Kulbhushan Sudhir Jadhav’s family in India can breathe a sigh of relief. Jadhav, India’s most high profile prisoner in Pakistan, has got relief from the International Court of Justice at The Hague. In a ruling on Wednesday, the ICJ has held that Pakistan is “under an obligation’’ to inform Jadhav of his rights and “provide Indian consular officers access’’. The court has also directed Pakistan to stay his execution, saying it “constitutes an indispensable condition’’ for the effective review and reconsideration of the conviction.
For India, which had fought on the plank of the denial of consular access—part of the Vienna Convention which “contributes to the development of friendly relations’’ between two countries—this verdict is a shot in the arm. What makes it much better is that the court has stayed the execution. The court has also asked Pakistan to take appropriate measures to provide review and reconsideration of the sentence of Jadhav, thereby giving him a second chance at defending himself. This time with adequate legal representation. This was a unanimous verdict with only the Pakistani ad hoc judge, Tassaduq Hussain Jillani, voting against India. The fact that ICJ vice president Xue Hanqin from China and Judge Joan E. Donoghue voted in favour of India is a bonus.
The Jadhav case has been at the centre of the biggest legal battle between India and Pakistan. A former Indian navy officer accused of being a spy in Pakistan—and sentenced to death by a military court—is straight out of a Bollywood movie. India, in a surprise attack, chose to knock on the doors of the ICJ. The submission of the memorial, as the petition is called, was filed with the stealth of a covert op. Harish Salve was specially chosen to represent India for this task. His plan was classic and simple: to appeal under a violation of the Vienna Convention. Salve proved his worth and the case was heard within seven days of being filed. In its petition, India argued that there had been an “egregious violation'' of the Vienna Convention.
Pakistan, however, chose to challenge India’s claim that Jadhav was entitled to consular access under the Vienna Convention, arguing that he was an Indian spy.
The court, however, has upheld the sanctity of this convention.
While the court may have granted Jadhav—and official visitors—reprieve, Pakistan can still claim that the verdict isn’t a complete win for India. “It would be in the interest of justice, of making human rights a reality, to direct his release,'' Salve had argued passionately urging the court to make history. This was clearly beyond the scope of the court. Also, Pakistan still has the ability to argue that the court has not pointed a finger of blame at the sanctity of its legal procedures. Salve had in his submission referred to the trial as farcical.
One of the most watched trials, the Jadhav trial, however, became the perfect pulpit for both the sides to present different sides of the narrative. For Pakistan, it was the first chance and an international arena to put forward its case against India. To use Jadhav as a spy and speak about the K-word, human rights violations and being a victim of terror. The oral arguments were held at the backdrop of the Pulwama attack, giving both sides an opportunity to use the space to play to their domestic audience. In his final round of pleading, Pakistan’s agent Anwar Mansoor Khan, who claimed to be a Prisoner of War (PoW) during the 1971 war, said that Jadhav did have recourse to a civilian court. A case of terrorism has filed in a civil court, and he will be given legal representation if he wants it. This plea does give Pakistan an opportunity to argue that this victory of India is in name only. And with Salve’s plea of setting Jadhav free being denied, it is actually Pakistan that has won.
It was one the most bitterly fought battles between both Salve and Pakistan counsel Khawar Qureshi, whose rather brash style set the tone of the arguments.
Both counsels chose to use the court to score political points. There has been history between the two, which coloured certainly the tone of their arguments with words—where a nursery rhyme Humpty Dumpty became a slur. Today, Salve was missing in the court, while Qureshi in his wig looked on.
The question is who wins? In this case, both seem to have chosen to interpret the judgment in their own favour. However, the verdict needs to be looked in the prism of all that has happened in India-Pakistan relations—where for years nothing moves and then suddenly there is a spate of energy. The message is sometimes in just tiny details. The past week has seen a hint of a thaw: the second meeting on the Kartarpur Corridor was positive; on Tuesday Pakistan opened up its airspace, which had been shut since Balakote airstrike in February; in a dramatic move just hours before the Jadhav verdict, Hafiz Saeed was arrested. Saeed, who is the mastermind of the 26/11 attacks was caught while traveling from Lahore to Gujranwala. Saeed is the founder of Lashkar-e-Taiba and Jamaat-e-Dawa.
While joining the dots may suggest that Pakistan is walking the talk, as India had demanded them many times before, these developments also come at the eve of Prime Minister Imran Khan's first ever visit to America. With pressure mounting by FATF (Financial Action Task Force) to crackdown on militant groups, Khan is possibly sending a message to President Donald Trump, too. The consular access to Jadhav, is then, just another signal.