ICJ verdict in Kulbhushan Jadhav case likely today: Judgment significant for India-Pakistan bilateral ties
As far as the Jadhav case is concerned, it will not be easy for the ICJ to pronounce the final ruling
The judgment carries significant weight as far as India's bilateral ties with Pakistan are concerned
The ICJ's rulings are obligatory, but its verdicts have not always been accepted by the member States
Pakistan's military courts had charged Jadhav with terrorism and espionage in 2017. He was sentenced to death in April that year
The wait has come to an end. The verdict in the Kulbushan Jadhav case is set to be announced by the International Court of Justice (ICJ) on Wednesday. The judgment carries significant weight as far as India's bilateral ties with Pakistan are concerned.
The ICJ's rulings are obligatory, but its verdicts have not always been accepted by the member States. Hence, irrespective of the court's decision, the resolution of the Jadhav case depends on the evolving dynamics of the India-Pakistan relationship. With a vulnerable economy, each passing day weakens Pakistan's bargaining position. Whatever be the ICJ's ruling on the Jadhav case, Pakistan can demonstrate its sincerity as far as improving ties with India is concerned, by ordering the release of Jadhav.
Pakistan's military courts had charged Jadhav with terrorism and espionage in 2017. He was sentenced to death in April that year, which was endorsed by Chief of Army Staff Qamar Bajwa. But Jadhav's execution was stayed after India approached the ICJ for mediation. India challenged the Pakistani court's ability to pass a judgment, maintaining that Pakistan violated the 1963 Vienna Convention on Consular Relations as Pakistan did not allow consular access to Jadhav. Pakistan countered India's allegations at ICJ regarding the relevance of the Vienna Convention. The primary argument of Pakistan is that since Jadhav is an Indian spy who illegally entered Pakistan, he was not entitled to receive consular access.
After much pressure and criticism, Pakistan, in December 2017, was forced to arrange a meeting between Jadhav and his mother and wife "in light of Islamic traditions and based on purely humanitarian grounds". India, however, criticised the manner in which Jadhav's two family members were treated in Islamabad. Despite multiple requests by New Delhi, Islamabad has been refusing consular access to Jadhav; Pakistan claims that India is desperate to extract information gathered by its "spy".
Jadhav is a former Indian naval officer. Islamabad claims that he was captured in Pakistan's Balochistan province in March 2016 in a counter-intelligence operation. India has denied that Jadhav had any linkages with India’s intelligence or security agencies after he retired from the navy. For India, Jadhav was kidnapped by Pakistan’s intelligence agents from Iranian territory, where he had legitimate business interests in Chabahar.
Iran has also been in a quandary over Jadhav's case. The disclosure about his arrest was made a day before the Iranian president's visit to Pakistan in March 2016. Pakistan's move was seen as an attempt to embarrass India which enjoys good relations with Iran. Pakistan’s interior ministry even wrote a letter asking the Iranian government to investigate and share details of Jadhav's activities in Iran, further writing that "Pakistan expects Iran to seriously look at Islamabad's assertions and take every step to stem incursion of Indian spies into Pakistani territory".
Early this year, Iranian foreign minister, Javad Zarif, had said, "We do not want Iran to become a theatre of animosity between our two friends — India and Pakistan. We will work with both sides to bring the region closer to peace and security." However, Jadhav's murky case is intimately connected with Pakistan's self-defeating obsession with India's presence in Afghanistan, as reflected in the discredited policy of "strategic depth". The logic behind the policy is that since India is the single most important security threat for Pakistan, it should instal a friendly regime in Kabul. And in case of a military confrontation between India and Pakistan, the so-called "strategic depth" would allow the Pakistan Army to retreat and regroup.
The upshot of this illogical and dangerous policy has been Pakistan's strategic fetish to ensure a government in Kabul that only serves Pakistan's interests. However, the policy has always meant subduing Afghanistan to such an extent that the country almost becomes Pakistan's colony. It also means opposing India's presence in Afghanistan, even for economic cooperation and infrastructure development, purely on geopolitical grounds.
Pakistan has always levelled allegations against India that it is supporting militant groups that are working against the Pakistani State. But the evidence for this claim has been both nonexistent and laughable. The very idea of India's 'alliance of convenience' with Pakistan-based militants is preposterous. Pakistan, which has frequently sought to fuel tensions and violence in Kashmir and other hotspots such as Punjab, accuses India of doing the same in Balochistan. Since India does not have a contiguous border with Balochistan, it is not easy for India to provide material support to Baloch insurgents by the sea route.
In order to deflect international censure for its state sponsorship of terrorism, Pakistan claims to fear that India is carrying out a tit-for-tat in Balochistan for Pakistan's "moral" support to Kashmiri separatists. That is why Pakistan has attempted to frame Jadhav's arrest from Balochistan against the backdrop of India's alleged support for the Baloch insurgency.
Pakistan's security establishment inflates fears and exaggerate India's potential to fuel Baloch separatism from Afghanistan. Ahead of a meeting between US president Donald Trump and Pakistan prime minister Imran Khan next week, Washington designated the Balochistan Liberation Army (BLA), which is fighting Pakistani forces, as a terrorist organisation. Since the US' role in Afghanistan-Pakistan region is not expected to reduce even after a costly deal with the Afghan Taliban, Islamabad will remain an important partner, if not a strategic ally, for Washington. For that, the US is keen to take the fractured relationship out of the shadows of mistrust. But Pakistan has tried to claim that the BLA's terror designation is its victory against India.
As the BLA has often been accused of staging attacks on Pakistan's military targets and the China-Pakistan Economic Corridor (CPEC) that passes through Balochistan, Pakistan finds it expedient to link the BLA with India. There are media reports of some BLA commanders visiting India for medical treatment. During the hearing of the case, Pakistan's attorney-general had argued before the 15-judge bench of the ICJ that Jadhav's "unlawful activities were directed at creating anarchy in Pakistan and particularly targeted the CPEC".
As far as the Jadhav case is concerned, it will not be easy for the ICJ to pronounce the final ruling. The history of legal battles between India and Pakistan at the ICJ clearly shows that the court has usually avoided passing judgments that could be seen as visibly undermining the interests and image of one country. If the ICJ decides to order the Pakistani government to release Jadhav, Islamabad is expected to obstruct this verdict as it would erode the basis of Pakistan's case. Besides, it will also have domestic implications for the Khan government that cannot afford to be seen giving in to India's demand. The ICJ is not expected to reach a conclusion that Jadhav is an Indian spy. Most likely, Pakistan will be asked to desist from carrying out the death sentence and start Jadhav's fresh trial in a 'civilian' court with full legal recourse, including consular access.
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