Kulbhushan Jadhav was captured by Pakistan in 2016 and accused of being a spy fomenting trouble in Pakistan’s restive Balochistan province
ICJ on 18 May, 2017 had restrained Pakistan from executing Jadhav till the adjudication of the case
The International Court of Justice (ICJ) at the Hague, Netherlands is set to deliver its verdict in the Kulbhushan Jadhav case on Wednesday, and the development will be keenly watched for its implications on India-Pakistan relations. The President of the Court, Judge Abdulqawi Ahmed Yusuf will read out the verdict during a public sitting which will take place at 3 pm (6.30 pm IST). The verdict in the high-profile case comes nearly five months after a 15-member bench of ICJ led by Judge Yusuf had reserved its decision on February 21 after hearing oral submissions by India and Pakistan. The proceedings of the case took two years and two months to complete.
Jadhav was captured by Pakistan in 2016 and accused of being a spy, fomenting trouble in Pakistan’s restive Balochistan province. He was sentenced to death by a Pakistani military court in 2017 after a “farcical trial". India approached the ICJ in May 2017 against Pakistan for denying consular access to Jadhav.
The ICJ on 18 May, 2017 restrained Pakistan from executing Jadhav till the adjudication of the case. The ICJ's rulings are obligatory, but its verdicts have not always been accepted by member states. Ahead of the ruling, expected on Wedneday evening, Mint takes a look at some of the key aspects of the case and its implications on India-Pakistan ties.
Who is Kulbhushan Jadhav?
Kulbhushan Sudhir Jadhav, 48, is a former Indian navy officer. Pakistan says its security forces arrested Jadhav, an Indian Research and Analysis Wing operative, from restive Balochistan province on 3 March, 2016 after he reportedly entered the province from Iran. India contends Jadhav was kidnapped by Pakistani intelligence agents from Iran where he had gone because of his legitimate business interests in Chabahar after retiring from the Indian Navy.
New Delhi has denied that Jadhav had any links to India’s intelligence or security agencies after he retired from the Navy. Jadhav’s arrest was seen as timed to coincide with Iranian president Hassan Rouhani’s visit to Pakistan. Many analysts suggested that the aim was to embarrass India which enjoys good relations with Iran.
Pakistan’s interior ministry also reportedly wrote a letter to the Iranian government seeking an investigation into Jadhav's activities in Iran and urging Tehran to stem any incursions by Indian spies into Pakistan via Iran.
India’s case is built on the fact that Pakistan has consistently denied consular access to Jadhav, who was charged with terrorism and espionage in 2017. India says that Pakistan is in breach of Article 36(1) (b) of the Vienna Convention which obliges Pakistan to inform India of the arrest of an Indian national "without delay". Jadhav was purportedly "arrested" on 3 March 2016, and it was only on 25 March 2016 that the Foreign Secretary of Pakistan informed the Indian High Commissioner in Islamabad of this "arrest". Pakistan did not offer any explanation as to why it took over three weeks to inform the Indian High Commissioner as to the arrest of Jadhav. He was sentenced to death in April 2017, and Pakistan Chief of Army Staff Qamar Bajwa endorsed the sentence. India says that military courts – like the one that tried Jadhav -- were set up after 2015 as an instrument for the military to engage in summary trials. They are responsible for several death sentences after April 2017. In Jadhav’s case, India has pointed out that he was denied the right to be defended by a legal counsel of his choice. His conviction and death sentence is based on “confessions" taken in captivity. Jadhav's execution was stayed after India approached the ICJ for mediation. India challenged the Pakistani military court's ability to pass a judgment, stating that Islamabad had violated the 1963 Vienna Convention on Consular Relations as it did not allow consular access to Jadhav.
Pakistan countered India's charges saying that as an Indian spy, who entered Pakistan illegally, he was not entitled to receive consular access. In December 2017, Pakistan arranged a meeting between Jadhav and his mother and wife "in light of Islamic traditions and based on purely humanitarian grounds". India has sought overturning of Jadhav’s death sentence and his immediate release, saying the verdict failed to satisfy even the minimum standards of due process.
Pakistan has always accused India of supporting groups in Balochistan that were working against the State. This was seen as its counter to India’s accusations of Islamabad backing terrorism in Punjab and Kashmir. But till now, Islamabad has had little by way of evidence to back up its claims.
With Jadhav’s arrest, Pakistan has sought to project it as proof of India’s alleged hand in support for the Baloch insurgency. Earlier this month, Washington designated the Balochistan Liberation Army (BLA), which is fighting Pakistani forces, as a terrorist organisation. According to media reports, during the hearing of Jadhav’s case, Pakistan had argued before the 15-judge bench of the ICJ that Jadhav's "unlawful activities were directed at creating anarchy in Pakistan and particularly targeted the CPEC (China-Pakistan Economic Corridor) " that passes through Balochistan.
According to news reports, the history of legal battles between India and Pakistan at the ICJ clearly shows that the court has usually avoided passing judgments that could be construed as visibly undermining the interests and image of one country. If the ICJ decides to order Pakistan to release Jadhav, Islamabad is expected to obstruct this verdict as it would erode the basis of its case. Besides, it will also be a loss of face for Prime Minister Imran Khan’s government.
The ICJ is not expected to reach a conclusion that Jadhav is an Indian spy. The most likely scenario, analysts say, is that Pakistan will be asked to desist from carrying out the death sentence and start Jadhav's fresh trial in a 'civilian' court with consular access.
Should the ICJ seek a fresh trial for Jadhav in a civilian court it will be seen as a victory for India. If Pakistan agrees to hold another trial, it will be a major boost for New Delhi. It could also eventually set the stage for a India-Pakistan detente in future. On the other hand, since appeals and review petitions on ICJ verdicts are not allowed under any provision, Pakistan could submit a fresh petition on a new point for adjudication. This could complicate matters and set the stage for further confrontation between the two countries at the ICJ. Ties between the two countries have been at a low since the 14 February Pulwama attack and official talks have been at a stalled since 2013.