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India’s more successful legal journey to the ICJ must now reshape New Delhi’s approach to potentially difficult situations
Kulbhushan Jadhav, the former Indian Navy officer, who was allegedly abducted by Pakistani intelligence from Iran and sentenced to death on charges of espionage and terrorism by a farcical military court in Pakistan, has been given a glimmer of hope by the ruling of the International Court of Justice (ICJ). Responding to a petition by India that sought an annulment of his death sentence because Pakistan had violated numerous international treaties and extracted irregular confessions under coercion, the ICJ, on July 17, 2019, ruled with a decisive vote (15-1) that Mr. Jadhav cannot be executed by Pakistan, and that he must be given adequate consular access and a fair trial. The ruling also urged Pakistan to review his conviction. This constitutes a major diplomatic and legal victory for India, with Pakistan accusing India of ‘ambushing’ it at The Hague. The legitimacy of military courts has always been controversial within the international legal system that emerged in the post-World War II era as a fast-track system of delivering skewed justice by authoritarian regimes and military dictatorships. Purportedly set up in Pakistan in 2015 as a counter-terrorist and anti-corruption initiative, Mr. Jadhav’s sentencing in April 2017 was based on confessions taken in captivity and is part of several arbitrary sentencings by Pakistan’s Military Court. India has shown both intent and resilience in attempting to secure the release of Mr. Jadhav despite the many hiccups along the way. Following a synergised approach steered by the National Security Adviser and the External Affairs Minister, India fought the kidnapping of Mr. Jadhav, an Indian national who was legitimately residing in Iran after retirement from the Indian Navy. Realising, in 2017, following his death sentence that the overall deteriorating relations between India and Pakistan had closed the door on any bilateral way of securing his release, India rightly chose to go the ‘international way’ by fielding a formidable legal team led by the jurist, Harish Salve. Sparing no efforts on the human aspects of the case too, India managed to get Mr. Jadhav to meet his mother and wife after the death sentence was pronounced. The first success achieved by the Indian legal team was on May 9, 2017 when the ICJ sent an urgent message to the Prime Minister of Pakistan, urging him to stay the execution till India’s case was heard fully and the ICJ arrived at a verdict. Moving slowly but surely through the legal battle for over two years, India, has been demonstrating significant synergy between various stakeholders in the case. The final verdict will, hopefully, galvanise the Indian establishment to step on the pedal and exert pressure on Pakistan to rescind the death sentence and allow Mr. Jadhav consular access and legitimate legal platform to mount his defence. While it would be wishful thinking to assume that Mr. Jadhav would return to India soon, there is a glimmer of hope on the horizon that the Indian strategic establishment would do well to exploit. Having deftly navigated the legal and diplomatic channels and restrained the Pakistan military by securing manoeuvring space following the ICJ verdict, a leading power such as India must demonstrate its intent and capacity to extract desirable outcomes out of potentially difficult, or seemingly impossible situations. Kulbhushan Jadhav’s case is one such challenge.
Arjun Subramaniam is a strategic commentator and Visiting Professor at Ashoka University
