While the International Court of Justice is still to give its final order in the Kulbhushan Jadhav case that India took before it, the interim verdict of the UN court at The Hague on Thursday seems fundamentally logical and appeals to a sense of basic human values divorced from considerations of politics. Pending the final disposal of the case, the 11 judges of the court were unanimous that the ICJ did have jurisdiction in the matter as the issue concerned the guarantee of consular access to Mr Jadhav, who is in Pakistani custody after being tried by a military court there and awarded the sentence of death. The court also ordered that Mr Jadhav shall not be executed and that the Pakistan government will report to it on the steps taken to ensure this.
The ICJ’s order has caused much disappointment and confusion in Pakistan, besides mutual recrimination. It is easy to see the military will let the civilian government be the fall guy, although the civilians were at no stage involved in the Jadhav case. The Army took charge of it from the start to burnish its nationalist credentials. Pakistan turned down 16 written requests by India to be allowed consular access to its national. Mr Jadhav was disallowed the use of a counsel of his choice. The charges framed against him were not made public or communicated to India despite repeated requests. The court had no difficulty in proceeding on the basis that even spies and terrorists have human rights (if Pakistan’s contention is indeed valid that its Indian prisoner was on a spy mission).
In effect, it was a show trial of an Indian national who was apprehended by the Pakistanis in circumstances that look dubious at best (although Pakistan disputes the Indian version and calls the former naval officer an Indian spy), and the ICJ recognised this to be the case at core. Will Pakistan comply with the order? It is a rogue state with a slack sense of morality. It can, therefore, conceivably approach the UN Security Council for relief and to reiterate arguments questioning the ICJ’s jurisdiction, not respecting the fact that 11 judges of the court had unanimously taken the view they had. It is not unlikely that China will support it in the UNSC.
In that event, the ICJ will stand disregarded. This is because it has no means to ensure that its orders are enforced, although the court has said that in this matter Pakistan had a “legal obligation” to honour the Thursday directive. In the worst case scenario, which is far from inconceivable in the case of Pakistan, the Army can simply have their prisoner bumped off and plead innocence, instead of bothering with legal niceties.
