Kulbhushan Jadhav’s case is the tie-breaker Pakistan and India have been waiting for

Published: May 21, 2017
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Jadhav’s case has become the latest strain in tensions between the neighbouring nuclear-armed rivals.

The verdict of the top United Nations (UN) court ordering Pakistan not to execute Kulbhushan Jadhav until it makes a final judgment in the case, has stirred discontent and debate across Pakistan. Jadhav, who was arrested in March 2016, is a retired Indian naval officer who confessed to espionage and terror activities in Pakistan.

In a video that went viral, Jadhav confessed to have aided terrorist and separatist activities in Pakistan, particularly by fuelling insurgency in the province of Balochistan. He further exposed his country’s top intelligence agency’s role in funding activities with an aim to destabilise Pakistan.

Pakistan’s military court sentenced Jadhav to death last month on charges of espionage and terrorism. Following the sentence, India took the case to the International Court of Justice (ICJ), urging it to suspend Jadhav’s sentence. It argued that Pakistan violated the Vienna Convention on Consular Relations by denying Jadhav access to legal assistance. It told the court that Jadhav’s confession had been given under duress and that Pakistani agents had kidnapped him from Iran, where he was running business. Pakistani representatives, on the other hand, argued that Jadhav was denied consular access because the issue was one of national security and that the case was outside of ICJ’s jurisdiction.

But the court rejected Pakistan’s argument, ruling that it had the power to hear the case and ordered Pakistan to stay the execution of the Indian national convicted of spying. The last time India and Pakistan took a dispute to the ICJ was in 1999, when Islamabad protested against the downing of a Pakistani navy plane that killed 16 people. In that case, the tribunal decided it was not competent to rule in the dispute and closed the case.

The ICJ is the principle judicial organ of the UN. It was established in June 1945 to settle, in accordance with international law, legal disputes submitted to it by states. Though its decisions are final and binding, the ICJ has no means to enforce its rulings and have occasionally been ignored in the past. States are allowed to choose whether they want to be subject to the compulsory jurisdiction of the court by signing the optional clause (the clause that gives countries the option of agreeing or not agreeing in advance to be bound by the decision of the court).

Moreover, states are also able to revoke their commitments under the optional clause, as the US did in 1984, when Nicaragua asked the ICJ to determine whether the mining of Nicaraguan harbours by the Central Intelligence Agency (CIA) constituted a violation of international law.

Although Pakistan opted out of compulsory jurisdiction on certain matters in a declaration on March 29, 2017, it has not been successful in shielding itself from the ICJ jurisdiction. If Pakistan choses to dismiss the judgment as countries in the past did, the cost to the country’s tainted global reputation will be high.

This case, however, is no ordinary case and will prove challenging to adjudicate for ICJ. It is an issue inherently political and sensitive in nature with the potential of deciding the fate of future relations between the two countries. Both countries might exploit the case as an opportunity to communicate their grievances and animosities on an international platform. Moreover, the case will be a test for the court’s ideals of neutrality and merit. India, being a global economic and democratic success, is in a far stronger position to get its voice across effectively. Pakistan, on other hand, does not enjoy the credibility and power that India has earned over years. Given its negative global image tainted by the scourge of domestic terrorism, even with the strongest arguments, Pakistan will be at a disadvantage.

Jadhav’s case has become the latest strain in tensions between the neighbouring nuclear-armed rivals. It will deepen the rift unless both countries willingly cooperate for a transparent and fair resolution of the issue. Given the current state of mistrust and resentment on both sides, such an approach is unlikely. But Pakistan cannot afford more tensions at border as it is on the brink of implementing the historic China-Pakistan Economic Corridor (CPEC), seen by many as a game-changer. At the same time, it is an opportunity for India to show the political maturity and finesses that one would expect from a rising economic power.

Hamza Siddiq

Hamza Siddiq

The author holds a postgraduate degree in Anthropology and International Development from the London School of Economics & Political Science (LSE). He is currently a global development lecturer. He tweets as @hamzasiddiqkhan (twitter.com/hamzasiddiqkhan).

The views expressed by the writer and the reader comments do not necessarily reflect the views and policies of The Express Tribune.

