The Telegraph
Friday , May 19 , 2017

Tougher battle ahead for Jadhav release

Presiding judge Ronny Abraham of France reads the verdict in the Jadhav case in The Hague. (AP)

New Delhi, May 18: The International Court of Justice today barred Pakistan from executing former Indian naval officer Kulbhushan Jadhav while it hears a dispute between the neighbours, marking a diplomatic win for New Delhi that could also set a global precedent.

But the success of India's diplomats and lawyers at The Hague was tempered by mixed signals from Pakistan on its plans, and by New Delhi's challenge in convincing the court to take a step it never has before by undoing Jadhav's conviction and setting him free.

The 15-judge court passed "provisional measures" India had requested, asking Pakistan to ensure Jadhav is not executed till it arrives at a final judgment in the case where New Delhi has accused Islamabad of violating the Vienna Convention on consular relations.

The court ruled today it had "prima facie jurisdiction" in the case, that India's claim of its rights being violated by the denial of consular access to Jadhav appeared "plausible", and that the need for a stay was "urgent".

Pakistan had cited a series of interconnected commitments both neighbours have made to the ICJ - a 2008 bilateral pact and a Cold War-era precedent on consular access for alleged spies - to claim the court did not have jurisdiction. And it cited a 150-day period from the March conviction by a military court, till August, for Jadhav to appeal and, if necessary, seek clemency.

But the court broke with the Cold War-era norm - under which the Vienna Convention on consular access was normally not applied to alleged spies - setting a precedent. Its President Ronny Abraham indicated that Pakistan should have granted consular access to Jadhav, sparking contrasting reactions in New Delhi and Islamabad.

"This is the essential first step towards correcting the illegal actions of Pakistan in this case, and it has brought us huge relief," foreign ministry spokesperson Gopal Baglay said. "We will leave no stone unturned to try and save Kulbhushan Jadhav."

Baglay's Pakistan counterpart Nafees Zakaria, however, said Islamabad would contest before the ICJ the international court's jurisdiction on "matters of national security".

Pakistan attorney-general Ashtar Ausaf Ali indicated in a statement that Islamabad would stick to its commitment before the ICJ on Monday that Jadhav would have the opportunity of an appeal and a plea for clemency.

Islamabad has so far not told New Delhi if Jadhav has filed an appeal - his mother has registered one on his behalf through the Indian high commission. But Pakistan is expected to demonstrate that it allowed an appeal to bolster its case before the ICJ.

What remains unclear is Pakistan's plan after August if Jadhav's appeal and clemency plea are rejected, and if the ICJ is yet to deliver a final verdict. The provisional measures today suggest the ICJ does not expect to decide on a verdict by August - since Pakistan had effectively promised Jadhav would not be executed till then.

The only country that has been in Pakistan's place in front of the ICJ till now, is the US, which has thrice faced cases at The Hague - from Germany, Paraguay and Mexico - over allegations of denying foreign nationals on death row consular access during their trials.

But in two of those cases - involving Germany in 1999 and Paraguay in 1998 - the US went ahead with the executions, despite identical ICJ "provisional measures" barring it from killing the convicts to the ones issued by the international court today. In each of those two cases, the US argued that the convicts had been given full recourse to appeals and that the ICJ's preliminary measures were not binding on the country.

The ICJ held the US guilty in all three cases - but let Washington go with reprimands. And its final judgment in the Mexico case - the only one where the convicts were still alive at the time - allowed the US to pick its mechanism of reviewing the convictions.

"The United States of America shall provide, by means of its own choosing, review and reconsideration of the conviction and sentence, so as to allow full weight to be given to the violation of the rights set forth in the (Vienna) Convention," the ICJ had ruled on March 31, 2004.

The ICJ would need to set a significantly higher bar, legal experts said, if it accepts India's demands to annul the sentence against Jadhav, set aside his conviction and order him released.

Instead, if India wins the case and the ICJ does choose to go beyond its previous judgments, it may demand a retrial in Pakistan, they suggested. In that scenario, Jadhav would continue to live - at least till the fresh trial takes place - with a renewed appeals process. This time, Indian officials argued, he would likely have consular access and so would have better legal defence.

But he may still eventually be convicted - India has made clear it does not trust Pakistan's legal system.

That's part of the reason countries usually swap or strike deals involving alleged spies, and why some legal experts were unsure about the benefits of approaching the ICJ.

"I'm not convinced this (India going to the ICJ) is necessarily a great move," Narinder Singh, former President of the UN's International Law Commission and the head of the legal and treaties division of India's foreign ministry from 2002 to 2012, had told The Telegraph on May 10, after India had moved the international court.

But other officials indicated that Pakistan's refusal to allow consular access to Jadhav so far had indicated an unwillingness to negotiate any deal for his release. By publicly parading Jadhav and accusing him of sponsoring terrorism, Pakistan had left India with no choice but to insist on his innocence.

That's why, these officials said, India began preparing for a diplomatic and legal battle with Pakistan, not just to save Jadhav but also to negate allegations that New Delhi - which calls itself a victim of terrorism - was in any way involved in terror incidents abroad.

Congratulating her team for its "tireless efforts and hard work", foreign minister Sushma Swaraj said this evening that the ICJ order had come as a "great relief to the family of Kulbhushan Jadhav and the people of India".

But the journey to get Jadhav back, experts have cautioned, could prove tougher.

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