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After the verdict

The ICJ has ordered Pakistan not to hang the Indian citizen for now. Still, there is a long way to go before the case is laid to rest

After the verdict

Khulbhushan Jadhav lives on. In its ruling, the International Court of Justice (ICJ) has ordered Pakistan not to hang the Indian citizen, who was convicted of spying and sentenced to death, till the court hears the case brought forward by Delhi, which argues that Islamabad violated the Vienna Convention on Consular Relations (VCCR), to which Pakistan is a signatory.

Jhadav was arrested in March 2016, at the Pakistan-Iran border, on charges of terrorism and sabotage. Later in the month, his confession video was made public in which he claimed that he was a serving Indian navy officer and RAW operative. On the 10th of April, it was announced by the Inter Services Public Relations (ISPR) that Jadhav has been awarded the death sentence after being found guilty by a military court. Last month, India moved the ICJ seeking consular access to Jhadav, which had been denied by Islamabad on the pretext that the case did not fall under the VCCR. India accused Pakistan of “egregious violations of the Vienna Convention”.

What happens now?

“The real phase starts hereinafter,” says Ahmer Bilal Soofi, a former caretaker federal law minister, and expert on International law. “This is where the court (ICJ) will gradually issue a schedule, where Pakistan will be asked to file a detailed reply”. This process will take months if not weeks, because the court”s roster is pre-occupied and it will have to create space.

This view is corroborated by Reema Omer who is a legal advisor for the International Commission of Jurists. “The court will now conduct proceedings on jurisdiction and merit. Both parties will be heard again. This could take up to a couple of years even.”

Soofi believes this time lag is a blessing for Islamabad. “It gives Pakistan a very unique opportunity to document Indian intervention inside Pakistan at the highest judicial forum of the world.”

In the aftermath of the ICJ”s verdict, the Pakistani legal team has received quite some flak at home, for being grossly under prepared and rushed. Some experts say that because they believed the ICJ does not have jurisdiction, they should not have attended the hearing. Others suggest that Pakistan was ill-prepared and thus unable to utilize the 90 minutes it had to make its case.

The ball now, is in Pakistan’s court. “The (Pakistani) establishment certainly will not be pleased (with the verdict). But then again the establishment worries about Pakistan’s global image, and it may feel compelled to respect the verdict of an international court so as to not risk further damage to its reputation abroad,” says Michael Kugelman.

In any event, the verdict is out, and the worst case scenario, for the time being, is that consular access may well be granted.

However, from India’s perspective, this is a step in the right direction. “The immediate relief sought was a stay till final disposition, and that has been granted,” says Siddharth Varadarajan, founding editor of The Wire. “The best India can hope for at the merit stage is that the ICJ will eventually ask Pakistan to reevaluate the verdict, perhaps through a new trial after granting India consular access.”

The Agent of Pakistan, Dr. Mohammed Faisal, during the hearings.

The Agent of Pakistan, Dr. Mohammed Faisal, during the hearings.

Consular access means that Jhadav will, for the first time since his arrest, be able to speak freely with Indian diplomats. Siddharth believes that “If it emerges through his (Jhadav”s) engagement with Indian consular officials that his confession was coerced, this will seriously undermine Pakistan”s case against him”,

“The ICJ is not acting as court of appeal,” clarifies Soofi. “To assume they can grant every wish list of India is not possible; the two three reliefs possible to India are ultra vires of the court’s jurisdiction, for example when they say that he should be released or the court should set aside the sentence etc, this is a relief the court cannot grant.”

So, to be clear, the verdict and sentence handed down to Jhadav still stands. However, the Indian national still has some avenues of recourse, within Pakistani law.

“He can challenge (the decision) in terms of Article 199,” says Soofi. “For that he is guided by section 83 of the civil procedure code.”  However, Soofi clarifies that “because he is an alien enemy, he will have to take a No Objection Certificate (NOC) from the federal government to file.”

The Indian team at The Hague on Monday.

The Indian team at The Hague on Monday.

The other alternative is that the state of India can itself become a party in a petition in any high court in Pakistan, which comes under section 84 of the civil procedure code, where a foreign state is allowed to sue. “This means they have a pretty good chance of staying proceedings,” says Soofi.

Soofi believes that at the very least Pakistan should honor the judgement of the ICJ for the time being. “There is a prevalent view that we should disregard it”, he says. “If we accord honour to our own courts, then we should do the same here.”

The verdict comes at a time when ties between Islamabad and Delhi are rocky at best. There have been regular skirmishes on the border, and the bilateral dialogue between the two is on hold. “India-Pakistan relations were already on a downward spiral before India went to the ICJ, but now the stakes have been raised significantly with the Jhadav case as a key international court has taken India’s side,” says Michael Kugelman, Deputy Director and Senior Associate for South Asia at the Woodrow Wilson Center in Washington. “How Pakistan responds could go a long way in determining if bilateral tensions ease a bit or if they stay on an ever more dangerous collision course.”

Kugelman believes that with the verdict, India has scored a major point by going to, and gaining a favourable response from the ICJ. “India has succeeded in doing something that Pakistan has long tried to do but failed – and that is to bring international attention to, and attract international support for, India’s position in the broader India-Pakistan dispute” he says. “By no means has Jhadav become a household name, and the world isn’t exactly watching this case with rapt attention. But going to the ICJ, and earning its support has brought more legitimacy to India’s position”.

The ball now, is in Pakistan’s court. “The (Pakistani) establishment certainly will not be pleased (with the verdict). But then again the establishment worries about Pakistan’s global image, and it may feel compelled to respect the verdict of an international court so as to not risk further damage to its reputation abroad,” says Kugelman.

Still, there is now a long way to go before this case is laid to rest. It’s ramifications, however, may be felt for a long time to come.

Aasim Zafar Khan

Aasim Khan
The author is a Lahore based journalist. He may be contacted at [email protected],

2 comments

  • R S Chakravarti

    What kind of mentality considers giving consular access a “worst-case scenario”? It would have been given without a thought, if Pakistan had nothing to hide. India’s claim is that Jadhav was kidnapped in Iran and taken to Pakistan and the confession was dictated to him. If this is false, Pakistan ought to welcome the chance to prove it.

    • @R S Chakravarti Well said sir

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