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Opinion Op Ed 26 May 2017 Jadhav: Is India cel ...
The writer is a senior advocate of the Supreme Court and former additional solicitor-general of India. He can be reached at knbhat1@gmail.com

Jadhav: Is India celebrating too soon?

Published May 26, 2017, 12:37 am IST
Updated May 26, 2017, 12:44 am IST
The final decision about Mr Jadhav’s fate will have to be taken by the Pakistani courts or authorities, not by the ICJ.
Kulbhushan Jadhav (Photo: Screengrab)
 Kulbhushan Jadhav (Photo: Screengrab)

La’affaire Kulbhushan Jadhav before the International Court of Justice was indeed a surgical strike. Its impact was more than the actual, immediate damage it caused. Pakistan was rattled, as is evident from the fact that the views expressed there were often conflicting. The damage done was to Pakistan’s ego — kindling a feeling of hurt that, perhaps, reminded them of their batsman missing a full toss, and getting stumped. The basic facts are that Mr Jadhav, a retired naval officer from India, was allegedly kidnapped by the Pakistani police from Iran, where he was on private business. Thereafter he was charged with various offences like espionage and terrorism. About a month ago, a military court in Pakistan sentenced him to death in secret proceedings. Despite repeated requests from India, no access was given to Indian diplomats in Pakistan to meet him. Eventually India moved the ICJ on May 8, complaining about a violation of the Vienna Convention on Consular Relations, with the main prayer that Pakistan be restrained from giving effect to the sentence awarded by the military court, and that it be directed to take steps to annul the decision of the military court. If Pakistan was unable to annul the decision, then the ICJ was requested to declare the decision of sentencing Mr Jadhav as illegal for being violative of international law and treaty rights.

Along with this petition, India also made an application for provisional relief to direct Pakistan to take all measures necessary to ensure that Mr Jadhav is not executed during the pendency of the case before the ICJ. The foundation of India’s complaint was denial of consular access in violation of the Vienna Convention. In other words, if Pakistan had acceded to one of the many requests India made for access to Mr Jadhav, there would have been no basis for India to approach the ICJ. This is because the international court has no authority to overrule the decision of a state court, however atrocious it may be. The ICJ can only deal with international law, including treaty obligations. What will be the effect on the pending case before the ICJ if Pakistan grants consular access now? The possibilities are many and imponderable. Eleven of the 15 judges of the ICJ heard both India and Pakistan on May 15. The court pronounced the order on May 18, granting India’s prayer for a provisional order restraining Pakistan from executing the sentence of death until the matter is finally disposed of by it. India made no prayer for provisional access to Mr Jadhav — and rightly so — because the final relief sought is not access to the victim but nullifying Pakistan military court’s decision.

 

On May 18, the president of the ICJ, Judge Ronny Abraham, a French national, pronounced the unanimous verdict of the 11-judge bench, which included a judge each from the five permanent members of the Security Council, including China. Judge Cançado Trindade, hailing from Brazil, pronounced a separate but concurring order — adding nothing of immediate relevance to the case. However, Judge Dalveer Bhandari from India could have avoided writing a separate opinion while agreeing with the rest — this has already invited criticism. His reported expression of joy to the media at the outcome from the ICJ has exposed him to the serious charge of bias. In this game of one-upmanship, Pakistan will not miss any opportunity to raise objections about him being a part of the bench that finally hears the case, if only to embarrass India. Is international law really a law? Or is it only morality? Basic textbooks on international law start with this question and no final answer has emerged. The question is posed because international law lacks sanction or power to enforce the dictates of law. Under national laws even a sitting judge of a high court in India is being sent to prison for violating the law. But in the present case, the question that arises is: what if Pakistan refuses to obey the final directions of the ICJ.

Rules state that if any party to a dispute before the ICJ disobeys its order, the aggrieved party can approach the Security Council, which has the power to impose sanctions against the defaulting party. The sanctions may include prohibiting other countries from dealing with the defaulting country. One may recall that sanctions were imposed in respect of Iraq for its alleged failure to disclose or destroy weapons of mass destruction that — as eventually proved — they did not have. Iraq, a country rich with resources, particularly crude oil, was starved to submission through sanctions. So sanctions can be effective, but there is one catch — any of the five permanent members of the Security Council can successfully scuttle such sanctions by vetoing the proposal. In the case of Pakistan, it is expected that China will veto any proposal for imposing sanctions against it. India has been the beneficiary of 100 vetoes by Russia opposing plebiscite in Kashmir. Very recently a proposal to impose sanctions against Syria was vetoed by both Russia and China.

The final decision about Mr Jadhav’s fate will have to be taken by the Pakistani courts or authorities, not by the ICJ. Being fully conscious of this limitation, India moulded its prayer to the ICJ accordingly, requesting that Pakistan be directed to annul the death sentence in accordance with Pakistani laws. The best that India can achieve at the ICJ is a direction for Mr Jadhav’s retrial in accordance with Pakistani laws and in Pakistani courts. The Pakistanis are therefore right in commenting that India is celebrating a little too soon. Yes, a direction not to hang Mr Jadhav until the ICJ passes a final verdict is a great relief — the court could have rejected India’s complaint at the onset. And the provisional order of May 18 is limited only in terms of its duration, not in terms of efficacy. Its direction will be in force for at least another year despite all efforts to expedite the final hearing. By that time, hopefully, Pakistan will have an effective civilian government. Or, who knows, the relations between India and Pakistan may become good enough to allow Mr Jadhav to get a free passage. The provisional order of May 18 has permitted nursing of such hopes.

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