After the ICJ verdict in Kulbhushan Jadhav case, let diplomacy take over

Amid Indian and Pakistani claims of victory in the International Court of Justice, the fate of Kulbhushan Jadhav, a former Naval commander, held for allegedly spying and aiding terrorism in Balochistan, is in limbo.

The ICJ’s was a unanimous decision. It became a 15-1 verdict as the Pakistani judge dissented.

It is customary for the world court to include in the bench a judge from each litigant country while hearing inter-state disputes.

The verdict offered scope for both India and Pakistan to claim victory. India was happy as it saved Jadhav from the gallows, for the time being at any rate.

Pakistan was happy too.  Although the court held that the death sentence awarded to Jadhav by a military court was vitiated by Pakistan’s failure to respect the provisions of the Vienna Convention on Consular Access, it afforded the country an opportunity to remedy the mistake and review the trial.

India had raised objections to Jadhav’s trial by a military court and demanded that he be tried by a civil court under the normal law of the land. The ICJ did not accept this demand.

This means there is nothing to prevent Pakistan from leaving it to the military court to review the trial.

The Pakistan government has stated that it will provide consular access to Jadhav, as directed by the ICJ. It has also indicated that the review will be undertaken by the military court.

The two governments’ claims of victory, accompanied by media fanfare, are aimed at impressing domestic audiences.

After the ICJ verdict, Prime Minister Narendra Modi asked Pakistan to release Jadhav forthwith.  The demand, no doubt, echoes the wishes of all Indians. However, it was ill-timed as India had raised it in the ICJ without success.

Former Minister Arun Jaitley, who is perhaps the best legal mind in the Modi camp, pointed out in a blog that the ICJ ruling was based on the principle that consular access is a basic human right and a conviction based on violation of basic human rights of the accused is not acceptable.

One hopes this verdict will persuade the Modi government, which has been singling out human rights defenders for vexatious prosecution, inviting sharp criticism from the United Nations for gross violations of human rights, to be more mindful of the rights of the people, especially the minorities and the marginalised.

One also hopes the governments of India and Pakistan realise that the Jadhav issue involves the fate of an individual who is entitled to human rights.

Jadhav was tried by a Pakistan military court in secrecy.  He was denied the right to be defended by an attorney of his choice.

There is nothing in the public domain about the evidence the prosecution placed before the military court to substantiate the allegation that Jadhav was a spy and had aided terrorists in Pakistan’s Balochistan province.

Thus, there is no material before the public to satisfy themselves about the justness of the court proceedings. Jaitley noted that the ICJ has stressed that the proposed review of the trial must be an effective one. It specifically enjoined upon Pakistan to take “all measures to provide for effective review and reconsideration, including, if necessary, by enacting appropriate legislation.”

An effective review and reconsideration of the kind envisaged by the ICJ may well take a long time. Must India let Kulbhushan Jadhav rot in jail indefinitely while Pakistani authorities review and reconsider the case?

There are many instances of nationals of one country found in the other being hauled to courts and sent to jail for violation of some law. Often they rot there even after they have completed the jail term awarded by courts because the two governments have forgotten them.

All too often fishermen, carried away by winds or currents to the neighbouring country’s territorial waters, also land in jail and are forced to remain there for long periods as the governments take their own time to look into their cases.

India and Pakistan must take note of the gross violation of human rights this entails, and, as civilised nations, evolve mechanisms to reduce the hardship of their nationals who fall into evil circumstances.

Espionage cases, of curse, stand on a different footing.  But, then, spying is a fact of life and those caught in the process are also entitled to basic human rights, as the ICJ has just underlined.

The best course open in such cases is not that of law but that of diplomacy. Those who get caught should not be made hostages in political games meant to impress domestic supporters.