Daily Times

Expectedly, the ICJ’s verdict coming out on July 17 would offer both countries some leeway in the case.

The International Court of Justice (ICJ) is expected to pronounce its verdict in the case involving Indian spy Kulbhushan Jadhav, who has been sentenced to death by Pakistan. The court’s verdict would have broad implications for both India and Pakistan’s diplomacy.

On March 3, 2016, Jadav, an Indian Navy officer, was detained by the Pakistani security agencies in Balochistan province. Jadhav had illicitly crossed into Pakistan from Iran and was reportedly working with the Baloch militants across the border.

During the investigations, Jadhav admitted to spying for the Indian intelligence agencies. In 2017, he was sentenced to death by a Pakistani military court on the charges of espionage and terrorism.

Fearing the execution of its spy, India contacted the International Court of Justice (ICJ) in May 2017, against Pakistan’s decision for not allowing consular access to Jadhav.

At ICJ, India based its case on two broad issues.

India maintained that the breach of the Vienna Convention concerning the consular access had taken place in the case, and the process of the resolution was not followed according to the wishes of New Delhi, which was a party to the engagement. Broadly, India’s legal team argued that Jadhav was not an Indian spy but an Indian citizen as it urged the ICJ to cancel Jadhav’s death sentence and mandate his immediate release.

Pakistan’s main position at the ICJ was that Jadhav was an Indian spy sent to Balochistan to destabilise the country and therefore not “entitled to consular access.”

Moreover, Pakistan not only maintained that Jadhav was a part of India’s broader plot to destabilise Balochistan but also accused New Dehli of using ICJ as a “political theatre.”

On March 3, 2016, Jadav, an Indian Navy officer, was detained by the Pakistani security agencies in Balochistan province. Jadhav had illicitly crossed into Pakistan from Iran and was reportedly working with the Baloch militants across the border

It has urged the court to dismiss India’s case.

Credibly, Pakistan has been able to present ample evidence in the case that proved Jadhav’s mission. Thus, the role of the Indian intelligence agencies should not be a key hindrance when it comes to ICJ’s impartial decision in the case.

If ICJ were to follow the evidence presented by Pakistan, it is likely that the former would not ask Islamabad for the release of Jadhav. Rather, Pakistan’s tribunal verdict should form the major focus of the ICJ’s judgement.

However, the history of Pakistan and India’s cases at the ICJ shows that the court has remained hesitant from passing unilateral judgments. By and large, ICJ has maintained that disputes between the two countries should be resolved amongst themselves. During the previous hearings, there was a perceptible leaning towards playing the role of a conciliator rather than an authority making outright decisions. In 1999’s case filed by Pakistan concerning the aerial bombardment by India, ICJ concluded it did not have jurisdiction to deal with the application.

In Jadhav’s case, even though Pakistan has presented undeniable evidence that establishes he ran targeted operations to create unrest and instability in the country, ICJ is unlikely to completely dismiss the case.

Thus, an outright one-sided verdict doesn’t look like a working scenario. Expectedly, the verdict coming out on July 17 would offer both countries some leeway in the case.

It is understandable that if ICJ completely accepts Pakistan’s case and declares Jadhav a terrorist, the court would implicitly declare India a terror-sponsoring state. However, given the track record of the court’s interventions, it is unlikely to do so.

It is expected that the ICJ might ask Pakistan to not execute the death sentence of Jadhav. In fact, ICJ may catechise Islamabad to permit him the consular access. However, it is unlikely ICJ would ask for the release of Jadhav as it would undermine the legitimacy of Pakistani’s case. For Pakistan, any verdict that doesn’t support the country’s substantiated case at the forum is not going to be appreciated by Islamabad.

It is important to note that while ICJ’s decisions are binding, not all states have enforced the court’s rulings in the past. Recently, the US rejected an ICJ’s ruling on Iran; accusing that the multilateral body lacked jurisdiction. In this regard, New Delhi is unlikely to follow or accept ICJ’s verdict if it doesn’t support its view and might lure international support to influence the forum.

In this context, Jadhav’s case can take an interesting turn if India were to dispute the court’s ruling on July 17. Arguably, Jadhav’s case would be decided between India and Pakistan as it has become a political issue. Understandably, the dynamics of the case have more to do about the bilateral relationship rather than the international institution deciding the matter.

The writer is a lecturer of History at FC College, Lahore