  • mg

    If Pakistan was and is so confident in his guilt why didnt they have a public trial and invited the world to see. The reason? They had nothing against him. A banana republic and a banana trial by the banana courtRecommend

  • zoro

    It is an opportunity for India to show the political maturity and finesses that one would expect from a rising economic power…. very rosy …
    But at what cost for India ??….
    India has paid enough cost to attain peace with Pakistan … Results are shown for last 70 years … Pakistan has gone blind to show her power in the nuclear field …and the newly acquired Terrorist field ….
    Soooo… the repurcurations and retaliations will be equally dastardly …Recommend

  • wb

    “This case, however, is no ordinary case and will prove challenging to adjudicate for ICJ”

    Who told you so? Your establishment? It’s just an open and shut case, for either parties.

    All pakistan needs to do is provide concrete conclusive evidence that Kulbhushan is a terrorist or a spy. (First of all, decide which one)

    And all India needs to do is NOTHING and only question Pakistan’s evidence.

    The fact is, Pakistan has no evidence against this man except for a Michael-Bayesque edited forced confession.

    Once again Pakistan has axed its own feet!!!1Recommend

  • chakrs

    The writer is a rare creature — an unbiased, impartial Pakistani commentator. I appreciate this.

    If Kulbhushan Jadhav is released soon, in good shape, Pakistan could see some benefits in my opinion.Recommend

  • Rahul

    In which democracy are confessions extracted under duress evidence. You can torture an individual and make him say anything. Pakistan has no other evidence except this confession that he is a spy. Pakistan military establishment thinks the rest of the world cannot see what they are up to.Recommend

  • Rohan

    If you score more own goals than your opponent ,then you lose ,you don’t win.Just because it’s more goals doesn’t mean you winRecommend

  • Scrutator

    ” unless both countries willingly cooperate for a transparent and fair resolution of the issue” ????

    How is Kulbhushan’s so called secret trial by army generals ‘transparent and fair’ to start with??Recommend

  • Scrutator
  • Abhinav Parivesh

    This looks like a high school essay writing. Nothing new or insightfulRecommend

  • R Yegya Narayanan

    I appreciate the writer for being balanced and justifying his pedigree of having been a student of LSE. I wish he had also brought out the internal schism that Pakistan is facing between its civilian leadership and the military on how to take relationship with India forward. Other than its meddling in India’s internal affairs- read Kashmir- and encouraging cross border terrorism, India has no other major issue with Pakistan. First Pakistan should understand where it stands in the comity of nations. The latest incident at Riyadh where the Pakistan PM was not even invited to address- as highlighted by The Nation newspaper from your own country-at the Arab Islamic American summit shows the voice that Pakistan has got international even among Muslim nations, not to mention international arena. The Jadhav episode has only further eroded its credibility among the world leaders. The onus in solving the Jadhav issue is with Pakistan and not with India since any decision on the case will ultimately come from its government. The best opportunity for Pakistan to mend fences with India is when Mr Modi is at the helm because of his personal rapport with Mr Sharif and as he is now on a level that was enjoyed by Mrs Indra Gandhi, unquestioned and powerful within and outside government. But we see little indication of any change of heart among Pakistani establishment. If Pakistan takes any misstep it will only recoil on it and a more hawkish response, including watering down if not abrogation of Indus Water Treaty that will only bring greater misery to the ordinary Pakistanis, can be expected as the mood among Indians towards Pakistan is very negative now.Recommend

  • Sane

    Globally, terrorist and spies are tried in a way Kulbhoshan is tried. He is a terrorist, not just spy. He and his aides killed thousand of innocent people of Pakistan. He is Indian govt. sponsored terrorist.Recommend

  • KlingOn2K

    Jadhav’s case is the real “game changer”.Recommend

  • mg

    REALLY ? Where. Is that the way we tried that Paki Terrorist in Bombay…. Even all the spies in the US / West world have been tried in public when caught.. NOT in secrecy. In some cases when special courts are set up to try, even then most of the trials are for public viewing. Only countries such as the Middle east (incl Pakistan in that), China, North Korea, etc.. try it this way. If this Indian spy killed thousands of innocent people, they should produce a proof.. If not to us then to an independent inspectors / judges from anywhere around the world. Period.Recommend

