The ruling of the International Court of Justice (ICJ) on the Kulbhushan Jadhav case astounded sceptics in India and has rattled the body politic of Pakistan. It took courage for Prime Minister Narendra Modi to reject conventional wisdom and take up an issue involving relations with Pakistan in an international forum. Those ignorants, who voiced fears about Pakistan using this as a precedent to internationalise the issue of Jammu and Kashmir, seemed not to know that India had taken action to preclude ICJ intervention on territorial issues with Pakistan several years ago. On the other hand, both the countries had agreed to abide by the rulings of the ICJ on consular issues, involving detention and trial of each other’s nationals.
External Affairs Minister Sushma Swaraj and her team of diplomats implemented this policy decision with skill and dexterity. This was supplemented by invaluable legal advice from the law ministry, which was brilliantly refined and presented by Harish Salve. Pakistan was caught on the wrong foot. Matters were complicated by the fact that the all-powerful Pakistan army was too arrogant to keep the country’s ‘bloody civilians’, led by Prime Minister Nawaz Sharif, informed of the details of the trial. It is doubtful if the PM and his colleagues know all details pertaining to the arrest and trial of Jadhav even now. It is pertinent to note that though Jadhav was arrested in March 2016, Sharif’s Foreign Affairs Advisor Sartaj Aziz informed Pakistan’s Parliament nine months later, in December 2016, that there was no evidence to convict Jadhav.
The ICJ has rejected Pakistan’s arguments questioning its jurisdiction in the case and Islamabad’s contention that the 2008 Bilateral Consular Agreement with India took precedence over the Vienna Convention, on consular relations. The court ordered that Pakistan “shall take all measures at its disposal” to ensure that Jadhav is not executed, pending its final decision in these proceedings, and that Pakistan shall inform the court of all the measures taken on the implementation of its order. While India celebrated the interim court order, there was dismay and anger in Pakistan. The army disowned all responsibility for the humiliation of Pakistan, predictably passing the buck to the elected Nawaz Sharif government. It ignored the fact that the court order was a stinging indictment of its arbitrary actions, ranging from the ‘arrest’ of Jadhav to his farcical ‘confession’ and ‘trial’.
While changing his legal team, Sharif must realise that he is in no position to question or claim that the ICJ judgment was motivated or biased. The 12 judges, who gave the unanimous verdict, included a distinguished woman Judge Xue Hanqin, who hails from Pakistan’s “all weather friend”, the Peoples’ Republic of China. While India would ideally like an early final verdict on this issue, the history of past cases suggests that the ICJ will take time for a final decision on this case. All this is taking place when Sharif himself is facing investigations for the Panama Revelations (Panamagate) with regards to his personal and family wealth. Given the disunity and immaturity in the opposition—led by Imran Khan, who is regarded as a protégé of the army—Sharif could well win the Parliament elections next year, if he is not found guilty in the Supreme Court-directed inquiry.
A final word of caution is required. While a setback in the ICJ will weaken Sharif, it could also lead to the brash Army establishment contemplating some foolish course of action. The Pakistan Army has to be quietly advised that it will pay a high price if it chooses to defy the ICJ. The mood in India is for reconciliation with all. But, not at the cost of Indian lives, or the country’s honour and dignity.
G Parthasarathy
Former diplomat
dadpartha@gmail.com