On May 8, when India filed a petition at the International Court of Justice seeking a provisional stay on former naval commander Kulbhushan Jadhav’s hanging, Pakistan was caught unprepared. Pakistan floundered in gathering up a convincing defence in the tight one week deadline it got before the ICJ heard the case, while India had all its ammunition ready.
Pakistan, which retired hurt, is now determined to return to the arena with knives sharpened. Sardar Ayaz Sadiq, speaker of the Pakistan National Assembly and chair of the Parliamentary Committee for National Security, told parliamentarians that they would defend their position “forcefully’’, and that this time, attorney general Ashtar Ausaf Ali, too, would be part of the legal team. With India on the offensive in the first battle, it had the advantage of surprise. In the war ahead, however, India will have to second guess Pakistan’s moves. The ball is now in Pakistan’s court.
Pakistan is still mulling over what its best options are. Legal experts and politicians in Pakistan might bicker among themselves over what went wrong at the ICJ, but the country is putting together a defence that should not be taken lightly by India, however strong its own legal team may be. The bickering is for media consumption and political posturing. Behind this curtain, though, a legal team is being put together to examine every point through which Pakistan can salvage or avenge the face it lost. Some feel that an unprepared Pakistan lost the opportunity to get an ad hoc judge to the 11-member jury which passed the order, while India had a judge, Dalveer Bhandari, on the bench. Pakistan now has the chance to select its ad hoc nominee for the case.
“Continuing ahead on the merits of the case will be India’s biggest challenge,’’ said Soli Sorabjee, former attorney general of India. Vinai Kumar Singh, deputy director of the Indian Society of International Law (ISIL), said since it was the violation of the Vienna Convention that triggered the ICJ jurisdiction, India’s safest bet lay in proving a continuous violation of the convention. So far, Pakistan has not provided consular access to Jadhav, saying that the ICJ order did not mention it. ICJ president Ronny Abraham said consular access should be provided even if a person was being tried for espionage or terrorism. The court order, though, did not give directions to Pakistan in this regard. Pakistani officials are making various excuses, from pointing out that they have not been asked to provide consular access to that they are considering the request. So far, the denial has strengthened India’s case.
Significantly, India has not made a fresh request for access, after getting no response to the previous 16 ones. Gopal Baglay, spokesperson for the ministry of external affairs, said the previous requests were not withdrawn and therefore if Pakistan wanted, it could provide consular access based on those requests.
But once Pakistan provides access, what would be India’s argument? The other strong point in India’s favour is a human rights issue, but both India and Pakistan can provide ample evidence of violating human rights.
“Once Pakistan submits a report on the actions taken as per the ICJ orders, we will have to find means to ensure that the case continues in the ICJ. This could be difficult because India has a declaration that within the Commonwealth, disputes should not be in the ICJ unless both parties agree. Since the strongest point in India’s favour is the flouting of the Vienna Convention, it will be a tightrope to ensure that beyond the violations, too, the case finds merit to be tried in the ICJ,’’ said Singh.
Sources in the MEA said India was looking at the matter step by step. The first step was to get a stay, in which it succeeded.
What scenarios could play out now? Pakistan can still argue on the jurisdiction of the ICJ over the case. It says Jadhav is a terrorist. Just in case it is able to convince the ICJ about this, how will India deal with the development? Iran has so far not given an official statement on whether Jadhav was in the Chabahar area when he was picked up. Getting Iran to give the statement will be a shot in the arm for India, but it will require much diplomatic skill. Iran needs Pakistan for its new oil economy and would not want to be seen taking sides. Pakistan claims that Jadhav was caught with two passports. If India can prove that the one in the Muslim name is fake and if there is no departure stamp from Iran on the “original’’ passport, Pakistan’s case weakens. “A lot depends on what moves Pakistan makes,’’ said Sorabjee.
While Harish Salve and his team get their arguments ready, India needs to strengthen its diplomatic outreach. “The most favourable order we can get from the ICJ is a complete quashing of the case under which Jadhav was tried,’’ said Sorabjee. “Pakistan will have to agree by the ICJ order. It will be in for a huge diplomatic disaster if it doesn’t.’’
But even in case of the most favourable judgment, there is the risk that Pakistan may not implement it. The ICJ does not have the authority to ensure that its order is implemented. It can, however, ask the United Nations Security Council to impose sanctions against Pakistan. “The UNSC will consider whether it is a procedural or a substantive matter. A procedural matter cannot be vetoed, a substantive one can be. But we have no control there,’’ said Singh.
“Do we have enough trustworthy friends in the UNSC?’’ asked E.M. Sudarsana Natchiappan, former Union minister and president of the ISIL. “Even if we feel we have Russia’s support, the United States is unpredictable. And, China is more Pakistan-friendly. We have further irked China by boycotting the One Belt One Road meet. This is not a time to celebrate a victory, we need to work hard at our diplomatic outreach. Even while the case is on, there are still ways we can work on the international community to ensure Pakistan steps down from its stand on Jadhav’s execution. By going to the ICJ, we may have opened the floodgates for bigger issues to be taken to this court. We need to be prepared for those eventualities, too. Now, more than at any other time, we need to work on our diplomacy.’’
While the big win would be getting Jadhav back to India, realists say that if India plays its cards well, it could at least succeed in getting the sentence reduced, through the ICJ or through diplomatic outreach.
