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Despite the partial victory for India at ICJ, Jadhav might not be coming back home anytime soon

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Sharat Sabharwal
Sharat SabharwalJul 24, 2019 | 15:02

Despite the partial victory for India at ICJ, Jadhav might not be coming back home anytime soon

The International Court of Justice raised some red flags about Pakistan’s violation of the Vienna Convention. Nevertheless, they allowed Jadhav to stay in Pakistan’s custody.

The International Court of Justice (ICJ) judgment in the Kulbhushan Jadhav case is a strong indictment of Pakistan’s blatant violation of Article 36 of the Vienna Convention on Consular Relations by, inter alia, denying India consular access to him and the right to arrange for his legal representation. The ICJ upheld the Indian case with the exception of the request to annul the Pakistan military court’s decision and direct release and repatriation of Jadhav to India.

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In the alternative, India had asked for annulment of the military court’s decision, fulfilment of Pakistan’s obligations under Article 36 of the Vienna Convention and a trial under ordinary law before civilian courts — after excluding Jadhav’s confession obtained under duress — in strict conformity with the provisions of the International Covenant on Civil and Political Rights, which mandates a fair and public hearing by an independent and impartial tribunal. The ICJ judgment was guided by the approach taken by it in 2004 in Mexico vs United States of America, a case with similar facts.

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Simply being human: Jadhav will at least get a fair trial and consular access. (Photo: India Today)

It directed Pakistan to provide, by means of its own choosing, effective review and reconsideration of the conviction and sentence of Jadhav to ensure that full weight is given to the implications of violation of the rights contained in Article 36 of Vienna Convention for the principles of a fair trial, the evidence and the right of defence of Jadhav. It ruled that the choice of means is not without qualification and, normally, the judicial process is suited to an effective review and reconsideration; thus hinting at exclusion of military courts or executive action.

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Finally, the ICJ directed that Pakistan shall take all measures for review and reconsideration including, if necessary, enacting appropriate legislation. Also, the ICJ decided to continue the stay of execution of Jadhav, granted vide its interim order of May 2017, as “an indispensable condition” for the review. The directions of the ICJ leave no doubt that the review and reconsideration by Pakistan would be open to scrutiny, either at India’s request or if and when Pakistan seeks lifting of the stay on execution in the event of its review process upholding the death sentence.

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No. You haven't won. Not by a long shot. (Photo: India Today)

The judgment, thus, places reasonable restrictions. Nothing short of an open trial in a civilian court, accompanied by full access of Indian consular officers to Jadhav and effectual legal representation of India’s choice is likely to meet the standards of the international court. Pakistan has decided to grant India consular access to Jadhav and its PM, Imran Khan, has said that they will proceed further as per law. The ICJ judgment, while ruling out Jadhav’s execution, leaves him in Pakistan’s custody. Differences between the two parties on the modalities of consular access, an adverse result of Pakistan’s review and fresh proceedings before the ICJ could prolong his captivity

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Safe for now: Given Pakistan’s poor financial and diplomatic state, it will not take any adventurist action against Jadhav. (Photo: Business Today)

Given the narrative built against him, Jadhav cannot get justice in Pakistan. The ICJ will not overrule the decision of a Pak court, so long as it is satisfied with the review process. We should, therefore, be prepared for a long haul, while continuing our efforts to secure an early release. Because of its precarious economic situation and scrutiny of the Financial Action Task Force, Pakistan appears to be entering a phase of tactical retreat vis-à-vis India. It may, therefore, eschew any adventurist action against Jadhav. However, having demonised him in the eyes of its public, Pakistan will not let him go. That can happen only as part of a thaw in the relationship and more substantive diplomatic engagement for its better management.

It is to be seen if the continuing mismatch between Pakistan’s tactical conciliatory moves from time to time and our expectation of a strategic shift in its posture towards us permits such a thaw.

(Courtesy of Mail Today

Last updated: July 24, 2019 | 15:02
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