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May 19, 2017

Claiming Jadhav


May 19, 2017

In the first round of the legal battle over the fate of Kulbushan Jadhav at The Hague, the International Court of Justice stayed his execution and rejected Pakistan’s contention that the court did not have jurisdiction over the case. The decision came as a surprise to Pakistan which maintained that its 2008 bilateral agreement over consular access, which does not extend to spies, precluded ICJ involvement. This case now establishes that the Vienna Convention applies even to those who are alleged to be spies. Pakistan had told the ICJ that it would not execute Jadhav before August at the earliest until he exhausted his legal options, including applying for clemency. But since the ICJ case will take much longer than that – possibly two to three years – it has barred Pakistan from executing him till a verdict is reached. Pakistan’s reaction to the verdict shows that the decision came as a bolt from the blue. A statement put out by the Foreign Office maintained that no outside institution can be a party to our national security, which indicates that we are not accepting the order. But the Attorney General of Pakistan’s office put out a more measured statement, pointing out that the ICJ still has not ruled against Pakistan in the final matter of Jadhav’s guilt. While saying that the court’s decision has not changed the status of the case in our eyes, we will pursue the case to its logical end.

That would imply Pakistan will continue to present its case to the ICJ. This is the prudent thing to do since taking unilateral action when expressly forbidden to do so by the ICJ could hurt us diplomatically and take the spotlight away from Jadhav’s undoubted spying in the country. This may also present an opportunity to negotiate bilaterally with India to resolve the issue. What we also need to do is point out that India’s gloating over this initial victory betrays its hypocrisy. It is India which has continually maintained that outstanding issues should only be discussed between the two countries without involving any outside party. Now that it found it was not getting its way, it immediately rushed to the ICJ to get relief. We also need to keep pointing out the facts of Jadhav’s case: that he was found in Balochistan with fake identification and that he confessed to spying and a host of other crimes. We will have a chance to present the case in the ICJ but need to win in the court of public opinion too.


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