DNA Edit: Pakistan stands exposed and isolated after ICJ stays Jadhav hanging

The provisional measures ordered by the International Court of Justice directing Pakistan to desist from executing Kulbhushan Jadhav pending the final orders of the court is a massive setback for our neighbour. India took the bold decision of going to the ICJ after weighing the pros and cons — disregarding concerns that Pakistan could reciprocate in kind by internationalising every dispute between the two countries.

The Jadhav case involved the abrogation of human rights of the individual and the sovereign rights that the Vienna Convention on Consular Relations accords to its signatory nations. Article 36(1) of the Vienna Convention states that “consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation”.

By denying Jadhav the opportunity to put up a strong defence through the offices of the Indian consulate, his life is at stake after a sham trial by a secretive military court established by Pakistan to try terror cases. It is well documented that India wrote to Pakistan 16 times seeking consular access to Jadhav, but was rebuffed each time with no rationale given for this obnoxious behaviour. The relief sought by India from the ICJ includes suspension of the death sentence, declaring the trial by the military court as violative of international law, directing Pakistan to annul the trial, and if Pakistan is unable to annul the decision then the ICJ should declare the decision as illegal.

It is important to note that the ICJ in Thursday’s order has not directed Pakistan to grant consular access to India. In that respect, it is a limited interim order. The real legal fight will begin now as the court evaluates Pakistan’s actions from the time it recorded Jadhav’s arrest. Pakistan will have to explain why it took this particular course of denying India consular access and trying him in a military court with draconian powers. At a strategic level, the Pakistan foreign office has hit back by claiming India is “hiding its real face” by approaching the ICJ. This is an implicit acceptance by Pakistan that it was outfoxed and the Jadhav judgment has proven to be a diplomatic and legal disaster. As for whose “real face” has been exposed, Pakistan must present its evidence to the ICJ.

After all, no less a person than its de-facto foreign minister Sartaj Aziz had raised doubts about the evidence against Jadhav last December. The possibility of tensions escalating at the border cannot be ruled out. Domestically, the Pakistan Army, rather than the civilian government, will find itself on the back foot after the ICJ judgment because it was prosecuting Jadhav. To deflect attention, the Pak Army will need to find scapegoats or embark on new misadventures. Pakistan will have a tough time explaining how its Army is a law unto itself.