The verdict of the International Court of Justice (ICJ) on Kulbhushan Jadhav
is a huge relief to India. Former External Affairs Minister Sushma Swaraj is right in congratulating Prime Minister Narendra Modi on his decisiveness in referring the case to the ICJ and praising the defence put up by the legal team, led by Harish Salve, to win Mr Jadhav a reprieve from the kangaroo-court style death sentence by a military court in Pakistan. But the widespread euphoria over the ruling should not overshadow the hard fact that the challenges for the Indian government in securing his release have just begun. In that context, External Affairs Minister S Jaishankar’s remarks in Parliament that Pakistan should immediately release Mr Jadhav may sound too optimistic.
The 15:1 ICJ ruling — the Pakistani judge being the only dissenter — concerns violating Article 36 of the Vienna Convention on diplomatic relations, under which Mr Jadhav should have been informed of his consular rights, and consular officials have the right to visit him in prison, custody, or detention, and to arrange for his legal representation. The Indian legal team’s principal contention was that Pakistan denied Mr Jadhav 13 requests for consular access between March 2016 (when he was arrested) and March 2017 (when his death sentence was pronounced). It is important to note that in ordering Pakistan to give Mr Jadhav consular access, the ICJ has not overturned the death penalty. It has merely ordered a stay on it till the Pakistan government provides “by the means of its own choosing, effective review and reconsideration of the conviction and sentence of Jadhav, so as to ensure that full weight was given to the effect of the violation of the rights set forth in Article 36 of the Convention”. Nor did the ICJ accede to India’s demands for Mr Jadhav’s release or trial by a civil court since that is outside its remit. That said, the ICJ ruling has admittedly made it difficult for Pakistan to re-impose the death sentence on Mr Jadhav.
If anything, the path to Mr Jadhav’s reprieve is more likely to lie in back-channel diplomacy between New Delhi and Islamabad rather than in Pakistan’s judicial system. To be sure, the details of the case are murky. The Pakistani authorities claim that Mr Jadhav, a former naval officer, was an Indian spy who had illegally entered Balochistan on a false passport. India contends that Mr Jadhav was arrested by Pakistani security agencies from Iran, where he was working after he retired. Between these contending positions is a gulf of mistrust and opacity implicit in spy cases the world over. But encouraging signs of an easing of India-Pakistan relations have emerged in the past few weeks: The successful talks on the Kartarpur Corridor, the reopening of Pakistan’s airspace, and the re-arrest of 26/11 mastermind and Jamat-ud-Dawwah chief Hafiz Saeed. Having won the first round, Mr Modi’s government must now display similar diplomatic nous in building on this thaw to bring Mr Jadhav home.