Deciphering the ICJ verdict in the Jadhav case

The International Court of Justice (ICJ) has just delivered its verdict in the Kulbhushan Jadhav case. Both India and Pakistan are claiming victory. So what does the ICJ’s verdict actually mean? Where has India won a spectacular victory in the ICJ’s decisions?

There are three major points where the ICJ has soundly supported India’s arguments and which constitute a victory for India. These are as follows:

The International Court of Justice has clearly turned down all and every argument Pakistan made that the Court did not have jurisdiction over this case. The ICJ has clearly voted 15-1 (the dissenting voice was of the Pakistan Justice) that it does have jurisdiction in the Jadhav case. This by itself is a major loss for Pakistan’s arguments in front of the Court.

Second, the ICJ has clearly decided that Pakistan was in violation of its responsibilities as a signatory to the Vienna Convention on Consular Relations which in its Article 36 states that the government of a nation has the right to access to one of its nationals if he/she is arrested in a foreign country. The Vienna Convention, in fact, goes on to argue that even the arrested national of another country has to be informed by the arresting authorities that he/she has the right to inform and contact the authorities of his home nation. In the Jadhav case, Pakistan violated the Vienna Convention in several ways. Not only did they refuse consular access to the Indian High Commission in Islamabad to Kulbhushan Jadhav despite repeated request for such access, but the Pakistan authorities also did not inform Jadhav that he had the right under the Vienna Convention to inform the Indian High Commission in Islamabad that he had been arrested by the Pakistan authorities and that he desired to be in touch and contact with an Indian consular officer from the High Commission. So, the ICJ has clearly judged that Pakistan is in violation of its Vienna Convention responsibilities.

Third, and most importantly, the ICJ has ruled that the order of execution issued by the Pakistan military court against Jadhav has been stayed until Pakistan reviews and reiterates the decision of the military court. Most observers and analysts have missed the importance and implication of this aspect of the judgement. What this part of the Court’s order means is that the trial of Jadhav is bad in law, that Jadhav was not given due process and therefore, it was essential for another trial to take place which would happen under the circumstances that Jadhav was given consular access and that a free and fair trial was undertaken.

Therefore, this part of the ICJ verdict is a stinging criticism of the military court which tried Jadhav who did not receive due process in that trial. This is an extremely important part of the ICJ judgement which Pakistan will find difficult to carry out except in a civilian court where the proceedings will have to be open to the public and hence to international as well as Indian opinion.

A lot of people including in the media have asked the question whether Pakistan will once again do a sham trial which will find Jadhav guilty. The simple answer is that Pakistan cannot afford to do that, as India can once again go to the ICJ and a sham trial will not stand scrutiny by the ICJ. So, it is most likely that Pakistan will have to undertake a trial which is open to the public whether in a military or civil court. Such a trial will perforce have to be fairer than the closed military court trial that he underwent earlier. A fairer trial will be good news for Kulbhushan Jadhav.

(Gautam Bambawale is India’s former Ambassador to Bhutan, Pakistan and China. He is currently Distinguished Professor at Symbiosis International University, Pune)

Views expressed above are the author’s own. They do not necessarily reflect the views of DH.