Article 36 of the Vienna Convention won the day. The 2008 bi-lateral agreement was set aside and does not supersede the rights of the ICJ to judge the case.
Pakistan errs in not offering consular access. Also, the ICJ finds it odd India should join the investigation against its own national to enable Pakistan to offer access.
It is a bit unfortunate that the ICJ does not have more teeth. It should have asked Pakistan for evidence of the whereabouts and condition of the captive Jadhav and at least put Pakistan further on the backfoot by calling for some visible assurance that he was alive and in good health. By not doing so it has allowed the liberty and rights of the individual to be compromised in secrecy.
India’s demands are plausible, says Judge Abraham, thereby underscoring the milky nature of the ICJ’s power.
Preserving the rights of the captive is a given and the court so declares but does intimate how these will be exercised.
We lose no ground over the time span given for the execution to be carried out. The court is not happy with the 150-day window and believes there is an urgency since Pakistan has given no assurance that it will follow these steps and the ICJ feels the rights claimed by India have merit.
The court has decided unanimously Pakistan shall take all measures to ensure that Jadhav is not executed until a final decision is made.
Until the court has given its final decision on the matter Pakistan will apprise the court of all developments.
While we have won the moral victory what makes us think that Pakistan will adhere to the spirit of the interim order. It can completely play ‘let’s pretend’ and then finally do nothing.
So long as the presence of Jadhav is unknown to the world at large it is difficult to gain any traction once the two parties go home.
All this still hinges on the appearance of Kulbhushan Jadhav so we know he is alive. You do not pay a ransom unless you get proof of life. We do not have that.
Pakistan lost every one of the six points in contention. But even if there is no ambiguity on the Indian admissions the crying fact is that there is no date set for the consular access and we have no idea where Jadhav is so our screaming of a victory only makes sense if we can bring light into the cell.
That has not yet happened.
Again, the world we live in is so brutal these days that the ICJ dealings with war crimes or espionage over an individual become a bit of a lightweight. Between genocide in Syria and the fighting in Iraq, the terror attacks around the world, the problems in Afghanistan, the cruel kidnappings and tribal conflicts in huge swathes of Africa, the tensions in Turkey and Ukraine and the rising damp in the Far East, the ICJ is well out of its depth with the issue of dirty deeds and cannot police the world. Nor does it have that fiat.
There is no argument that the Jadhav milestone will create a deeper schism between the two countries and the frost echoes the sentiment expressed by the US Director of National Intelligence Daniel Coats while addressing a Congressional hearing last week. He said, "Islamabad’s failure to curb support to anti-India militants and New Delhi’s growing intolerance of this policy, coupled with a perceived lack of progress in Pakistan’s investigations into the January 2016 Pathankot cross-border attack, set the stage for a deterioration of bilateral relations in 2016."
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Updated Date: May 18, 2017 16:49:19 IST