Last resort: India moved ICJ because of imminent threat to Jadhav's life

The Ministry of External Affairs says the Government of India carefully deliberated the idea to approach the International Court of Justice (ICJ) in The Hague, The Netherlands, on Pakistan's death sentence to Kulbhushan Jadhav.

The MEA says it decided to go ahead with this option because of the imminent threat to Jadhav's life, otherwise the ICJ is a no-go zone for all matters related to Pakistan, lest it give the neighbouring country an opening to take similar measures.

Expectedly, the move came as a surprise to sections of the diplomatic community, who believe that institutions like the ICJ have no say in bilateral matters between India and Pakistan.

The MEA, however, says the government has approached the ICJ on a specific matter pertaining to the violation of the Vienna Convention on Consular Access. The MEA, rubbished questions of Pakistan taking the same route in the future as 'hypothetical'.

Has ICJ stayed the execution?

After India moved the ICJ on 8 May, its president, Ronny Abraham, in a letter to the Pakistani government, called upon it to “act in such a way as will enable any order the court may make on this request to have its appropriate effect.”

This was in response to India's application that “in view of the extreme gravity and immediacy of the threat that authorities in Pakistan will execute an Indian citizen in violation of obligations Pakistan owes to India”, and that the court should deliver an order immediately, indicating provisional measures.

Asked if this meant a stay on Jadhav's execution, the MEA didn't give a direct answer, nor did it divulge the communication between the ICJ and India. It just said that the ICJ president had acted under Article 74(4) of the body's rules, which states: “Pending the meeting of the court, the president may call upon the parties to act in such a way as will enable any order the court may make on the request for provisional measures to have its appropriate effects.”

MEA spokesperson Gopal Baglay indicated that since the matter pertains to Article 74, the ICJ could convene soon, possibly as early as next week.

Pakistan, meanwhile, is expected to respond to the ICJ in the next two days, even as its defence minister Khwaja Mohammad Asif retorted by calling it a “diversionary tactic”.

Indian counsel explains the situation

While sections of the Pakistani press reported on how the ICJ's ruling may not be binding on the Pakistani government, Harish Salve, senior advocate representing India in the case, reportedly said that Pakistan was bound by the decisions of the ICJ in this case, since it pertained to a violation of the Vienna Convention on Consular Relations.

India invoked Article 36, paragraph 1, of the Statute of the ICJ, “by virtue of the operation of Article I of the Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes of 24 April 1963”, and moved an application under Article 41(1) of the Statute of the ICJ, which give it powers to indicate provisional measures pending final judgement. The application for immediate provisional measures cites how ICJ has jurisdiction “pursuant to Article 36 of the Vienna Convention on Consular Relations 1963” and Article 1 of the Optional Protocol to the VCCR concerning settlement of disputes.

In an interview to a news channel, Salve explained how the ICJ may not be the right forum to sort out normal bilateral issues or hitches on the trade front, but in this case, it had the right to adjudicate. Both India and Pakistan are signatories to the optional protocol to the Vienna Convention on the Compulsory Settlement of Disputes, which makes such disputes come under the compulsory jurisdiction of the ICJ. This would override the fact that the ICJ would have no jurisdicition in disputes between two present or former members of the Commonwealth, as is mentioned in the declaration when Swaran Singh, the then foreign minister, signed it in 1974.

“If you are party to any international covenant, you are under obligation to provide consular access,” Salve said, explaining how Pakistan's explanation that since Jadhav was tried under anti-terror laws, it was not bound to grant consular access.

India has made as many as 16 requests for consular access to Jadhav. All of them have been denied by the Pakistani government.

Interestingly, the Iranian consulate in Quetta, too, has written as many as three letters to the Pakistani authorities, seeking access to Jadhav for interrogation, since Pakistan claims he entered the country through Iran. India has maintained that Jadhav was abducted from the port town of Chabahar in Iranian Balochistan, where he ran his business.

Pakistan stays mum

Baglay said the decision to approach the ICJ was taken after recognising the threat to life of the former naval officer and businessman, who has been in Pakistan's custody for over a year now.

A secret military court had awarded him a death sentence recently, on charges of espionage and sabotage at the behest of R&AW, India's external intelligence agency. India says Jadhav was not given a fair trial and any move to execute him would just be a case of premeditated murder.

Pakistan also blocked access to the important documents on the proceedings in the military court.

Baglay explained how the Pakistani authorities have not provided any documents related to the Field General Court Marshal proceedings, which led to the death sentence.

Even the status of the appeal challenging the death sentence, moved by the Indian High Commission on behalf of Jadhav’s mother, is still not known. The Pakistani government has not responded to visa applications by members of the Jadhav family, who are keen to travel to take care of the legal proceedings.

External Affairs Minister Sushma Swaraj had earlier requested Sartaj Aziz, the powerful foreign affairs advisor, to grant visas to the family.

In the application for indication of provisional measures to the ICJ, the Indian government referred to the International Covenant on Civil and Political Rights, to which Pakistan is a signatory. Since the covenant declares every human has an inherent right to life protected by law and guarantees a fair trial, the application argues how, for an individual like Jadhav taken into detention in a foreign country, a fair trial is not possible without consular access.

Meanwhile, latest reports suggest that Pakistani Prime Minister Nawaz Sharif met with Army chief Qamar Javed Bajwa to discuss the issue. Experts say how the case pans out would also depend on how Pakistan responds in the ICJ.