  • Sane

    That Paki terrorist was not Pakistani. He was Indian agent and it proved. Pakistan never claimed he was Pakistani as you claim this Hindura terrorist your man.Recommend

  • Rex Minor

    Moreover, the case will be a test for the court’s ideals of neutrality and merit.

    faulty structures

    The author forgets that it is Pakistan which is on trial and not the court per se. Besides, Pakistan is the only democracy which permits military trials of the civilian folks both its own and foreign citizens. The author should pay attention to the faults in the democratic structures under te Sharifs authoritative rule which cannot be defended in International arena.

    Rex MinorRecommend

  • http://peddarowdy.wordpress.com/ Anoop

    Correction: Pakistan is a Banana Republic which conducted a sham trial by a Kangaroo court.

    I agree with the rest of your points. They don’t have didly squat. Their blood thirst got the better of them and made a mistake. India caught it and called their bluff.
    Now, both their Military will pin the failure at the ICJ on the Civilians. This should be fun to watch..Recommend

  • http://peddarowdy.wordpress.com/ Anoop

    Logic dictates one can only called someone spy and terrorist after proof is provided. If Pakistan calls him a spy or a terrorist, they need to provide proof, which has to stand the scrutiny of the court(ICJ).
    I am 100% sure that Pakistan doesn’t have the evidence which will pass the scrutiny of ICJ. Indian legal team will pluck many holes into the Pakistani arguments. If Pakistani military had such evidence, they would have opted for civilian courts.
    Your Army wanted to blame their mistakes on India and saw Jadhav as the scapegoat. Your army created Taliban and even made deals with TTP. Jadhav had nothing to do with all this. Proof for all this is in the public domain.Recommend

  • http://peddarowdy.wordpress.com/ Anoop

    In your esteemed opinion, was any Pakistani a Terrorist ever?
    Or, all Pakistanis accused and convicted of Terror in US, UK and India innocents or agents of some agency or the other?Recommend

  • http://peddarowdy.wordpress.com/ Anoop

    Tie breaker, not really, as ICJ is looking at and has jurisdiction to look into non-bilateral issues.
    But, this will be a source of embarrassment for Pakistan as it has to prove Jadhav is a spy/terrorist like its chargesheet supposedly claims(which it has failed to produce to India or ICJ). Any holes in the evidence, as death sentence requires very high quality of proof, India will win the case. This seems more likely..
    Will Pakistan comply to ICJ verdict? Or, will it sacrifice an entire country for one man?
    Mind you, if Pakistan rejects, it would create a precedent for all parties to declare Pakistan is a violator of ICJ verdict and Pakistan can never approach the ICJ over any issue. India will be all too happy if Pakistan doesn’t follow the ICJ verdict.Recommend

  • Ghazi Gul

    ” Jadhav confessed to have aided terrorist and separatist activities in Pakistan,
    particularly by fuelling insurgency in the province of Balochistan. He further exposed his country’s top intelligence agency’s role in funding activities with an aim to destabilise Pakistan. Pakistans military court sentenced Jadhav to death last month on charges of espionage and terrorism.”

    Given the quality of Pakistan’s leadership you can expect it to shoot it self in the foot again. A sovereign country would have hanged this enemy operative, a dangerous spy and agent provocateur, as soon as the verdict against him had come out in the military court. Well, do it now, like yesterday.Recommend

  • Sane

    hang this terrorist, a tout of India and Modi at Wagah Border who killed thousand of innocent citizen of Pakistan.Recommend

  • Rajiv

    Lies and propaganda of Pakistanis will not work.Recommend

  • Nana

    Extraordinary circumstances require extraordinary measures to tackle it. Trial under military court bill was approved by the parliament to bring to justice hard core criminals and terrorists. Remember the country is at war ( a complex,covert war where the agencies of all nature are working to checkmate us) for the last 30+ years. Extraordinary circumstances, don’t you think so? Recommend

  • vasan
  • Yogi Berra

    Pakistan should not score self goal by murdering Jadhav. Indian will badly punish Pakistan after that.Recommend