After two years into India’s case against Pakistan concerning Kulbhushan Jadhav’s sentencing by the Field General Court Martial (FGMC), was presented to the International Court of Justice (ICJ), the case seems to be drawing to a conclusion. The latest round of hearings was held from the 18th to the 21st of February. Both parties to the court, having belaboured their cases ad nauseam, expect a verdict to be announced without the need for further hearings. The decision, however, can take up to an indefinite period of time to be presented to the public, in line with the protocols of the ICJ. Kulbhushan Jadhav’s detention in Pakistan, charged for by the Pakistani state, is the first of its kind to be brought to the ICJ with relevance to the Article 36 of the Vienna Convention on Consular Relations (VCCR). In addition, contrary to mass reckoning owing much to nationalist rhetoric, the ICJ is not in effect an Appellate court and does not reserve the right to reverse the FGMC’s decision.
As Khawar Qureshi’s most recent closing address to the court would suggest, Pakistan maintains its focus on the espionage clause that it has built its case around. The notion is not without legal complications, all of which rest on ICJ to detangle. The ‘espionage exception’ propagated by Qureshi is an improvisation of the Article 36 of The VCCR. The article has been the premise of the argument presented by India to the court. It explicitly notes that foreign nationals, detained or imprisoned in the ‘receiving’ state shall have access to the ‘consular officers of the Sending State’ i.e. that state that the detained person can prove his identity from. Herein, lies the fix which in words of Khawar Qureshi is normatively part of a ‘studied ambiguity’ on part of states having their cases reviewed in the ICJ; the nature of which is on display over questions left unanswered by the Indian counsel over the ‘kidnapping clause’ that it accused the Pakistani state of having conducted.
Furthermore, Pakistan has maintained the precedence of the Bilateral Agreement signed between Pakistan and India in 2008 over the VCCR.
Considering that the Indian counsel has made sure to keep India’s focus on violation of The VCCR independent of the nature of Jadhav’s activities in either Iran or Pakistan; stating Yadhav’s innocence in the process only dilutes its case bringing back into focus Pakistan’s implied ‘espionage exception’ in a similar legal dynamic. It is important to note that Pakistan maintains that Jadhav was arrested in Balochistan, contrary to India’s claim that he was captured across the border in Iran. Khawar Qureshi has adamantly pointed out that India has not taken the matter up with Iran, in line once again with the notion of ‘studied ambiguity’. Iran though, has not been all too keen in getting involved in a legal dispute between India and Pakistan. The Iranian state has made its displeasure on being dragged into the dispute by Pakistan, known openly.
Furthermore, Pakistan has maintained the precedence of the Bilateral Agreement signed between Pakistan and India in 2008 over the VCCR. The agreement was brought back onto the fore when the Indian counsel stated, in the most recent round of hearings, that Pakistan ought to on merit and humanitarian grounds as the treaty implies, give Kulbhushan consular access. Khawar Qureshi’s rebuttal was focused on discerning the Articles V and VII that India presented as one. Pakistan, sticking to its primary recourse maintains that espionage-related activities and the personnel implicated thereof are not to be allowed consular access; defining clearly the Pakistani established merits of the case.
The Indian case is aimed at the ultimate reversal of FGMC’s sentencing of Kulbhushan Jadhav. The 2008 agreement between Pakistan and India provides little detail into how the merits of a case decided among two opposing parties to a conflict can be reconciled. Espionage-related cases which one can expect to prop up every now and then between Pakistan and India have no mention of in the agreement. This time around, it is Pakistan employing the use of ‘studied ambiguity’ to uphold Kulbhushan’s sentencing.
India, in an attempt, to bar a military court’s decision cited a ‘Military Law Experts’ report. The report was presented to discredit the use of military courts. Barrister Khawar Qureshi, citing the decision of the Peshawar High Court in October 2018 against military courts in Pakistan proclaimed the proper functioning of civilian courts, questioning the very premise of the Indian argument.
Ultimately, the ICJ’s recourse boils down to whether Pakistan is to provide Kulbhushan with consular access. Doing so will not reverse the sentence but will lay grounds for legal representation for Kulbhushan, on discretion of the Indian state.
The workings of the case and the details of the ICJ’s jurisdiction have gotten lost in popular exchanges of calumny among both countries. Ultimately, the ICJ’s recourse boils down to whether Pakistan is to provide Kulbhushan with consular access. Doing so will not reverse the sentence but will lay grounds for legal representation for Kulbhushan, on discretion of the Indian state. Since it is the first of its kind, a foreign national sentenced for espionage has no legal precedence. Hence, the ICJ is faced with an arduous task to distinguish facts from the rhetoric; more so since it is a dispute between Pakistan and India.
Any decision, independent of taking into consideration espionage charges against Kulbhushan would call for Pakistan providing him with consular access. Furthermore, the ICJ can ask the Pakistani state to review the decision, which even if done, would in all likeliness see the original decision being upheld.
