‘Review, Reconsider’ and Moving Forward

The International Court of Justice (ICJ) on July 17, 2019 declared its verdict on the Kulbhushan Jadhav case, ruling that Jadhav will be allowed consular access immediately and asked Pakistan to ensure “effective review and reconsideration of his conviction and sentences”.

A day after the decision of International Court of Justice (ICJ) in the Indian spy case, on Thursday Pakistan decided to grant consular access to Kulbhushan Jadhav.

The statement made by foreign office in which it said that the decision to allow consular access to Indian Naval Commander turned RAW agent was taken in line with the ICJ decision.

“Pursuant to the decision of the ICJ, Commander Kulbhushan Jadhav has been informed of his rights under Article 36, Paragraph 1(b) of the Vienna Convention on Consular Relations. As a responsible state, Pakistan will grant consular access to Commander Kulbhushan Jadhav according to Pakistani laws, for which modalities are being worked out,” stated by President of the ICJ Abdulqawi Ahmed Yusuf .

“The Court notes that the obligation to provide effective review and reconsideration can be carried out in various ways. The choice of means is left to Pakistan,” it added that, “Pakistan shall take all measures to provide for effective review and reconsideration, including, if necessary, by enacting appropriate legislation.”

If we see the verdict of this case is practically big victory for Pakistan because “It is reiterated that Indian Naval Commander Kulbhushan Jadhav entered Pakistan without a visa on authentic Indian Passport with a fake alias, Husain Mubarak Patel,” it proceed with.

“Commander Kulbhushan Jadhav is responsible for acts of sabotage, espionage and multiple terrorist incidents in which scores of innocent Pakistani citizens were killed, resulting into umpteen women being widowed and numerous children becoming orphans. Commander Kulbhushan Jadhav has confessed to all these acts during his trial in Pakistani court in front of a judicial magistrate. This is a clear case of Indian state terrorism.”

The final decision by the court was whether the 1963(1) Vienna Convention on Consular Relations (VCCR) applies in cases of espionage, as argued by Pakistan, and whether not provision of consular access to Jadhav can be viewed as a violation of Vienna Convention, as argued by India. However, following the bilateral agreement of 2008 between Pakistan and India, Pakistan made several disputations about the applicability of the Convention — which makes exceptions for access in cases of espionage — the court found that the agreement did not annul the Convention but was supplementary to it.

Pakistan, as an Accountable member of the international community upheld its commitment from the starting of the case by showing before the honorable court for the probationary measures hearing despite a very short notice.

The recent judgment of ICJ sparked a debate on which country could claim victory from it. India claimed triumph since the ICJ ruled that Pakistan had violated Article 36 of the Vienna Convention on Consular Relations (VCCR). Pakistan not agreed to accept the Indian victory as the military court’s judgment against Jadhav was not nullified and India’s remedies were not granted, which defeated India’s purpose for filing the case. As the months go on, and Yadav’s case is reviewed by Pakistan, it is unlikely that this debate about who won and who lost will be concluded yet it will continue to be had on television screens in both countries.

Yet perhaps that is not the question we should be asking. For Pakistan, it is more important to analyze what lies ahead. The case is not over. The ICJ has decided that Pakistan should provide “review and reconsideration” of Kulbhushan Jadhav case, this time following the proper international protocol of consular access. This means reviewing Yadav’s case while allowing the Indian government consular access. This would also mean more transparent system then there previous was. Moreover for all intentions and purposes, the Yadav’s episode has stared afresh – especially for the politics between the India-Pakistan.

Can such reconsideration become the starting point for improving the future dialogue? It is clear that the issue is bilateral one between India-Pakistan, now it’s up to Pakistani courts to adopt the same verdict again, or they can be more humane if they choose. Finally Jadhav case will be resolved with the consent of both nations. India has to decide – will they talk about real issue of Kashmir or- will the bilateral negotiation remain stuck in same way as before that case.

Jadhav case was important not only in the context of espionage, terrorism and the debate of whether there are exceptions in international consular law, but it also perform as a legal battlefield for the decades long -old Indian-Pakistani conflict. India’s decision to file a case before the ICJ, before opting for any of the conciliation procedures listed in the Optional Protocol, was antagonistic approach, intended to humiliate Pakistan. According to that context, India did not win in this case. Pakistan’s image and dignity of its legal system remain justified by the international court, which has trusted Pakistan to review and reconsider Kulbhushan Jadhav case effectively, keeping inviolate international standards of due process and consular access. Let us not discourage them. In short, Jadhav case and the ICJ judgment can redefine the contours of Pakistan and India’s relationship in the subcontinent if both nations look forward at this issue with a cool head.

Now it is time to take steps carefully because future of Pakistan-India relations will be determined by the engagement of both sides on the issue of consular access. The ICJ has announced on this matter, Islamabad and Delhi must move forward with maturity and avoid exaggeration which may cause impediment in the judicial process.

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