The Kulbhushan Jadhav Judgement: Now what?

In a resounding victory for India in the Kulbhushan Jadhav case, the International Court of Justice has by an overwhelming majority of 15-1 ruled that Pakistan do an “effective review and reconsideration of conviction and sentence” of Jadhav, that it grant Indian official consular access to him, and directed “Pakistan to take all measures at its disposal to ensure that Mr. Jadhav is not executed pending the final decision in the present proceedings. The Court considers that a continued stay of execution constitutes an indispensable condition for the effective review and reconsideration of the conviction and sentence of Mr. Jadhav”.

Although the Pakistanis are claiming victory because the ICJ has not accepted the maximalist remedies sought by India, fact of the matter is that the submissions made by India seeking an annulment of the Pakistan military court sentence, and the release and return of Jadhav to India, were always a bit of a stretch as not only would these be unprecedented, they would also go beyond the jurisdiction of the ICJ. That is the reason why India added that if these remedies were not available, then the Court should ensure a retrial with full consular access to Jadhav and India be given the right to arrange for his legal representation. These were granted in the judgment handed down on July 17, 2019.

Many Pakistanis are crowing about the fact that the court has ruled that Pakistan can do the ‘review and reconsideration’ of the case ‘by means of its own choosing’, they gloss over the ICJ’s clearly pointing out that “respect for the principles of a fair trial is of cardinal importance in any review and reconsideration”. The operative phrase here being ‘fair trial’, which is simply not possible in a military court. Effectively, this means a retrial in an open court in which Jadhav will have proper legal representation and the Pakistanis will have to prove their charges on the basis of credible evidence. Merely unsubstantiated allegations and insinuations that were used to sentence Jadhav in a Kangaroo court run by the Khakis isn’t going to work in an open trial.

Although the very concept of a ‘fair trial’ is something of an oxymoron in Pakistan's notoriously compromised, pliable and scandal ridden judicial system, Pakistan will most likely have to go through the motions of complying with the ICJ judgment. Violating, ignoring or rejecting the judgment isn’t a realistic option for Pakistan. To do so would be to destroy whatever little remains of the country’s image in rest of the world. It is one thing for a hyper power like the US to defy an ICJ diktat, and quite another for a basket case like Pakistan to emulate the US. What is more, the world has become wise to Pakistan's shenanigans – with the FATF being a good example. An eyewash of a review and reconsideration process isn’t going to find any buyers, and will boomerang badly on a Pakistan struggling to stay afloat.

Although the very concept of a ‘fair trial’ is something of an oxymoron in Pakistan's notoriously compromised, pliable and scandal ridden judicial system, Pakistan will most likely have to go through the motions of complying with the ICJ judgment

The smart thing to do will be to go in for a retrial in either a civilian court or even an Anti-Terror Court. Pakistan can of course ‘court martial’ Jadhav, only that won’t be palatable for anyone. Nor will such a trial hold any credibility. Not that a trial in any other Pakistani court will be any more credible – the recent scandal involving the judge who sentenced Nawaz Sharif after being intimidated and blackmailed speaks volumes about the independence, impartiality and integrity of the Pakistani judiciary. Even so, (Pakistanis called them military courts), the fact that trial will be held in an open court and the quality of evidence and the due process will be closely monitored, this will be enough to expose the farcical case that the Pakistani state has built against Jadhav.

That the entire trial in the military court was a farce is borne out by the fact that if indeed the Pakistanis had a slam dunk case against Jadhav (something they never tire of claiming), then it made more sense to try him in an open court. On the strength of irrefutable evidence, and by following due process, Pakistan could have not only sentenced Jadhav for the ‘crimes’ he is alleged to have committed, but also laid bare India’s alleged involvement with the Baloch freedom fighters. But, because there was no credible evidence, the Pakistanis tried Jadhav in a military court which functioned behind closed doors. No one knows what evidence was presented against Jadhav; nor does anyone know whether the charges levelled against Jadhav were rebutted by his ‘defence’ counsel, presumably a serving or retired army official.

While there is little hope of Jadhav winning any kind of freedom from any Pakistani court, the simple fact of the matter is that his fate was never going to be decided, much less sealed, by the legal system of Pakistan. This is a case that will ultimately be decided outside the legal system. The Pakistanis have already milked Jadhav for whatever he was worth in the more than three years that he has been in custody. They have extracted every ounce of propaganda value that Jadhav had for them. They have flaunted his name in every conceivable international forum to paint India in lurid colours. But now the diminishing returns have set in. Today, Jadhav’s utility is more in using him as a bargaining chip, either for an old-fashioned exchange or even to make a grand gesture to India which could then kickstart an engagement process between the two countries.

The Pakistanis know that executing Jadhav isn’t really an option because the repercussions of such an act on the future of the already strained, virtually non-existent relations between India and Pakistan will effectively kill all prospects of engagement. Even if the ICJ judgment had gone in Pakistan's favour, carrying out the death sentence was never really on the table. After the adverse ICJ judgment, the possibility of executing Jadhav or incarcerating him for life has become practically non-existent.

The problem now isn’t so much about how to proceed further but more about how to start backing down from the hard positions both sides have taken. The hype surrounding this case has militated against the search for an optimal solution, one which both countries can live with and claim victory. The more the hype around this case, less the space for manoeuvre to find a solution. Somewhere down the line, both sides will work behind the scenes to strike a deal as a result of which Jadhav will come back home.

The more the hype around this case, less the space for manoeuvre to find a solution. Somewhere down the line, both sides will work behind the scenes to strike a deal as a result of which Jadhav will come back home

When such a deal happens, there will be a political price that will be paid, probably more in Pakistan which will have to release Jadhav and less in India where the government can spin Jadhav’s release to its advantage. Even so, in India, the government will have to back down from its principled stand of talks and terror not going together. On the Pakistan side, Imran Khan (assuming he is still the Prime Minister when the time for a deal comes, which could be a few months from now or an year or two away) will not be able to burnish his credentials or his cultivated image as the alpha male of Pakistani politics using Jadhav. In fact, he will open himself to attacks by the opposition who will administer him a taste of his own medicine by targeting him the same way he used to target Nawaz Sharif on the Jadhav issue.

Of course, since all politics in Pakistan ultimately flows from GHQ in Rawalpindi, a sort of level playing field could be created by the Khakis through ‘advising’ all politicians to not agitate too much over this issue. As for the Pakistani media, it will obediently fall in line once the military decides that releasing Jadhav is in Pakistan's supreme national interest. But all of this is probably quite some distance away. It will be months, maybe even a couple of more years, before Jadhav returns home.

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