Daily Times

While announcing its judicious verdict on Kulbhushan Jadhav case on July 17, the International Court of Justice (ICJ) , maintained a balance between international law (in terms of the doctrine of morality vis-à-vis human rights-the Vienna Convention on Consular Relations (VCCR) and domestic law of the state whereby, domestic court decisions could have had a profound juris-generative effect on customary international law. Therefore, the World Court justifiably preserved or sustained Pakistan state’s right of the judicial trial of a spy or terrorist in terms of detention, conviction and sentence of the accused Jadhav. Yet, the Court asked Pakistan to undergo an effective review and reconsideration of the case, a right granted to the accused Jadhav under the International Convention on Civil and Political Rights (ICCPR). In this regard, the verdict reflects a semblance of justice.

Judge Abdulqawi Ahmed Yusuf , the President of the ICJ announced the verdict and observed The Hague-based World Court has had jurisdiction over the said case and India’s case was, therefore, admissible in the court. Though Pakistan had argued that Article 36 of the Vienna Convention on Consular Relations (VCCR) does not apply to people involved in criminal activities –espionage and terrorism, the Court inferred that there is nothing in Article 36, paragraph 1 of the VCCR that could limit its scope to the persons convicted of espionage and terrorism. The judge also observed that the conviction and sentence of the Indian spy Jadhav could not be regarded as violations of the Vienna Convention. “As regards India’s claim based on the Vienna Convention, the Court considers that it is not the conviction and sentence of Jadhav which are to be regarded as a violation of the provisions of the Vienna Convention,” read the verdict.

In its advisory rulings, or opinions , the ICJ applies the existing rules of international law with regard to international conventions, customary law, the jurisprudence, general principles of law, and the doctrine. The judgment remains profoundly significant since the Court discerned whether offences such as espionage and terrorism could bar the states of claiming the rights of the accused persons under the Vienna Convention on Consular Relations (VCCR, 1963). And yet consequently, the Court while granting the consular access to the accused Jadhav, did not turn out the status of detention and sentence of Jadhav under Pakistan’s National law as, since the completion of the review process, the present capital punishment of the accused Jadhav will remain temporally suspended.

In the given interplay of India-Pakistan geopolitical contestation, it remained a huge task for the Court to decide the case by upholding the principle of fiat justitia, ruatcaelum in a manner whereby no side—neither India nor Pakistan–couldn’t object to its verdict

Whilst giving its arguments via the doctrine of due process, India accused Pakistan of “egregious violations” under para 4 of the VCCR– in terms of the detention, trial and conviction of Indian national Kulbhushan Jadhav. Therefore, in response to India’s allegations, Pakistan had primarily argued: (i) The VCCR is not applicable to spies or terrorists due to the very inherent nature of the offences of espionage and terrorism; (ii) a bilateral agreement on consular access, signed by India and Pakistan in 2008, overrides the obligations under the VCCR; and (iii) reservations made under Article 36(2) of the ICJ Statute are also applicable in the case under Article 36(1) of the ICJ Statute.

Pakistan in her clean hands’ doctrine rejected India’s assertions. Pakistan rightly pointed to evidence collected from Commander Jadhav after his arrest and during the criminal process leading to his conviction as amply demonstrating his activities in orchestrating and fomenting terrorism and engaging in espionage activities within Pakistan. Pakistan also maintained that it would be incompatible with international law for someone sent as a spy/terrorist by a State to be granted access to officials of that State, as India unjustifiably asserts. Moreover, Pakistan pointed to the undeniable evidence that Commander Jadhav was provided with an authentic Indian passport in a cover Muslim name by the Indian authorities, which proved a malicious nexus between his conduct and the Government of India. Ad hoc judge, Justice Gilllani argued India’s rights abuse of the VCCR in his dissenting note. Justice Jillani’s argument justifiably covered the security risks justification vis-à-vis terrorism. The US did not provide consular access to the terrorists at the Guantanamo Bay detention centre.

Under the International Humanitarian Law (IHL), rights of communication of spies can be curbed due to the security risks they pose- the said argument is objectively pressed by the Pakistani authorities. By analogy, the same security risks exist in times of peace, especially if the concerned spy is engaged in funding, planning and supporting terrorism in a country. This is undoubtedly why Pakistan insisted on refusing consular access to Jadhav.

Technically, the ICJ did not recognise the bilateral agreement 2008, denying consular access to the spies, since it had not been endorsed by the UN. Pakistan also solicited that, had India duly cooperated on the issue of Jadhav’s fake identity, Pakistan would have timely provided the consular access to the accused. However, the Court observation on the consular access is tantamount to making an inference: the more serious the charge against the foreign national, the more urgent the obligation to notify the sending state and grant consular access. Though the ICJ’s view of the VCCR rights abuse largely belongs to the ”procedural grounds”, the ICCPR, somehow, provides the accused the right of the judicial review of the case. Nonetheless, in the given interplay of India-Pakistan geopolitical contestation, it remained a huge task for the Court to decide the case by upholding the principle of fiat justitia, ruatcaelum in a manner whereby no side—neither India nor Pakistan–couldn’t object to its verdict.

In my view, though the Court has objectively tried to posit its judgment based on the minimalist notion of justice-thereby advocating the ”thin justice” doctrine of international law, yet this appraisal is also undeniable that, The Hague- based World Court while exercising its legal perceptivity has, in ‘form”, established the efficacy of international law vis-à-vis the VCCR and the ICCPR; whereas in ”substance”, it has ensured the primacy and dignity of Pakistan’s national law–thereby maintaining a balance between ”international law legacy and domestic law regime.” In the given context, it is a veritable fact India has lost the case since a large part of its remedial prayer submitted to the ICJ remains unachieved because the ICJ rejected India’s plea for the ”annulment” of Jadhav’s ”conviction” and his ”repatriation” to India. Consequently, at the face-value of the case, Pakistan holds considerable moral and legal leverage over India.

The writer is an independent ‘IR’ researcher and international law analyst based in Pakistan