The following article originally appeared in The Times of India on 20 May 2017. The full text can be found here.
On May 18, the International Court of Justice (ICJ) – the principal judicial arm of the United Nations – ruled on the case of Kulbhushan Jadhav, whom Pakistan alleges is an Indian spy. The court unanimously declared that Pakistan must take all measures at its disposal to ensure that Jadhav is not executed, pending a final judgment of the court. What are we to make of this ICJ decision?
First, the matter is far from over. The court simply determined that it had jurisdiction in this case, despite Pakistan’s arguments to the contrary. It also stated that the rights alleged by India were plausible, that there was a clear link with the measures being sought by India, and that the matter was urgent as Jadhav faced a death sentence which – if carried through – could not be reversed.
Second, India’s case concerns Pakistan’s violation of the Vienna Convention on Consular Relations, not so much the merits or circumstances of Jadhav’s death sentence. Since his Indian citizenship was not in question, Pakistan should have allowed Jadhav to meet with Indian government representatives. The recent ICJ ruling should thus be seen as a reprieve that buys India time, and has little direct bearing on the overall circumstances of Jadhav’s arrest and sentencing.
The indirect implications are, however, far more significant, as they raise questions about why Pakistan denied Jadhav consular access in the first place. The element of irreparable prejudice and urgency in ICJ proceedings also highlight just how incredibly unusual it is for any country to execute an alleged foreign spy in peacetime, when life imprisonment is usually the harshest sentence. Moreover, the entire episode portrays the rule of law in Pakistan in an incredibly poor light. Questions remain about the circumstances of Jadhav’s arrest and detention (India believes that he was kidnapped from Iran). A video released by Pakistan in which Jadhav appears to admit his guilt is suspicious, and suggests that it was forced or done under duress. And the opacity of the legal process – in a Pakistani military court, no less – that resulted in his death sentence is very disturbing.
Third, we must look upon this as a political victory for India as much as a legal one. ICJ is an international court, and like much international law, the court lacks appropriate enforcement mechanisms. In the past, parties – including the United States – have ignored ICJ rulings concerning the Vienna Convention and executed citizens of other countries, although not for alleged espionage. Yet should Pakistan now ignore ICJ and execute Jadhav, it will clearly be an act of bad faith.
Two other criticisms that have been made in India concerning the decision to go to ICJ should be addressed. First, concerns have been expressed that India might be unnecessarily internationalising relations with Pakistan by taking this case to ICJ. This should not be a major concern. India’s position on ICJ’s jurisdiction is clearly stated, and based on its declarations recognising the jurisdiction of the court as mandatory, which were submitted in 1974. India’s determination, however, was that a matter related to the Vienna Convention overrode its own stated objections to the jurisdiction of the court, specifically that such jurisdiction would not extend to disputes between two current or former Commonwealth members.
Finally, questions have been raised as to whether this was a necessary step, or the best recourse. For this, the answer must be found in ICJ’s statement. Given that this is a death sentence and that the circumstance of Jadhav’s trial and detention are suspect, it was necessary to do everything possible to delay his execution. Going to the ICJ and thus overriding prior concerns about internationalisation was one way of doing so, and given the court’s stay order, has proved successful for that limited purpose.
Overall, the ICJ stay on Jadhav’s execution is a political victory for India, one that casts aspersions on Pakistan’s goodwill and the rule of law in that country. But it should be seen for what it is: the start of what may still be a long and messy process to bring Jadhav home.