Will moving ICJ on Jadhav really work?

The International Court of Justice at The Hague on Tuesday stayed the decision of the Pakistan military authorities to hang former Indian Navy officer Kulbhushan Jadhav, now in their custody, for alleged spying. India recently took the case to the ICJ to pre-empt Pakistan from acting if Islamabad really proposes to carry out the death sentence that was confirmed by the Pakistan Army at the highest level.

India has gone to the ICJ against Pakistan for the first time since 1971. Its case is strong. Pakistan has refused India consular access to Mr Jadhav despite 15 such formal requests, and hasn’t been given any of the case papers in the military trial of an Indian national. The denial of consular access is a breach of the Geneva Convention, to which Pakistan — like India — is a signatory. In light of these gaps, the trial has assumed the form of a kangaroo trial.

However, any hoopla about the ICJ directive to restrain Pakistan is premature. It’s far from certain Islamabad will indeed honour the ICJ’s decision. It can sidestep the ruling simply by arguing that the matter of Mr Jadhav is a domestic one as it involves a foreigner involved in spying and other criminal activities within Pakistan’s jurisdiction.

This is a bogus argument as Mr Jadhav was abducted from Iran, where he works as a businessman. But the hard fact is that he is in Pakistan’s custody. They can easily execute him and present the ICJ with a fait accompli. In that event the logic of the external affairs ministry, that the decision to move the ICJ was a “carefully considered” one, will fall flat on its face.

There was absolutely no reason for the MEA spokesman to put this on record for the media as it should be the case that all government decisions are “carefully considered”, not just this one. The impression that goes out is that the government is trying to score propaganda points as it finds itself caught in a bind.

Some have argued that Pakistan may be using the Jadhav death sentence as a leverage to extract concessions in the political field. This may well be true. However, nothing can be said with certainty for now. Possibly the only way to steer Pakistan in the direction of a mutual exchange or move for a quid pro quo is to present it with a dilemma similar to the one India has suffered in the Jadhav case.

It is debatable whether the move to go to the ICJ can serve our purpose. This internationalisation gives Islamabad the handle to cry itself hoarse on imaginary violations of human rights in Kashmir and rush to an international body with the plea for intervention.