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Posted at: Jul 21, 2019, 6:55 AM; last updated: Jul 21, 2019, 7:55 AM (IST)

Diplomacy has work cut out to bring Jadhav back

The ICJ’s verdict has brought some respite. However, ahead lie the back channel persuasions and exchange of favours to achieve the endgame of getting the former Naval officer back
Diplomacy has work cut out to bring Jadhav back

Sandeep Dikshit

Once the dust settles, broken crockery often comes into view. The International Court of Justice (ICJ) vindicated India’s stand on consular access to jailed former naval officer Kulbhushan Jadhav, to whose name Pakistan routinely affixes “Commander” to imply that he had not hung up his boots when he was doing “business” in a forsaken part of Iran, as the Indian side claims.

But the judgment fell short of Indian expectations. The ICJ’s lack of jurisdiction prevented it from weighing in on Jadhav’s innocence or guilt. In that sense, the celebrations in Jadhav’s village and TV studios were premature. It still remains a mystery why a retired Class I government officer had opted for the sands and lawlessness of the Makran coast. The normal route taken by superannuated officers is the plush and well-governed parts of western Europe and the US, which is usually the preferred destination.

For, all that the ICJ has done is validate India’s complaint that its officials were not allowed to meet Jadhav, and that the man braved the military court without a legal counsel by his elbow. To ICJ’s credit, it has picked on this nuance to give a lifeline to Jadhav, or at least ensure that effective arguments from his side could help convert the death sentence into life imprisonment. Once this happens, politicians and diplomats can take over with their full bag of persuasion, concessions and exchange of favours to achieve the end game of getting Jadhav back.

That life jacket lies in the remedies set out by the ICJ. In the course of its three-point order of asking (i) Pakistan to immediately inform Jadhav of his rights; (ii) give Indian officials consular access to him and, (iii) permit him to arrange for his legal representation, the ICJ also felt the appropriate remedy for these Pakistani violations lie in an effective review and reconsideration of his sentence and conviction.

But military courts in Pakistan, set up after the massacre of schoolchildren in Peshawar, are a law unto themselves. India needs to be grateful to the miniscule Pakistani civil society (whose counterparts here are regularly vilified by the government’s cheerleaders) that has consistently stood up to oppose this lazy, easy and cruel method of crushing terrorism, along with legitimate dissent. As is the case with every law that is framed under populist pressure, the post-Peshawar courts have several chinks. Not only do these try civilians, these courts, each a Bench of just three with a Lt-Col as chief, went into high gear immediately after a split verdict by the Pakistan Supreme Court upheld their formation and hanged more than 300 “terrorists” in its first full year of formation in 2015, all of them with no legal specialist to give their version of their events. Currently, another 450 are on death row, along with Jadhav.

Jadhav will now have a legal representative unlike the unfortunate 450. But the most crucial aspect in the ICJ judgment is the advice to Pakistan to make changes in the law relating to military courts. And this is where the Indian diplomacy, its legal luminaries and political class will have their work cut out. For here, in the ICJ’s recommendation for a change of law, lies a glimmer of hope for commutation of Jadhav’s death sentence into life imprisonment (though India’s best case scenario is his release and repatriation but that could follow).

Despite constant and blanket vilification here, Pakistan on occasions has shown itself amenable to persuasion. There is an unmistakable thread of give-and-take in its relationship with the US in the 18-year Afghan war or in its dealings with neighbour Iran. PM Narendra Modi has often picked up the phone to cajole world leaders to become amenable to India’s wishes. That is how the Hafiz Saeed’s blacklisting by UN Security Council took place — a charm offensive led by the PM himself.

The Pakistan state has recently thrown several straws in the bilateral wind —the Kartarpur Corridor, relative quiet on the LoC and reopening its airspace. These seem to indicate its economic plight requires Pakistan to takes a long breather from its tactics of wrapping diplomacy with the gritty and, literally, explosive, tactics of fostering gunslingers to achieve its national interests.

The hard work of back channel persuasion and negotiation for some favourable changes in the functioning of military courts begins now. The temptation of another PR victory for the government ought to nudge it into rebuilding bridges with Pakistan to achieve the endgame of Jadhav back.

Previous cases in ICJ 

1. Vs Portugal, 1960 — Won

India filed the case for restricting Lisbon’s right of passage to Dadra and Nagar-Haveli (then under the Portugese occupation).

2. Vs Pakistan, 1971 — Draw

The ICJ asks India to contest case in the International Civil Aviation Organisation (ICAO) but rejects Pakistani contention that it had no jurisdiction to give such a direction.

3. Vs Pakistan, 1973 — Withdrawn

Pakistan objected to India arraigning 195 of its citizens for war crimes. Pakistan later said it had settled the case with India.

4. Vs Pakistan, 1999 — Won

The ICJ concedes India’s view that it had no jurisdiction in the case involving the Indian Air Force downing a Pakistani military reconnaissance plane killing 16.

5. Vs Republic of the Marshall Islands — Won

This was a class action suit against all nuclear powers. The ICJ conceded that it had no jurisdiction in this case.

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