The International Court of Justice (ICJ) verdict on Kulbhushan Jadhav case is indeed a triumph for India. The world court, ruling in favour of India, fifteen to one, has not only directed Pakistan to grant consular access to Jadhav but also held Pakistan guilty for violating the Vienna Convention. Announcing the verdict, President of the ICJ Judge Abdulqawi Ahmed Yusuf ordered an effective review and reconsideration of the conviction and sentence of Mr Jadhav. The judgment will effectively stay Jadhav’s death sentence awarded by a military court in Pakistan and enable India to provide diplomatic assistance to its former naval officer.
However, the dispute between India-Pakistan over Kulbhushan Jadhav will not end with this verdict. Rather, the verdict has the potential to intensify the tension between the two South Asian powers. For instance, there are only two possible future scenarios for this case. First, Pakistan reviews Jadhav case in a civil court. Second, Pakistan dishonours the ICJ verdict. Considering the relationship between India and Pakistan, whatever may be the outcome, saving the life of Jadhav will be difficult.
A fair trial for Jadhav
As per the judgment of ICJ, Pakistan is under obligation to inform Jadhav his rights, provide consular access and appropriate reparation, without any delay. Pakistan is also under the obligation to review and reconsider the conviction and sentence. However, here, the Court said that Pakistan has the right to choose the means of effective reviewing of the case. It increases the possibility of Jadhav gets a fair trial in a Pakistani civil court.
If this happens, the impending proceedings in a Pakistani High Court will consider the merit of the case given serious allegations made by Pakistan against Jadhav such as his involvement in sabotage and spying activities in Baluchistan. India will also get a chance to defend, presents arguments and evidence of these allegations. Providing evidence regarding the retirement of Jadhav from Indian Navy and his whereabouts, and business in Iran would be helpful to counter Pakistan’s claims in the court.
Another significant challenge before India would be defending on Jadhav’s passport, which has a different name on it, as Pakistan claimed. If India fails to provide concrete proof about Jadhav’s business interests in Iran and claims about his abduction by Pakistan from Iran, India will lose the current upper hand. India should foresee such a situation rather than think that ICJ order on Jadhav case as approval of India’s claim against Pakistan.
What if Pakistan disobeys Verdict?
What if Pakistan remains resolute to the military court’s decision and disobeys the verdict of the ICJ is an important one. Considering the fact that Pakistan is already under pressure from the international community on its support to terror groups, the country disobeying the ICJ verdict is unlikely. However, since the ICJ does not have enforcement power and judgment of Court in contentious cases are final, and no reverting is permitted, it will be exciting to imagine such a situation.
In situations of non-compliance of the verdict, the only option available to state is to approach the UN Security Council as per Article 94 of the UN Charter. The article enables “Each Member of the United Nations undertakes to comply with the decision of the ICJ.” It states that “If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.”
In the Security Council, permanent members can veto the resolution. When Nicaragua approached UNSC over non-compliance of ICJ judgement by the US, the former vetoed the draft resolutions several times. In such a situation, member states can approach the UN General Assembly as well. For instance, when Nicaragua turned to the General Assembly, it adopted four resolutions calling for full and immediate compliance with the Judgment of the International Court of Justice. In the case of Jadhav, a member state vetoing the verdict in the Security Council is unlikely. First, the ICJ verdict was nearly unanimous, adopted fourteen to one, and four permanent members were in favour of it. Though China, Pakistan’s all-weather friend, has always maintained a stance of denying consular access in cases involving national security and cases of espionage, this time it stood with the majority.
Nonetheless, whatever would be the response of Pakistan towards the ICJ verdict one thing is sure. Jadhav Case will be a pioneering initiative in India’s future pursuit of multilateral forums to achieve its national interests. Departing from its earlier position that there can be no third party involvement in the India-Pakistan conflict, India in an unprecedented move approached the ICJ to prevent the execution of its national sentenced to death by a Pakistan military court. India’s move was not only a break from its traditional reluctance to bring the India-Pakistan conflict to multilateral forums but a retreat from its indifference towards multilateral institutions as well.
The Jadhav Case showcases the virtue of doing right things at right time and place, rather than hanging on to irrational policy acuities that no outside mediation is acceptable in any aspect of the India-Pakistan conflict. Whether it is bilateral or, multilateral, India’s primary concern should be national interest and ensure the life of Indian citizens. Such a policy and approach was more or less absent in India’s foreign policy in the past. Cases such as banning of Masood Azhar at the UNSC and Kulbhushan Jadhav at the ICJ show that India is on the right track on using multilateral forums pragmatically.
