GP Insights # 102, 20 July 2019
On 17 July, the International Court of Justice (ICJ) stayed the death sentence by Pakistan's military court on Kulbhushan Jadhav. Jadhav was convicted of espionage and placed on death row, but India has described him as a retired naval officer-turned-businessman. As a result of the verdict in Hague, not only the death warrant was stalled, the court recognising the right to counsel has asked Pakistan to grant Jadhav his right to defend himself in front of the law. Following this verdict, Pakistan on 18 July has granted consular rights to Jadhav.
What is the background?
Pakistan announced Jadhav's arrest on 29 March 2016, following a video confession he reportedly made was broadcast that day in which he was heard saying that he was an Indian spy and had carried out terrorist acts on Pakistani soil. Following the arrest, India and Pakistan relation worsened. Pakistan for the first blamed India for instigating proxies and indulging in cross border terrorism the same that Islamabad is accused off. Upon his arrest and death sentence, India decided to move to the ICJ on the ground of Jadhav's right to consular access under Article 36 of the Vienna Convention on Consular Relations (VCCR) of 1963.
At the ICJ, both the countries vigorously argued their case, and at the end, Pakistan's contention that Article 36 of the VCCR did not apply on the grounds of espionage was rejected. It also overruled the argument that a 2008 India-Pakistan bilateral agreement on consular access allowed it to deny consular access on 'security' grounds. Instead, the court concluded that Pakistan had indeed violated international law when it deprived India of the right to communicate with and have access to Jadhav.
What does it mean?
The ICJ judgement is balanced that offered both the countries space to drive the outcome. Thus it wasn't a surprise that ICJ didn't ask for the release of Jadhav and asked Pakistan to grant consular access to Jadhav.
But it is also important to note that this is how far international law can go. How long the stay lasts and what sort of outcome emerges from the review process will likely be determined by political considerations – both within Pakistan and at the bilateral level with India. Thus what next after the verdict?
First, the ICJ left the choice of the review process to Pakistan. The latter will decide to go with the military courts or civilian courts. If the civilian courts get into the act and display an independent judgement, then it is possible for relief. Second, what Pakistan does next will determine how it wants to maintain its relation with India as well as its global image. Thus while Pakistan is obliged to review and reconsider the conviction and sentence, it will also be wary of the adverse impact it causes. Lastly, the possible outcome could happen that Jadhav is put on trial before the military court once again, and he is found guilty one more time. But this time India will also be witnessing the process.
But all said and done, the Jadhav case is the product of the central position that terrorism and allegations of state sponsorship of terrorism have come to occupy in the discourse of India-Pakistan relations. The case should remind one that while New Delhi's case against Islamabad may have strong support worldwide, but the Pakistani military has also made rhetoric through Jadhav's confession video that it too is a victim of "cross-border terrorism".