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July 19, 2019

The ICJ verdict


July 19, 2019

The International Court of Justice (ICJ) verdict on Wednesday in the case of Kulbhushan Jadhav – the Indian naval officer sentenced to death for espionage by a military court in 2017 – has created a strange situation as both Pakistan and India seem to have celebrated the judgment. Based on the fact that India had asked the ICJ to acquit Jadhav on spying charges, presenting the court’s verdict as a victory for India is patently false. Amongst the many causes of tension between Pakistan and India over the last decade, the Kulbushan Jadhav affair has been one of them. Jadhav’s family had gone before the Indian media to claim his innocence and seek his release or at least a meeting with his family in prison. The ICJ verdict should help clarify matters.

The court has rejected India’s request for acquittal after two-year long proceedings. It effectively told Pakistan to review its sentence in the matter based on its own legislation. However, the court did direct Pakistan to provide Jadhav with consular access. Effectively, the international court upheld Pakistan’s end of the bargain by stating clearly that the conviction and sentencing of Jadhav did not contravene the Vienna Conventions. In doing so, it accepted Pakistan’s position that Jadhav is an Indian national that had been operating on Pakistani soil using false papers. The 42-page court judgment leaves Pakistan the space to decide what legal mechanism to use in the trial of Jadhav. Based on the ICJ judgment, Pakistan must stay the execution of Jadhav temporarily in favour of a retrial with the alleged spy provided consular access. There is little in the process that Pakistan will be worried about in terms of challenging its own position on the matter.

India’s position has largely remained procedural in the case. As Pakistan has noted again, Jadhav retains a number of options for retrial and clemency before any sentence is carried out, including filing a review petition in the high and supreme courts. Instead, India thought that the ICJ would give it a victory. This has not happened and it seems India’s international pressure has failed to lead to any formal pressure on Pakistan to release Jadhav. For now, the scheduled execution of Jadhav remains likely. Pakistan would however do well to earn diplomatic points for itself before the world by looking over the points made by the ICJ and Indian response to them so that there can be no lingering doubt about the matter. The hope is that the Jadhav verdict can end such spy games which are in no one’s favour. On its part, India would do better to accept the verdict and improve diplomatic relations with Pakistan.

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