Pakistan and the ICJ Verdict on Kulbhushan Jadhav

18 Jul, 2019    ·   5602

Rana Banerji reflects on the recent decision at The Hague and its implications for Jadhav's immediate future

Rana Banerji
Rana Banerji
Distinguished Fellow

In a major legal, diplomatic, and moral victory for India, the International Court of Justice (ICJ) at The Hague upheld Pakistan’s obligation to provide India consular access to detained Indian national, Kulbhushan Jadhav, extending the stay on his death sentence by a Pakistani military court, and asking for "an effective review and reconsideration" of his conviction there.

Significantly, this was a resounding 15-1 verdict, with the Chinese vice-president and the US judge upholding the Indian legal position. The lone dissenter, standing in ''splendid isolation," was ad-hoc judge, former Pakistani Chief Justice Tassaduq Hussain Jilani.

The Court unanimously decided that it had jurisdiction to deal with this case, on the basis of Article 1 of the Optional Protocol concerning the Compulsory Settlement of Disputes to the 1963 Vienna Convention. Not accepting Pakistan’s attempt to exclude application of the Vienna Convention on consular access, 1963, to a separate category of 'spies', the Court ruled that Pakistan "must inform Mr Jadhav without further delay of his rights under Article 36, paragraph 1(b), and allow Indian consular officers to have access to him and to arrange for his legal representation, as provided by Article 36, paragraph 1 (a) and (c)."

It also categorically rejected Pakistan’s attempt to obfuscate the issue of Jadhav’s nationality, on grounds of his holding "a genuine Indian passport" in the 'false name' of Hussain Mubarak Patel. Ironically, the Court pointed to the Pakistan Foreign Office’s own correspondence with Indian counterparts accepting Jadhav’s Indian nationality. That letter implied acceptance and made provision of consular access mandatory.

However, it would be worthwhile for domestic political opinion in India to eschew its euphoric reception of the verdict just at present.

In Pakistan, as has been usual for a repressed civil society living in denial, a quite different spin was given to the judgment. Making light of the 15-1 unanimity of the decision, much has been made of the Court’s rejection of India’s plea to completely free Jadhav. His alleged complicity in acts of terrorism and sabotage inside Pakistan has been reiterated in official hand-outs.

US-bound Prime Minister Imran Khan tweeted, "Appreciate ICJ’s decision not to acquit, release & return Commander Kulbhushan Jadhav to India. He is guilty of crimes against the people of Pakistan. Pakistan shall proceed further as per law." Foreign Minister Shah Mehmood Qureshi declared the ICJ ruling as a “great success and moral triumph.”

Describing the ICJ verdict as "a defeat for New Delhi’s "false narrative"," Inter Services Public Relations (ISPR) Director General Maj Gen Asif Ghafoor told a Pakistani TV channel, “India wanted the ICJ to strike down the military court’s verdict and order a retrial in a civilian court, arguing that only reviewing the decision wouldn’t be enough. However, the ICJ has neither ordered Jadhav’s release, nor did it set aside the verdict,” lamely adding that "even ICJ seeking a review and reconsideration of the verdict shows the faith it places in Pakistan’s judicial system," and "the verdict was bound to be reviewed and reconsidered before the President’s approval anyway."

It would be pertinent to point out in this context, as the ICJ judges themselves noted, in October 2018, a two-judge bench of the Peshawar High Court consisting of Chief Justice Waqar Ahmad Seth and Justice Lal Jan Khattak ruled that recent terrorism convictions by military courts in the province were wrongful and based on ill-will and not evidence. It pointed to many procedural flaws in the recording of confessional statements in Field General Court Martials (FGCMs). This judgment has been appealed against by the federal government and the case is pending before the Pakistan Supreme Court.

Meanwhile though, the 23rd Amendment to the Pakistan Constitution, allowing a two-year extension for trial of terrorists through speedy military trial courts under the Pakistan Army Act, 1952, lapsed in January 2019. The razor-thin majority configuration of Imran Khan's Pakistan Tehrik-e-Insaf (PTI) government in the National Assembly presages against its further extension.

These reservations notwithstanding, it would appear that the Pakistan army will be in no mood to allow a civilian trial for Kulbhushan Jadhav, who, they never tire of repeating, is deemed "a serving naval officer" from India caught in espionage.

As regards providing consular access, Pakistan will have to reluctantly allow this, though there could be the usual foot-dragging and cussedness in providing 'free and fair' conditions. It is quite possible that the already much tortured Jadhav may be presented for the access, in a medicated state of partial stupor, or while suffering from Stockholm Syndrome, so that he somehow holds close to the narrative of his much touted earlier 'confession', obtained under duress.

Due consular access would include legal assistance by Indian legal counsel, which, as military law currently stands in Pakistan, cannot be allowed unless the Army Act is amended. Under such circumstances, as pointed out by India’s brilliant legal luminary, Harish Salve, who presented India’s case before the ICJ so deftly, India could have the option of going back to the ICJ if Pakistan brazenly violates the order, or if the review and reconsideration by even another military court trial is deemed "not effective enough."

Though the judgment brings some succour and hope for Jadhav’s family and friends, it may be premature to expect Jadhav to be released any time soon.


Rana Banerji is former Special Secretary, Cabinet Secretariat, Government of India, and Member, IPCS Governing Council.