In a big win for India, the International Court of Justice (ICJ) on Wednesday gave consular access to Kulbhushan Jadhav
The International Court of Justice (ICJ) order in the Kulbhushan Jadhav case came as a huge relief for India. The order has many points in favour of India but concerns remain about Jadhav’s security and life in Pakistan.
There are some areas of worry too. First, let us take a look at victories for India.
The biggest victory for India is the fact that Jadhav's death sentence remains suspended. The court, in its ruling by 15-1, declared "a continued stay of execution" on Jadhav, saying it "constitutes an indispensable condition for the effective review and reconsideration of the conviction and sentence" of the accused. The court had in May 2017 ordered a stay on Jadhav's execution till the final verdict in the case after India approached it against the Pakistani military court's award of death sentence in an opaque trial.
India's stand vindicated by ICJ: India had contended that by not allowing consular access to Jadhav, Pakistan has violated the 1963 Vienna Convention. The ICJ accepted India's stand and and agreed to entertain its plea. "The Court is of the view that Pakistan is under an obligation to cease those acts and to comply fully with its obligations under Article 36 of the Vienna Convention. Consequently, Pakistan must inform Mr. Jadhav without further delay of his rights under Article 36, paragraph 1 (b), and allow Indian consular officers to have access to him and to arrange for his legal representation," the ICJ said on Wednesday.
Pakistan asked to carry out effective review of the death sentence given to Jadhav: "The Court further finds that the appropriate reparation in this case consists in the obligation of the Islamic Republic of Pakistan to provide, by the means of its own choosing, effective review and reconsideration of the conviction and sentence of Jadhav, so as to ensure that full weight is given to the effect of the violation of the rights set forth in Article 36 of the Convention," the ICJ said in its order today.
Moreover, the entire judicial process of Pakistan was found inadequate in the case. The ICJ rejected the objections put forward by Pakistan to the admissibility of India's application. "The ICJ has ruled in favour of India on merits, affirming Jadhav's right to consular access and notification," Reema Omer, international legal advisor, South Asia, of the ICJ said on Twitter.
Lastly, India can again raise the matter with the court, if review by Pakistan is considered not to be effective.
But there are issues which do worry the Indian government:
Effective review of the case has been left to Pakistan to do by means of its own choosing. "Appropriate remedy is effective review and reconsideration of conviction and sentence of Mr. Jadhav - full weight to be given to the effect of violation of rights set forth in Article 36 - choice of means left to Pakistan - Pakistan to take all measures to provide for effective review and reconsideration, including, if necessary, by enacting appropriate legislation - continued stay of execution constitutes condition for effective review and reconsideration of conviction and sentence of Mr. Jadhav," the court said in its order.
Since courts in Pakistan are open to manipulation by the army, how much effective the review really be is anybody's guess.
Kulbhushan Jadhav's release has not been ordered: "With regard to India's contention that it is entitled to restitutio in integrum and its request to annul the decision of the military court and to restrain Pakistan from giving effect to the sentence or conviction, and its further request to direct Pakistan to take steps to annul the decision of the military court, to release Mr. Jadhav and to facilitate his safe passage to India, the Court reiterates that it is not the conviction and sentence of Mr. Jadhav which are to be regarded as a violation of Article 36 of the Vienna Convention. The Court also recalls that "[i]t is not to be presumed... that partial or total annulment of conviction or sentence provides the necessary and sole remedy" in cases of violations of Article 36 of the Vienna Convention. Thus, the Court finds that these submissions made by India cannot be upheld," the court said in its 42-page order.
What this means, worryingly, is that Jadhav remains vulnerable like Sarabjit who was killed inside the Kot Lakhpat prison.
And finally, the ICJ has also not asked assurance from Pakistan that no harm should come in the way of Kulbhushan Jadhav.