If ever proof were needed that India and Pakistan lived in parallel universes, the reaction to the International Court of Justice (ICJ) judgment in the Kulbhushan Jadhav case provides it. The vital difference, however, is that while India’s universe is rooted in reality, Pakistan’s is quite delusional.
The key issue that the case dealt with was the sanctity of the Vienna Convention on Consular Relations (VCCR). The Indian case was the “egregious violations” of the convention by Pakistan, inter alia, by not granting consular access to Jadhav. Pakistan’s defence was that the VCCR was not applicable to alleged spies. In addition, Pakistan sought to deny the jurisdiction of the ICJ in the case, and deny the admissibility of India’s application, citing a 2008 bilateral agreement with India that held that consular access in matters of national security would be decided “on its merits”.
The ICJ rejected Pakistan’s contention on each of these issues and upheld that of India either unanimously or by an overwhelming 15-1 margin — the dissenting judge being a Pakistani. The majority included a judge from China. The judgment held that the court had jurisdiction, India’s application was admissible, there was no provision in the VCCR to deny alleged spies consular access and that the bilateral agreement could not displace obligations under international conventions.
The court also asked Pakistan for “effective review and reconsideration of the conviction and sentence of Mr Jadhav”, so as to ensure that full weight was given to the effect of the violation of the rights set forth in Article 36 of the VCCR and guarantee that the violation and the possible prejudice caused by the violation are fully examined. The court directed that “the continued stay of execution constituted an indispensable condition for the effective review and reconsideration of the conviction and sentence.” This specific direction was a source of relief for India and a clear containment of Pakistan’s national jurisdiction.
The ICJ went further. It reprimanded Pakistan by saying that it “was under obligation to cease internationally wrongful acts of a continuing character.” This is as strong a condemnation of Pakistan as the court could make and would remain a stain on Pakistan for years to come.
The court also upheld India’s contention that Pakistan should have informed it about Jadhav’s arrest immediately and not after three weeks; that Pakistan failed to inform Jadhav of his rights including his right to communicate with and access to India’s consular officers; India was entitled to obtain consular access as soon as his detention was made public by Pakistan; India’s consular officers had the right to visit Jadhav, to converse and correspond with him and to arrange for his legal representation.
Pakistan’s argument that alleged spies were not entitled to consular access was actually dangerous. It not only sought to emasculate Article 36 of the VCCR but, if accepted, would allow states, if they so wished, to charge citizens of another country with espionage and so deny them consular access.
An important point India had hammered home was that the trial of a civilian in a military court failed to satisfy the minimum standards of due process on at least three counts: Jadhav was denied a fair and impartial trial, in which he could be represented by a lawyer of his choice; his conviction and death sentence by a military court was farcical and based on “confessions” taken in captivity without adequate legal representation and he was denied consular access that would have enabled India to assist him in realising due process. All this was in total violation of the rights and protections provided under the VCCR and the International Covenant on Civil and Political Rights (ICCPR).
In Pakistan’s delusional parallel universe, victory has been claimed on two grounds: Jadhav’s death sentence was not annulled and the ICJ did not order his release. Some in Pakistan have even claimed that by not releasing Jadhav, the ICJ has accepted that he is a terrorist and that implicitly India is a state sponsoring terrorism! For example, the Pak daily, The Express Tribune, quoted Major General Asif Ghafoor, the Director General of Inter-Services Public Relations (ISPR), stating that the ICJ’s decision has declared India a terrorist state; “They are certified to undertake state-sponsored terrorism.”, he said.
Much has also been made about Pakistan’s judicial system. Thus, according to Foreign Minister Shah Mehmood Qureshi, by not annulling the military court’s verdict, “the ICJ showed its confidence in Pakistan’s judicial system which is very fair and transparent”. Brave words indeed!
Where such statements are delusional is that the ICJ is not a Criminal Court of Appeal. India was appealing against Pakistan’s violation of the VCCR. Hence, there were no arguments on the merits of the actual case or the evidence adduced. In fact, even though India had asked for a copy of the military court’s judgement, Pakistan did not provide it. The ICJ’s focus was limited to determining whether there was a breach of international covenants and here its findings were crystal clear and a victory for India.
Jadhav is an important element in Pakistan’s narrative of a “foreign hand” behind the troubles in Balochistan. Given its failure to tackle the fifth insurgency in the province, Pakistan has sought to divert attention by claiming that India was fomenting terrorism. Hence, the charade that Jadhav was involved in terrorist activities. In reality, media reports indicate that the terrorist outfit, Jaish ul-Adl, linked to the Jundullah, actually kidnapped Jadhav from Iran and sold him to the ISI.
During the trial, Pakistan’s counsel had likened India to Humpty Dumpty who sat perched on his flimsy wall of lies, which would soon come crashing down. In reality, it is Pakistan’s web of lies and egregious violations of international covenants that have come crashing down.
This article first appeared in the print edition on July 19, 2019 under the title ‘Humpty Dumpty’s fall’. Devasher is author of Pakistan: Courting the Abyss; Pakistan: At the Helm; and Pakistan: The Balochistan Conundrum. He is a former special secretary, Cabinet Secretariat, Government of India, and currently member, National Security Advisory Board and consultant, Vivekananda International Foundation.