No acquittal, but big relief for India

Sandeep Dikshit
Tribune News Service
New Delhi, July 17

The International Court of Justice’s verdict on the Kulbhushan Jadhav case was a partial victory for both sides with a tilt towards India, if the claims and submissions both sides are taken into consideration. But at the end of the day, a retrial and subsequent judgment by the Pakistan courts will again bring the case back to life.

At the ICJ, India won consular rights that it had pressed for and got Jadhav’s execution stayed. The ICJ also frowned on Pakistan failing to read Jadhav his rights and neither informing India immediately upon his arrest not permitting Indian officials to meet him. Pakistan has taken comfort in the fact that the ICJ did not acquit or release Jadhav, thus rejecting the main Indian prayer.

Though the ICJ found Pakistan guilty of breaching its obligations under the Vienna Convention, it did not grant the main relief sought by India of seeking Jadhav’s release and transfer to India as well as seeking a retrial by a civilian court.

Both countries had upped their stakes in the case as is evident that India had six diplomats at the court, including an Ambassador, an Additional Secretary and the Joint Secretary in charge of the Pakistan Desk. Pakistan, too, had pressed into service five diplomats, including an Ambassador and the Director General (South Asia).

The Indian side was helmed by Senior Advocate Harish Salve along with two Indian advocates, while Pakistan fielded its Attorney General besides a battery of local and foreign lawyers.

At the outset, the ICJ made it clear that Jadhav should have been given consular access because there is no reference to spies being excluded in the Vienna Convention. Pakistan had based its denial of access on the understanding that the convention precludes visiting rights to spies. Due to limitations of ICJ’s jurisdiction in such cases, it did not go through the evidence against Jadhav to determine his guilt or innocence.

The Indian plea stood on four pillars: (i) violation of Vienna Convention had rendered the sentence by the Pakistan military court infructuous; (ii) restoration to the original position; (iii) restrain Pakistan from convicting Jadhav, and (iv) trial before civilian courts after excluding Jadhav’s confession. Due to jurisdictional issues, the ICJ could only decide whether Pakistan had breached Article 36 of the Vienna Convention.