The Big Story: Life and death
Prime Minister Narendra Modi’s government made a bold move in deciding to take the case of an Indian citizen, who is facing impending death at the hands of the Pakistan government, to an international forum. New Delhi moved a petition before the International Court of Justice arguing that Pakistan’s treatment of Kulbhushan Jadhav – who was labelled an Indian spy and then sentenced to death by Pakistani military authorities – violated a treaty that both countries are party to. The case will now come up before the Hague on May 15, when both India and Pakistan will be allowed to make their cases.
India has traditionally been hesitant to take its case against Pakistan to international forums. The last time it applied to the ICJ to intervene, asserting New Delhi’s right to ban Pakistani aircraft from using its airspace in 1971, it lost the case. In 1974, India submitted a list of circumstances under which it would not accept the jurisdiction of the ICJ, which includes references to fellow Commonwealth nations, effectively keeping disputes with Pakistan out of the ICJ’s purview.
Yet Jadhav’s case is more specific. India has pointed to Pakistan’s violation of the Vienna Convention on Consular Relations, which includes an option protocol giving the ICJ “compulsory jurisdiction” over disputes. Fortuitously, both India and Pakistan are party to the protocol. India claims Jadhav has been hauled up and given the death sentence in a sham trial and has demanded more than a dozen times that Pakistan provide consular access to him, but to no avail. This denial of consular access forms the base of India’s ICJ petition.
The reason the move is bold, and tricky, is two-fold. One, India’s reluctance to use multilateral forums comes from the worry that the same legal manoeuvers can be used against the country too. If India takes Pakistan to court, Pakistan could do the same on, say, New Delhi’s record in dealing with Kashmir. Though the Vienna Convention here puts India on solid ground, just turning up at a forum like the ICJ opens New Delhi up to other legal challenges.
Two, India is not guaranteed a victory. While the Vienna Convention is clear that governments must provide consular access, the question of jurisdiction might come in the way. A complex web of treaties, submissions and legalities governs whether the ICJ has jurisdiction in this case, and Pakistan is most likely to cite India’s own stance in the past as a way of preventing the ICJ from having any jurisdiction in the case.
Nevertheless, the matter on hand is one of life and death. India is taking the unusual step of going out of its way to prevent the execution of one of its citizens, who appears to have been given a death sentence under murky circumstances with little recourse to justice. New Delhi must be applauded for taking this bold move to prevent an unjust execution. It now needs to make sure it uses its time in court well.
The Big Scroll
- Explainer: The International Court of Justice may not be able to guarantee Jadhav’s life by itself.
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