The International Court of Justice (ICJ) delivered its judgment on July 17 in the Kulbhushan Jadhav case. Before coming to the possibilities that the judgment opens up, it may just be appropriate to set out the arguments made by the two sides as summarised in the ruling.
India’s broad contentions were: “The remedies requested by India in its final submissions have already been set out (see paragraph 19 above). In summary, India requests the Court to adjudge and declare that Pakistan acted in breach of Article 36 of the Vienna Convention on Consular Relations. Pursuant to the foregoing, India asks the Court to declare that the sentence of Pakistan’s military court is violate of international law and the provisions of the Vienna Convention, and that India is entitled to restitutio in integrum. It also requests the Court to annul the decision of the military court and restrain Pakistan from giving effect to the sentence or conviction, to direct Pakistan to release Mr Jadhav and to facilitate his safe passage to India. In the alternative, and if the Court were to find that Mr Jadhav is not to be released, India requests the Court to annul the decision of the military court and restrain Pakistan from giving effect to the sentence awarded by that court. In the further alternative,
India asks the Court to direct Pakistan to take steps to annul the decision of the military court. In either event, it requests the Court to direct a trial under ordinary law before civilian courts, after excluding Mr Jadhav’s confession and in strict conformity with the provisions of the International Covenant on Civil and Political Rights, with full consular access and with a right for India to arrange for Mr Jadhav’s legal representation.”
Pakistan’s averments as recapitulated in the verdict were that; “Pakistan, for its part, contends that the relief sought by India (the annulment of a domestic criminal conviction, the annulment of a domestic criminal sentence, the release of a convicted prisoner) could only be granted by an appellate criminal court. According to Pakistan, granting such relief would transform the Court into a court of appeal of national criminal proceedings. It submits that the Court has repeatedly and consistently affirmed the principle that it does not have the function of a criminal appellate court and maintains that restitution to the status quo ante is not an appropriate remedy for a breach of Article 36 of the Vienna Convention, because, unlike legal assistance, consular assistance is not regarded as a predicate to a criminal proceeding. Pakistan maintains that the appropriate remedy in this case would be, at most, effective review and reconsideration of the conviction and sentence of the accused, taking into account the potential effects of any violation of Article 36 of the Vienna Convention. It refers to the decision rendered by the Peshawar High Court in 2018, which set aside more than 70 convictions and sentences handed down by military courts. It contends that its domestic legal system provides for an established and defined process whereby the civil courts can undertake substantive review of the decisions of military tribunals, in order to ensure procedural fairness has been afforded to the accused, and that its courts are well suited to carrying out a review and reconsideration that gives full weight to the effect of any violation of Article 36 of the Vienna Convention.
Mark the words “appropriate remedy in this case would be, at most, effective review and reconsideration of the conviction”. That is what Pakistan argued and it got.
The ICJ adjudication of substantive issues involved in this list can be broadly delineated as follows; The Court considers that a special emphasis must be placed on the need for the review and reconsideration. To be effective the review and reconsideration of the conviction and sentence of Mr Jadhav must ensure that full weight is given to the effect of the violation of the rights set forth in Article 36, paragraph 1, of the Convention and guarantee that the violation and the possible prejudice caused by the violation are fully examined. It presupposes the existence of a procedure, which is suitable for this purpose. In this regard, the Court takes full cognizance of the representations made by Pakistan. During the oral proceedings, the Agent of Pakistan declared that the Constitution of Pakistan guarantees, as a fundamental right, the right to a fair trial; that the right to a fair trial is "absolute" and “cannot be taken away”; and that all trials are conducted accordingly and, if not, “the process of judicial review is always available”. The counsel for Pakistan assured the Court that the high courts of Pakistan exercise “effective review jurisdiction”, giving as an example the decision of the Peshawar High Court in 2018.
The Court notes that the obligation to provide effective review and reconsideration can be carried out in various ways. The choice of means is left to Pakistan. …Consequently, Pakistan shall take all measures to provide for effective review and reconsideration, including, if necessary, by enacting appropriate legislation. To conclude, the Court finds that Pakistan is under an obligation to provide, by means of its own choosing, effective review and reconsideration of the conviction and sentence of Mr Jadhav, so as to ensure that full weight is given to the effect of the violation of the rights set forth in Article 36 of the Vienna Convention, taking account of paragraphs 139, 145 and 146 of this judgment. The Court considers that a continued stay of execution constitutes an indispensable condition for the effective review and reconsideration of the conviction and sentence of Mr Jadhav.
In essence, the ICJ directed Pakistan to provide consular access, review the death sentence given by a military court by means that Pakistan considers efficacious and stayed the death sentence pending such effectual review and reconsideration. This provides Pakistan with both a face-saver and an opportunity to release an innocent businessman and right a monstrosity that it perpetrated. Responsible veterans in the strategic community believe that Jadhav became a victim of circumstances. He was ostensibly kidnapped by the notorious smuggler Haji Baloch as retribution for his narco-terror boat being blown up by the Indian coast guard on December 31, 2015, and handed over to the ISI. He was in Iran and not in Pakistan when the abduction took place.
Why was Jadhav of interest to the ISI? It needed a scapegoat in its attempts to pull wool over the eyes of the international community by establishing (wrongly) India’s purported involvement in the Baloch insurgency even as the new US administration, under President Donald Trump, seemed all set to smack Islamabad for not defanging the Haqqani network. Jadhav unfortunately was in the wrong place at the wrong time. Would Pakistan rise to the occasion now and grab the fig leaf that the ICJ judgment has provided it? That is what they argued for in the first place. The jury will remain out on that question for quite a while....