There is cause for deep satisfaction for India over the order of the International Court of Justice in the Kulbhushan Jadhav case. The court, based in The Hague in the Netherlands, has ruled that Jadhav, a retired naval officer turned businessman, who was sentenced to death by an army court in Pakistan on what India strongly believes were trumped up charges of spying and terrorism, cannot be executed until the ICJ decides on the merits of the case over the next few months. In its order indicating provisional measures as sought by India which was adopted unanimously, the Court also stated that the Government of Pakistan shall inform it of all measures taken in implementation of that order. It further decided to remain seized of the matters which form the subject of the order until it has rendered its final judgment. The ICJ order is indeed a slap on the face of Pakistan which had been tom-tomming about Jadhav’s purported guilt without a shred of evidence except a ‘confession’ which was obtained through coercion as India has alleged. That the Pakistanis spurned 16 Indian government requests for consular access to Jadhav was an index of the fear of their preposterous case against Jadhav being exposed as a farce. The Pakistani argument that the ICJ had no jurisdiction in the case since an agreement had been signed between India and Pakistan to settle issues bilaterally in 2008 was squarely debunked by the international court. The validity of the Geneva Convention on consular access to prisoners of another country was also upheld which by implication enjoins on Pakistan to respect India’s right to consular access. The position of the 11-judge bench of the ICJ composed of legal brains from various countries was that India should have been granted consular access to its national Kulbhushan Jadhav as per the Vienna Convention.
Clearly, Kulbhushan Jadhav was through refusal of consular access denied an opportunity to choose lawyers of his choice to defend himself. Despite his being an Indian citizen he was kept insulated from even the Indian High Commission officials. The trial in military court was farcical because there was no evidence of how it went. The proceedings were held in-camera and the judgement was delivered virtually summarily. In the first place, even his trial in a military court was untenable because Jadhav was not an armed forces officer. He had retired from the navy years ago and was now doing business with the Iranians. While India maintains that he was abducted from Iran by the Pakistanis, Islamabad claims that he was loitering in Balochistan province so as to engineer acts of terror and to spy on Pakistan when he was nabbed by the Pakistan army. Considering that no evidence of his so-called nefarious activities has been adduced, the whole story of his presence in Balochistan was apparently cooked up to heap blame on him as an agent of India as a means of defaming India internationally.
As was to be expected, Pakistan is downplaying the ICJ order as one that is of an interim nature, not based on the merits of the case which were not adduced under the mandate given by the international court which decided to take up the merits at a later stage. Being virtually a ‘rogue state’ where the army calls the shots but the civilian government is the one that is held accountable, Pakistan will be watched for compliance with the order. Non-compliance could invite UN Security Council sanctions and going ahead with Jadhav’s execution until the ICJ delivers its final verdict on merits would outrage countries the world over. In the circumstances, Pakistan may well take the path of non-defiance while it whips up sentiment within the country against India. The grant of consular access would be a test case because while denial of an opportunity to India would amount to defiance of the ICJ, grant of access would expose Pakistan’s perfidy and its torture of the prisoner to extract a false confession from him. Either way, Pakistan would be damned and its mask of propriety would be shorn off it.
India, on its part would need to strategise how it would deal with a defiant Pakistan. Not only would a fresh diplomatic offensive be on the cards but India would need to work out how it can hurt the Pakistan economy taking into account also the perpetration of terror by State and non-State actors from Pakistan. Would the unilateral abrogation of the Indus Waters Treaty with Pakistan be considered to starve that recalcitrant country of scarce water resources? It is now quite clear that the Pakistan army would not countenance normalcy in Indo-Pak relations. While the civilian administration could be made to see reason, the army in Pakistan has power but no responsibility. Perhaps, this would be a time of wait and watch on both sides but any rash Pakistan steps could well lead to an outbreak of hostilities.