Asserting its jurisdiction under Art 36(1), staying Kulbhushan Jadhav’s execution and ruling that ‘spies’ or ‘terrorists’ cannot be excluded from consular access under the Vienna Convention and its Optional Protocol, which is binding on both countries, the International Court of Justice has vindicated India’s strategy.
The Pakistani authorities seem to have been caught by surprise. Moreover, they came badly prepared in their legal defense and have now gone into sullen denial; their only defence is that they will present strong substantive evidence later.
There is understandable relief in India, but an arduous task lies ahead against a cussedly defiant, unpredictable State of Pakistan which continues to derive legitimacy from its unmitigated hatred of India, and where rival power centers remain mired in a struggle for supremacy.
Immediately after the judgment, Imran Khan’s Pakistan Tehrik-e-Insaf (PTI) party absurdly tweeted that Pakistan’s weak defence was the outcome of Indian industrialist Sajjan Jindal’s Track II missive to Prime Minister Nawaz Sharif. This line of attack has strained the credulity of saner Pakistani observers, like noted jurist and human rights activist Asma Jehangir as well as former diplomat Ashraf Jehangir Qazi, who have said not granting India consular access to Jadhav may have been a mistake.
However, Foreign Policy Adviser Sartaj Aziz was quite categorical in adhering, even afterwards, to Pakistan’s known stand that this cannot be conceded because of security connotations.
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In the wake of the verdict, India will obviously have to watch how the Pakistan Army reacts. A bull-in-China-shop-type execution, after the mandatory 130 days of appeal plus clemency period expires sometime in August, seems unlikely. Having gone to The Hague, Pakistan may not like to attract further international opprobrium by defying due process, the perception of which is already dulled by the military court trial.
However, the Pakistani “deep state”, its army and intelligence agencies, can be expected to fully activate its ISI Media cell efforts to build sustainable charges of Jadhav’s involvement in nefarious activities in parts of Balochistan and Karachi. They may rig him up to Uzair Baloch, the notorious ganglord and spy arrested last year, whose confessions were obtained in Army confinement.
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Nawaz Sharif’s position is quite weak after the Panama papers’ verdict. Just before it came, Pakistan army chief, Gen Qamar Javed Bajwa, met Imran Khan quietly on April 1, signalling a possible switch in support of the 2018 elections. The ISPR also expressed concern on public morality.
In recent weeks and months, a new political turbulence has been increasingly visible inside Pakistan. An uneasy truce is in existence between a weakened prime minister and the Army, which was forced to withdraw a tweet critical of the government, although Nawaz Sharif had sacrificed two chosen loyalists, information minister Pervaiz Rashid and Special Assistant on foreign affairs, Tariq Fatemi.
Against this backdrop, it would be unreasonable to expect the civilian leadership to do anything which isn’t sanctioned by the Army – which is unlikely to allow India consular access as its own case against Jadhav could collapse.
India should try to work on a strategy which de-escalates Pakistan’s embarrassment or humiliation after the ICJ verdict. The undercover track between the two national security advisors, Ajit Doval and Nasser Janjua, needs to be activated to assess the minimum sine-qua-non the Pakistan Army could live with. Merely a tactical de-escalation of eyeball-to-eyeball confrontation along the Line of Control and the international border will not suffice.
Would the offer of resumption of comprehensive dialogue on all contentious issues help? Can this at all be put forward, without first de-escalating and tackling our own internal situation in South Kashmir districts more efficiently and peacefully? These are all going to be difficult steps to contemplate and think through.
If the de-escalation of tensions makes even incremental progress, the possibility of `a bridge of spies’ type exchange situation exists — although there is no credible confirmation of the abduction of the retired Pakistani intelligence officer, Lt Col Mohd Habib by India. Perhaps these are scenarios more likely in fiction and film, rather than the hard grit and realpolitik that is a byword for India-Pakistan negotiations. That still remains a very long haul.