Jadhav case: Return to India will need more than ICJ's verdict

Manoj Joshi *

There are two aspects of the judgement of the International Court of Justice in the Kulbhushan Jadhav case. One is legal, the other political. Despite all the legalese that goes with an ICJ judgement, Pakistan can completely ignore the verdict if it wants. As is well known, there is no way to enforce international law, except through the UN Security Council, and that too, on matters relating to peace and security.

But it can do so only at the peril of its own reputation. And, it has to reconcile the fact that it has actually participated in the proceedings till now. Had it ignored the hearing, it would have been one thing, but to have put up a case and lost, and then ignore the verdict will be a black mark with wider repercussions.

Tough for Pak Army to Flout ICJ Verdict

Not that people expect the Pakistan Army, which holds Jadhav, to bother about niceties, considering that it has long sponsored groups that conduct terrorist attacks in neighbouring countries. Since Jadhav is in their custody, he can probably be executed at any time of their choosing.

But even the Pakistan Army has to think carefully if it wants to wilfully flout an ICJ judgement, since it is a creation of the United Nations. It's one thing for the big powers like the US or China to flout international courts' judgements and quite another for smaller countries like Pakistan.

Then, there is the matter of enforcement and this can only be done by the UNSC, where it is open to veto by one of the Permanent Five. In this case, it is more than likely that the UNSC will simply refuse to take up a matter which does not involve a threat to international peace and security, and only relates to an individual.

Legal mis-handling :

Pakistan's legal handling of the case has been shoddy, considering that Jadhav has been tried by a military court martial, rather than a civilian court, and that too, in camera, rather than in public where he could have shown to have been defended and the evidence against him clearly laid out.

Military courts operate in an entirely different system and their evidentiary rules are questionable at the best of times. Perhaps all that Pakistan has is the confession he has made. Everyone knows that in custody you can get anyone to confess anything, especially in South Asia where torture is prevalent. That does not necessarily mean that Jadhav is innocent of all the charges against him.

It is entirely possible that he was involved in an intelligence mission of some sorts. The fact that he had a passport made in the name of Mubarik Hussain Patel is something that has not been explained by anyone. No one has so far said that the passport was fake.

However, Pakistan has not provided any evidence that he was indeed arrested on Pakistani soil and involved in subversion and terrorism. If he was working in Chah Bahar and was doing something prejudicial to Pakistan, the matter could have been taken up with Iran which has given him a residence visa.

Fate of Jadhav :

On the other hand, since the dhow that he owned has vanished with its crew, it is possible that he was in fact kidnapped on the high seas, which makes Pakistan guilty of an international crime. All this would, of course, become clearer if Islamabad or Rawalpindi, to be precise, were to permit consular access to him. But that is what they have studiously avoided, hence arousing suspicions over the circumstances of his arrest.

What the court has essentially said on Wednesday is that pending a full hearing on the issue, Pakistan should not execute him. Pakistan has two options – one to go the whole hog and present its case, and whatever evidence it has on Jadhav's alleged role in terrorist activities. On the other hand, it is quite possible that it is unable to come up with any kind of a case that will meet public, leave alone, judicial scrutiny.

Return to India won't be easy :

Now, if Pakistan continues to participate in the hearings, it is almost certain that the court will ask Islamabad to give India consular access to him. If so, some of the details of the story may become clearer. If these are likely to significantly undermine the case that has been made against Kulbhushan till now, Pakistan is bound to refuse access and simply walk away from the hearings and not accept any verdict that emerges and weather the inevitable reputational damage.

It should be clear that even if the court has given some relief to India, and Pakistan stays the execution for the pendency of the hearing, Kulbhushan's return home will not be easy. That will require more than the ICJ's verdicts.

It would need direct, back-channel negotiation, and some kind of give and take. New Delhi cannot possibly be unaware of this. Presumably, the ICJ effort is just the first step in a more complex set of moves that New Delhi has in mind to get Kulbhushan Jadhav home, safe and sound.