Pakistan loses face, Kulbhushan Jadhav gets lifeline

Prime Minister Narendra Modi government’s diplomatic gamble in approaching a world body against Pakistan paid off, when the International Court of Justice (ICJ) on Thursday ruled in favour of India, staying the execution of Kulbhushan Jadhav, who was sentenced to death by a Pakistan military court on charges of espionage.

It’s a big shift in diplomatic posturing, say experts. They say it  demonstrates the new-found global clout and confidence of the South Block, the seat of the Ministry of External Affairs. In its typical “disruptionist” approach questioning the status quo, External Affairs Minister Sushma Swaraj, under instructions from the PM, broke the convention set after the 1971 war to limit disputes with Pakistan to bilateral fora. Bitten by two unfavourable verdicts by the UN in 1948 on Kashmir and later in 1965 by a three-judge tribunal appointed by the ICJ for arbitration on the Rann of Kutch border dispute, India had been shying away from involving world bodies in its disputes related to Pakistan.

Reading out the verdict, ICJ President Ronny Abraham said the 15-judge Bench’s decision was unanimous. He said India should have been granted consular access to its national as per the Vienna Convention to which both countries are signatories. The ICJ also directed Pakistan to take all necessary measures at its disposal to ensure that Jadhav is not executed till the court takes a final decision. It also asked Pakistan to keep it informed about the measures, including on consular access, taken by it in this connection.

The Court also asserted its jurisdiction over the case of the former Indian Navy officer while noting that the circumstances of his arrest remain disputed. He said acts alleged by India fall in the Vienna convention which guarantees the state to be given access to its citizen. He added the rights invoked by India under the Vienna Convention are plausible.

While Pakistan’s Attorney General Ashtar Ausaf reasoned that the ICJ order was nothing but direction of “the status quo [to] be maintained in the case”, saying the provisional measures are a procedural process, Pakistani experts said the jurisdiction argument was “weak” and “damaging”. Barrister Rashid Aslam saaid Pakistan government was ill-prepared and did not utilise the 90 minutes it had to make its argument. He was echoed by former Justice Shaiq Usmani, who described the decision alarming. Senior PPP leader Sherry Rehman said, “We based our case on jurisdiction and it proved weak. More arguments should have been made regarding espionage.”

Rejecting Pakistan’s argument that the ICJ did not have jurisdiction in the matter, the Court reasoned it could hear the case because it involved, on the face of it, an alleged violation of one of the clauses of the Vienna Convention, which both Pakistan and India ascribe to and whose interpretation falls under its purview. The Court also said Pakistan should inform it of all measures taken in implementation of the order. The Court also put aside 2008 bilateral treaty on granting consular access to prisoners. Former RAW official Jaideep Ranadey described the verdict as half battle won. He said he now believed that Jadhav was alive, though he cannot say, in which position he is. He agreed, if Pakistan had provided a consular access earlier, its case would have been much stronger at the ICJ. Former Additional Secretary in the Ministry of External Affairs K C Singh also said the court will now look into the matter on its merits.

Gopal Baglay, the Ministry of External Affairs spokesperson, said that the ICJ decision was unanimous, favourable and unambiguous. “It’s a matter of great relief,” he said. Replying to a volley of questions on India’s possible response if Pakistan does not implement the ICJ order, Baglay said the order is binding on Pakistan.

ORDER! ORDER!

• The alleged failure of Pakistan in providing requisite consular notifications with regard to the arrest and detention of Jadhav, as well as the alleged failure to allow communication and provide access to him is sufficient to establish that the court has prima facie jurisdiction in the case
   
• The fact that Jadhav is under a death sentence and might be executed is sufficient to demonstrate the existence of a risk of irreparable prejudice to the rights claimed by India
   
• Pakistan has given no assurance that Jadhav will not be executed before the Court has rendered its final decision. In those circumstances, the Court is satisfied that there is urgency in the present case’.