ICJ order on Kulbhushan Jadhav decoded: It’s actually a win each for India and Pakistan at The Hague

Sushma Swaraj tweeted her gratitude to India’s counsel at the Hague, who had argued that there was significant concern that Pakistan’s military court would have executed Jadhav in the dead of night.

Written by Jyoti Malhotra | Updated: May 18, 2017 5:05 pm
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The International Court of Justice (ICJ) has ordered that Pakistan stay the execution of Kulbhushan Jadhav, thereby handing a big diplomatic victory to India, but has also stopped short of ruling on the issue of consular access to Indian embassy officials in Pakistan for Jadhav, thereby allowing Pakistan to save face at the ICJ’s interim verdict.

External Affairs Minister Sushma Swaraj tweeted her gratitude to India’s counsel at the Hague, who had argued that there was significant concern that Pakistan’s military court would have executed Jadhav in the dead of night, and that therefore, the ICJ should rule against such a heinous act.

“I assure the nation that under the leadership of Prime Minister Modi we will leave no stone unturned to save #KulbhushanJadhav,” Swaraj tweeted.

Attorney General Mukul Rohatgi confirmed to journalists at the Hague that no consular access would be given to Jadhav, pending a final verdict. Meaning, Indian embassy officials still won’t have any idea what Jadhav’s physical and mental condition is since he was kidnapped from Iran over a year ago.

The ICJ threw out the Pakistani plea that it had no jurisdiction in this matter because it was different from Pakistani law. The ICJ argued that according to the Vienna Convention, to which both India and Pakistan are signatories, it indeed had jurisdiction. Therefore, that plea didn’t hold.

Pakistan had argued in front of the ICJ that a 2008 consular agreement between India and Pakistan superceded the Vienna Convention, as all cases of security or political prisoners would be decided on “its merit.”

Because he was such a security and political prisoner – a spy – Pakistan argued, the merit of the case in this case meant that it would not give Indian embassy officials consular access to Kulbhushan Jadhav. Pakistan argued that Jadhav had been caught waging war against the Pakistani state or its equivalent, and was involved in acts of sabotage in Balochistan and elsewhere.

That is why, Pakistan argued, that he had been sentenced according to the law of the land, and that sentence was hanging.

India’s simple argument rested on the Vienna Convention, which guarantees consular access to all its citizens. It argued in front of the ICJ that it was fearful that Jadhav’s life was in danger. To that extent, India has won a big victory, because the ICJ has clearly told Pakistan that it cannot hang Jadhav until a final verdict.

As this 1-1 score, in favour of both India and Pakistan, sums up the Jadhav case so far, one cannot help wondering if the entire matter could have been sorted more amicably.

Whatever Kulbhushan Jadhav’s actual status – whether or not he’s a spy, as Pakistan says he is and India denies that fact, insisting he was a businessman in Iran, carrying out his normal chores – the fact is that he was kidnapped by Pakistani intelligence agencies from Iran. He has since been kept in a jail somewhere in Pakistan.

If Indian and Pakistani officials could pick up the phone and talk to each other, and sort out this problem bilaterally, it would have been so much more humane. At the end of the day, to wash our dirty linen in public, was ugly, even grotesque. To think that two neighbours can descend to this state diminishes us all.

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