's weak warnings of internationalization made sense when the UK and US were indulging in Pak to counterveil Soviets. Now only OIC and China will be of any support which would not be much credible internationally.
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            Anil Bharali
            May 11, 2017 at 5:50 am
            Let us see how Indian patriot like Ram Madhav reacts to this RSS created situation.
            Reply
            1. J
              JJJackxon
              May 11, 2017 at 3:40 am
              Amazing logic. I dont think I have ever seen a more obtuse or a sophomoric article.
              Reply
              1. J
                Jay Smith
                May 10, 2017 at 11:33 pm
                Yoû would understand if it was your kith or kin.
                Reply
                1. E
                  Employ Ment
                  May 10, 2017 at 10:51 pm
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