NEW DELHI: While the government seemed to have taken the maximalist position by demanding that the International Court of Justice (ICJ) ask Pakistan to release Kulbhushan Jadhav, there are several other rulings which the court can pass in its judgment Wednesday which will allow India to claim vindication of its decision to knock on the doors of the international court.
Ahead of the judgment, India’s main hope is that the Court will hold Pakistan guilty of having violated Vienna Convention on Consular Access (VCCR) 1963 by denying India consular access to Jadhav.
India’s case was built around the same point as it exposed the farcical nature of Jadhav’s military trial which resulted in his death sentence. India is also hoping, as it had pleaded before the Court in case Jadhav’s release wasn’t possible, the ICJ will ask Pakistan to go for a civil trial of the alleged Indian spy after allowing him consular and legal assistance from India.
For India, the violation of Article 36 of VCCR by Pakistan makes it a fit case for the annulment of Jadhav’s death sentence and also for the court to ask Islamabad to release him immediately. As India has argued, Pakistan violated Vienna Convention by failing to inform India immediately of his arrest, by not informing Jadhav of his rights and preventing him from contacting India’s consular post and also by denying Indian officials access to him despite repeated requests from Indian authorities for the same.
Both India and Pakistan are aware of the fact that the ICJ is unlikely to give any lopsided verdict. Just as India called for Jadhav’s trial in a civil court in case the ICJ wasn’t able to secure his release, Islamabad said that the review and reconsideration mechanism was available with the Pakistan high court in case the ICJ found it guilty of having violated VCCR. Pakistan is well aware of its position that the 2008 bilateral agreement on consular access overrides VCCR is unlikely to pass muster with ICJ.
While the Court is likely to find that Pakistan violated international law by denying India access to Jadhav, Geneva-based international lawyer and first Indian law-clerk at the ICJ Shashank P Kumar says the more interesting issue will be that of the relief that the Court would be willing to provide for such a violation. This will determine if India gets the relief it seeks for Jadhav or if its `victory’ is purely symbolic.
“In past cases of this kind — all of which involved trials and convictions under the US criminal justice system — the Court has usually provided relief by ordering a `review and reconsideration` of the conviction through judicial means. In the Jadhav Case, however, India has argued that Pakistani courts are biased and therefore not in a position to effectively undertake a `review and reconsideration’ of his conviction, and that therefore the court should order his release,’’ says Kumar.
“It is important to remember however that the ICJ is not a criminal court of appeal. It will therefore be interesting to see if and how the Court moulds the relief of `review and reconsideration’ of the conviction by domestic courts — a relief that is usually granted in cases involving US criminal courts — to the peculiarities of Pakistan’s military court system under which he was tried and convicted,’’ he adds.
As other Indian experts have stated, any Pakistani court is unlikely to remain immune to pressure from not just Pakistan authorities but also the public which is convinced Jadhav was an Indian agent out to create havoc in Pakistan.
However, even if the ICJ is reluctant to question the domestic judicial process of a sovereign nation, as Kumar says, it would be difficult for the court to compare the independence of Pakistan military courts with that of US criminal courts.