Few verdicts of the International Court of Justice have been awaited with such attention. Perhaps it was the rather Bollywood flavour to it all. A former naval officer caught in the hands of the enemy, forced into a confession, and then sentenced to death

by Tara Kartha

Months of waiting and a reprieve – not yet a release – from the International Court of Justice in all its dignity of hushed halls and robed judges. This is a sure fire hit if it ends well. But that not quite a surety yet.

Victory for India is apparent in that the court tick boxed all of India’s positions in the case. It decided that Pakistan had acted in violation of international norms of consular access; stayed his death sentence, and chose to ask for a free and fair trial – which also India had asked for in case the learned judges refused to allow repatriation. The Indian position was based on facts and the law.

Fact was that an a Jadhav Sudhir Kulbushan was arrested officially on 3 March 2016 — nearly three weeks after he was actually captured — tried under military law and sentenced to death without the benefit of his own defence or access to his Consulate. After shouting from the rooftops that he was an Indian spy, Pakistan chose to say that consular access was not given since he had a false passport, and therefore his nationality was unclear.

India never sought to dispute the fact that a false passport was an offence. The point was that first, such an offense did not call for a death sentence under Islamabad’s laws. Secondly, it was unclear whether Kulbhushan could be tried under Pakistani law at all. India quoted former Pakistani army officials to say that Jadhav had been kidnapped in Iran, and then rather smartly used Pakistan’s own case against it.

Pakistan had showcased articles in the India media including one by Chandan Nandy of ‘The Quint’ (retracted later) alleging that Jadhav was probably a spy. The same article however also quoted a Baloch leader as saying that Jadhav had been caught in Chaman in Balochistan rather than Saravan ( on the Iran-Pakistan border) as the FIR stated. In other words India did not attempt to make Jadhav’s innocence central to the case. What it did was to say that Pakistan did not follow the process established by international law nor the right to fair trial guaranteed by all states including Pakistan. That is why it won the case at the ICJ.

The case itself is not over yet by a long shot. The directive of the ICJ called for a review by Pakistani authorities in a ‘means of its own choosing’, but with the caveat that this review was to give ‘full weight’ to the finding that the prisoner’s rights under relevant articles of the Vienna Convention on Consular Relations had been violated, and that his fundamental right to a fair trial had also not been granted. That’s it. A Pakistani civilian court will now come into the picture, Jadhav will be given a defence counsel of his choice, and the Indian authorities will have full access to the prisoner.

But then comes the next vexing question.

The defence will now have to prove that Jadhav was in fact, kidnapped from Iran. In that case Tehran’s cooperation will be required to prove that he had indeed entered the country, even though using a false passport. Then comes the key question of what he was doing in Iran in the first place. It may be recalled that family members had said that Jadhav was running a business ferrying small cargo from Bandar Abbas to Chahbahar. The veracity of that can also be established by quite easily by Iranian authorities.

The possibility that Jadhav strayed into Baluchistan – if at all – is equally unsurprising. Anyone who has been to the area will testify that the border at Chahbahar is hugely porous as Baloch on both sides of the ‘border’ move in and out in conducting their various businesses. An Indian there would attract almost no attention, since there are plenty of workers from this country in that town. The only hiccup is that false passport. That has to be explained.

If the defence can prove that he was indeed in Iran, then Tehran could ask for custody to prosecute on the charge of a false passport. That’s as good as it gets.

If however the ‘kidnap’ theory doesn’t hold up in court, then a Pakistani court has every right to ask all the questions it likes on this issue; and the Pakistani military will now turn all its energy and resources – and it has plenty of both – in trying to prove Jadhav’s links with Baloch insurgents. The surprising aspect of the case is why it has not produced any such proof before the court so far. That is the only probable cause for hope, though the ISI could yet produce its own ‘evidence’.

There is also the fact that an appeal against the death sentence – rejected by the Pakistani Army Chief in 2017 – is somewhere about. The ICJ admits it has no knowledge of this, or the exact workings of the Pakistani justice system in reference to a military court’s decision. The world will soon find that out, if it cares to. Most will forget. This is going to take a while. They tried, convicted and awarded a death sentence in about six months. To free him may however take years.