Jingoism is not.

Jadhav justice and jurisdiction in a world court are important gains for India
Voices Opinion Friday, May 19, 2017 - 19:26

The International Court of Justice (ICJ) finding in favour of India on Thursday is a robust victory for New Delhi. It is the first time that India has mounted such a defence with speed unseen in the past. The coordination between various arms of the government led by the Ministry of External Affairs, the arguments put forward by India’s counsel Harish Salve and the embarrassment heaped on Pakistan are no small gains. All major wires have carried the story about the setback for Pakistan. In matters like these, it is critical that news travels far and wide because justice and rights between states have emerged as important planks in times of non-state actors cutting into diplomacy and related activities. In comparison, other United Nations (UN) discussions between Pakistan and India, have often received scant attention because they are seen as run of the mill. 

The ICJ, basing itself on the Vienna Convention also dismissed Pakistan’s jurisdictional objections finding that it has prima facie jurisdiction to indicate provisional measures. For someone who has covered this matter for over a decade from various international organisations, I found Pakistan's preparations remarkably shoddy, almost disrespectful of the world court. By the same token, I hope India will savour and strengthen its interim victory and not give in to jingoism fuelled from all sides. Endless television debates must end, as most 'experts' other than literally pointing fingers in an abject show of rudeness, bring little to advance India's case in the eyes of the international public. The Jadhav case must not become a pawn in a diplomatic battle between the world's largest democracy and a military dictatorship. 

The ICJ has ordered Pakistan to take all measures at its disposal to make sure Kulbhushan Jadhav – an Indian national convicted of espionage and sentenced with the death penalty in Pakistan – is not executed before the court delivers its final judgement. The current one is an interim pronouncement and the ICJ has also asked Pakistan to keep it informed of all measures that are taken for the implementation of its order. Pakistan has been stoutly slapped and isolated for now. At the time of writing, there is no word from Pakistan if it will abide by the ICJ’s ruling but word is that Islamabad is changing its legal team. India cannot influence what Pakistan does or doesn't do internally, but it can and must maintain the high moral and ethical ground and contribute to the building of international case law. 

The most important piece for now is the legal one and allows India to seek consular access to Yadav post-haste to ensure he is alive and well. Concerns are already being raised that may not be the case. Then there is the diplomatic lead and finally the politics. Indian diplomats are viewed as the world’s best, capable of taking on the world in form and content if their actions are backed from the top and leadership stays the course. It’s clear that External Affairs Minister (EAM) Sushma Swaraj was pivotal to the latest developments and Pakistan was caught off guard to see an unflinching New Delhi. Harish Salve put up a splendid defence and called for wholesome compliance with procedure and not the kind of cherry-picking Pakistan resorted to by mixing international laws and bilateral agreements. The next round will see a Pakistan much better prepared not because it has developed a sudden love for democracy but at least for now, it needs to do some face-saving. It is important to underline that Islamabad has no obligation to abide by anything the ICJ says. 

What are India’s options now?

Consular access and more consular access to suss out the state of play. The sum of India's request has been to release Jadhav. Experts The News Minute (TNM) has spoken to in Geneva - the home of Human Rights and a large legal fraternity - say New Delhi’s best option is to play for time. It is far from obvious that India can get Pakistan to reverse its decisions. They point to other cases where the ICJ has ordered a respondent country to review and reconsider a conviction by taking it through due judicial processes in its country under the Vienna Convention but are quick to add that a perfect process does not guarantee a reversal. The fact that the interim judgement was signed off unanimously by 15 judges shows the weight of India's arguments, but the road will get tougher from here onwards, they say. 

Pakistan has already said it will take the matter to the UN Security Council (UNSC) if it must for a vote. If it gets there, the matter will most likely be vetoed. But the time between now and that eventuality affords India tremendous opportunity to up the political and diplomatic ante to hammer home the point in all forums that its neighbour sponsors and exports terrorism, has extra-judicial killings and is capable of mocking the ICJ.

The world will draw its own conclusions based on realpolitik. The harder and possibly long drawn battle for India begins now. It has to be as dignified as the first one and we in the media have to lend a helping hand to stay on the straight and narrow, not succumb to any bombastic language and action that will only serve to enable Pakistan move out of the corner it has painted itself into. 

(Note: Opinions expressed are the personal views of the author.)

Become a TNM Member for just Rs 999!
You can also support us with a one-time payment.