There is tremendous relief in India that the International Court of Justice has stayed the execution of Kulbhushan Jadhav in Pakistan. In a 15-1 verdict in which only the Pakistani judge dissented, the ICJ upheld India’s plea that Pakistan had violated the Vienna Convention. The trial of the Indian accused of being a spy in a Pakistani military court was a sham, defying all international norms. The plea for consular access, denied unfairly, has also been accepted. It's a fair verdict that condemns the Pakistan military trial, while advising that country to review the trial process. But truth to tell, Jadhav remains in Pakistan custody and will be subject to its jurisprudence. What remains to be seen is how a miffed Pakistan reacts to an issue that questions the foundation of its legal system. The celebration of the reprieve is justified, but we may have to wait longer to see Jadhav’s return to India.
The real position is that the ICJ verdict appears to be procedural: Pakistan can easily address this in a retrial in a civil court, and perhaps still sentence Jadhav for his alleged role as a spy. The ICJ has not ruled on the merits of whether Jadhav is a spy and whether he can be the subject of en espionage/terrorism trial, which anyway was beyond the ICJ’s remit. The nuanced balance in the ruling is what has left room for near equal elation on the other side of the border too. It’s moot whether a miffed Pakistan, realising the real gravity of an international verdict against its legal processes and its military court trials, that allow no legal representations for the accused, is willing to allow a genuinely fair trial; on the available evidence, probably not.
The best way forward is to negotiate diplomatically with Pakistan. Of course, that country must be willing to accept any course of action short of India having to admit that Jadhav was spying in order to facilitate a prisoner swap. Pakistan may have learnt another lesson from the Jadhav case — in that its relationship with India is fraught because of its use of terror as a tool of state policy. However, a serious course correction may be seen in a chain of events in which Pakistan has had to bow to international opinion as in the UN designating Jaish-e-Mohammed chief Masood Azhar as an international terrorist and its most recent arrest of Jamaat-ud-Dawa chief Hafiz Saeed. Pakistan has also opened up its airspace after having kept it closed in the wake of the Balakot airstrike by India. The signs are somewhat positive for a resumption of the dialogue, in which the cruel case of Jadhav’s incarceration in an ISI facility in Rawalpindi can also form part of a gamut of issues hanging over the South Asian neighbours.
