India’s big judicial victory, as the International Court of Justice (ICJ) put on hold the death sentence awarded to Kulbhushan Sudhir Jadhav on the charge of spying, shows what good team effort can do.
It has taken some fine behind-the-scenes coordination between the Indian government, lawyer Harish Salve and the country’s top diplomats, who have worked diligently for hours, going through the fine print and building a methodological case, to make an impression on the ICJ.
The ICJ asked Pakistan to review Jadhav’s conviction and observed that the country violated the Vienna Convention by not granting diplomatic assistance to the Indian national before his sentence.
A continued stay of execution constitutes an indispensable condition for the effective review and reconsideration of the conviction and sentence of the Indian businessman, whom Islamabad has branded as a spy.
Significantly, the Court found that Pakistan had deprived India of the right to communicate with and have access to the incarcerated man, to visit him in detention and to arrange for his legal representation, and thereby breached obligations incumbent upon it under the Vienna Convention on Consular Relations. By this ruling, it has over turned Pakistan’s contention based on a 2008 bilateral treaty on consular relations, which Islamabad had argued overrode any obligations under the Vienna Convention.
Pakistan had claimed that espionage and terrorism are exceptions to the Convention. It now has egg on its face and should take steps to prove that it is a country which is law-abiding and believes in the international system of justice. If Pakistan does not, the charge of it being a rogue state will gain further credence.
The ICJ has rightly held that it has jurisdiction to entertain India’s claims. With the observation that “India was under no obligation to consider other dispute settlement mechanism prior to instituting proceedings”, New Delhi’s position stands vindicated.
The ICJ’s ruling that “Pakistan’s objection based on alleged noncompliance cannot be upheld” has put the ball in Pakistan’s court. After being petitioned by India in 2017, the ICJ had directed Pakistan to take all measures at its disposal to ensure Jadhav was not executed pending its final judgment.
It is up to Islamabad to make the next move, and given the verdict on Wednesday, it has no choice but to ensure that Jadhav gets what any international citizen placed under similar circumstances would – genuine legal access and, if not proved guilty through a fair trial, an honourable acquittal.
Nowhere in the world are military courts – the kind that convicted Jadhav for terror and espionage – regarded as legally sacrosanct. And Pakistan’s military courts must take cake as far as opacity is concerned. For long, Pakistani Army and its spy agency ISI have been regarded and proved to be one of the main backers of international terror groups. The charge has not been made by India, but by neutral global investigators. Islamabad now has a lot to live up to.
