The ruling of the International Court of Justice on Pakistan’s incarceration of Kulbhushan Jadhav on charges of espionage and terrorism has vindicated India’s faith in seeking international legal relief amid Islamabad’s refusal to respect the basic principles of justice. The ICJ called on Pakistan to take a fresh look at Jadhav’s case, immediately restore his legal rights and provide India consular access. Above all, the ICJ is asking Pakistan to examine the impact of its violation of international law on the principles of a fair trial in the Jadhav case. In a strange but typical official reaction, Pakistan is claiming “victory” at the court’s decision to ask it to reconsider the conviction and sentence of Jadhav “by the means of its own choosing” — Pakistan’s Prime Minister Imran Khan has tweeted, “appreciating” “ICJ’s decision not to acquit, release and return Commander Kulbhushan Jadhav to India”.
Jadhav was arrested in early 2016 and, after a summary trial, a military court ordered his execution in 2017. Having failed in its effort to bilaterally engage Pakistan on the case, Delhi turned to the ICJ. The Court stayed Jadhav’s execution in the summer of 2017. In its final judgment this week, however, the ICJ’s focus was not on the merits of Pakistan’s case against Jadhav. It was on the legal process, the rights of the accused, and the remedies for a likely mistrial. The ICJ declared that Islamabad was in violation of its obligations under the Vienna Convention on Consular Relations by the failure to inform Jadhav of his legal rights and immediately intimate the Indian embassy about his detention. It also held Pakistan guilty of denying India consular access to Jadhav and preventing it from arranging legal representation for the accused.
The ICJ also offered some remedies. It asked Pakistan to inform Jadhav, without any further delay, of his rights and provide India consular access to him. It called for an “effective review and reconsideration” of Jadhav’s conviction and the sentence against him. It wants Pakistan to ensure that “full weight” is given to the effect of “violation” of Jadhav’s rights on the “principles of a fair trial” and the “prejudice” it might have caused in the sentence of execution. The ICJ also held that a continuing stay on Jadhav’s execution is an “indispensable condition” for an effective review and reconsideration. It also told Pakistan that its obligation to review and reconsider Jadhav’s case must be performed “unconditionally”. Delhi has certainly won the argument about international law and the tragic but deliberate mistrial of Jadhav by the Pakistan army. But the task of persuading Pakistan to respect the ICJ ruling will not be easy. That task in the end remains a political one. While India must continue to utilise all available legal means, it must also seek a quiet conversation with Pakistan to encourage it to do the right thing. The ICJ’s call for a judicial review, in a format chosen by Islamabad, may have opened a small door for bilateral diplomacy that might let Pakistan save face and India secure Jadhav’s life and liberty.