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Kulbhushan Jadhav's death sentence stayed but Pakistan is under no compulsion to honour ICJ order

The International Court of Justice at The Hague may have asked the Pakistan government to stay the execution of alleged Indian spy Kulbhushan Jadhav, but Islamabad is not bound to honour it. If the Pakistan Army wants to go ahead with it, considering that the civilian government had little hold on the military court, it can do it with impunity. The UN in many ways is a toothless tiger. Whether it is the International Court of Justice (ICJ), the International Criminal Court or the Permanent Court of Arbitration, none can enforce its will on member states.

File photo of former Indian naval officer Kulbhushan Jadhav. PTI

File photo of former Indian naval officer Kulbhushan Jadhav. PTI

Not going by the ICJ ruling has not caused grief to any government, and there are scores of examples of national governments disregarding UN directives. Yes, because this is a case of a death sentence, which most democratic governments in Europe have abolished, there will be some noise. Apart from that, there will be no price to pay except perhaps condemnation for a death sentence. The UN Security Council becomes important when peace and security of the world are affected. In such cases, the five permanent members — US, China, Russia, UK and France — can order punitive action. Jadhav’s case is more a humanitarian issue than something that would immediately trigger a war between nuclear-armed India and Pakistan.

India has gone to the ICJ because Pakistan has turned down Delhi’s request for counsellor access sixteen times. Islamabad said that Jadhav is not an ordinary prisoner straying into Pakistan, but a spy charged with trying to cause death and destruction in the country.

Neither the civilian government nor the foreign office can dictate terms to the army. In fact, after the Panamagate revelations with charges of corruption against Nawaz Sharif and his family members, the prime minister’s position had weakened even further. Though there is no doubt the army will finally take a call on the matter, even if the civilian prime minister was on a strong wicket.

One thing going for India is the fact that it has invoked the Vienna Convention on Counsular Relations which mandates states that have signed the protocol to allow access to nationals of each other’s countries if a citizen is in jail. Though the ICJ has no means at its disposal to enforce its directive, the matter can be taken to the UNSC. There the Security Council members will decide on the case. In the case of Pakistan, China is certain to veto such a move. So unless the Pakistan Army for reasons of its own decides to withhold the death sentence, there is little other nations can do. Pakistan will certainly say that Jadhav’s case is one of espionage and Pakistan’s national security.

However, if India can persuade Pakistan’s friends like China to intervene perhaps things could have been better. The US too may be reluctant to do so. President Donald Trump is still finding his feet in the White House and may not be inclined to do much. At best international pressure can save Jadhav from execution but whether he can be freed is another matter altogether.

The major world powers have flouted UN resolutions whenever it did not like a ruling. The most recent example is that of China and the Philippines. The latter dragged China to the Permanent Court of Arbitration last year, over its sweeping claims of sovereignty in the South China Sea. The PAC ruled in favour of Philippines, as it too had historical claims to some portions of the waters. But China refused to abide by the PAC ruling. Many decades earlier in the 1980s, when the US was fighting the Left-wing rebels in Nicaragua, virtually its backyard, the government went to the ICJ to hear a case against the US mining its harbour. The ruling went in favour of Nicaragua and the US was asked to pay compensation. The US rejected the claim and said the court had no jurisdiction over it. Russia too had earlier rejected the ICJ ruling in another case.

Pakistan took India to the ICJ in 1999, when a Pakistani Breguet Atlantique patrol plane crossed into Indian air space in the Rann of Kutch. All the crew members were killed. The ICJ, however, ruled in favour of India.

The ICJ is not something that India favours, especially when it comes to dealing with Pakistan. However in this case, with Islamabad proving adamant and the fear of execution hanging in the air, Delhi had no other option. Delhi is generally loath to go to a third party in India-Pakistan matters, with Islamabad always trying for third party intervention on Kashmir. But in this case, there was perhaps no other option.

India is likely to work the diplomatic channels to put pressure on Pakistan to save Jadhav’s life. But with the Pakistan Army emboldened about China’s stand, especially after the China-Pakistan Economic Corridor bait, chances of the army relenting is not bright.

Updated Date: May 10, 2017 21:14 PM

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