Kulbhushan Jadhav verdict: ICJ's decision may take note of illusionary nature of Pakistan's 150-day relief claim

The first thing to consider about today’s verdict to be delivered by the International Court of Justice (ICJ) is that it is not going to be a verdict on the merits of the Kulbhushan Jadhav case. The ICJ is not going to rule on whether Jadhav is indeed a “terrorist” as Pakistan claims him to be, or whether he is an innocent Indian national caught in the web of India-Pakistan’s spy games. Therefore, Thursday’s verdict shall not be an indictment of Jadhav, nor shall it be an annulment of Pakistan’s military court’s decision to send the retired naval officer to the gallows. When President of the Court Ronny Abraham sits down to read the ICJ’s decision at the Hague-based Peace Palace on Thursday, he will essentially rule on whether prima facie India has a case at all before the court. In ICJ’s words, according to the media statement uploaded on its website it is going to pronounce its “Order on the request for the indication of provisional measures made by India in the Jadhav Case”. [caption id=“attachment_3455198” align=“alignleft” width=“380”] File photo of former Indian naval officer Kulbhushan Jadhav. PTI[/caption] India’s appeal to the ICJ, as clarified by its application to the United Nation’s judicial arm on 8 May, rests on: 1) relief by way of immediate suspension of the sentence of death awarded to the accused; 2) relief by way of restitution in interregnum by declaring that the sentence of the military court arrived at is violative of international law and the provisions of the Vienna Convention; 3) restraining Pakistan from giving effect to the sentence awarded by the military court and; 4) if Pakistan is unable to annul the decision, then this Court to declare the decision illegal." India has urged the ICJ not only to set aside Pakistan’s court’s sentence but also to ensure that Jadhav is not executed by Pakistan during the duration of ICJ’s trial proceedings.

It is the second point on which the ICJ is expected to deliver its judgement today. In so far the India’s appeal seeking annulment of the Pakistan kangaroo court’s order is concerned, that shall only be taken up once it is decided that the court indeed has prima facie basis for jurisdiction.

Pakistan has argued that the ICJ is powerless in this regard because the matter pertains to a bilateral treaty (2008 Consular Agreement) that contravenes provisions of the 1963 Vienna Convention. It has also argued that Jadhav is in “no imminent danger because he still has not exhausted all his legal remedies which gives him an accumulative 150 days of time.” India’s argument, put forward by senior counsel Harish Salve last Monday, was that the entire Pakistan state appears to be in collusion and there can be no real relief possible for Jadhav. In fact, India fears that the execution might take place before the trial is over. The 150-day relief period that Pakistan has put forward during the oral hearing, argued India in its 82-page application, is an “illusory remedy”: because all structures of the Pakistani state are subservient to the Army’s powers. “The death sentence stands confirmed by the chief of army staff. An appeal before a tribunal presided over by him or officers junior to him would be an appeal from Caesar to Caesar,” India had said in its application, referring to a Pakistani newspaper article where a Pakistani army spokesperson was quoted as saying that there is very little chance of the verdict being overturned. It is to be noted that at no stage of the hearing did Pakistan give any assurance that the 150-day deadline is sacrosanct. This is expected to strengthen India’s case and the court’s limited verdict today.