Kulbhushan saga and the ICJ judgement The Statesman 23 Jul 19
Kulbhushan saga and the ICJ judgement 23 Jul 19
A day after the International Court of Justice (ICJ) gave its verdict on the Kulbhushan Jadhav case, newspapers on both sides of the border presented victory for their own nation. The Pak newspaper Dawn’s headlines read, ‘ICJ rejects India’s plea for Jadhav’s return, grants counsellor access.’ Pak considered this a victory. Imran Khan also tweeted, ‘Appreciate ICJ’s decision not to acquit, release & return Commander Kulbhushan Jadhav to India. He is guilty of crimes against the people of Pakistan. Pakistan shall proceed further as per law.’
The Pakistan foreign office spokesperson, Dr Mohammad Faisal, who was present during the delivery of the judgement at The Hague commented to the press outside the court, ‘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.’ Their foreign office then stated that Pakistan would act as per its law on the subject. In all these actions, Pak ignored what the judgement truly meant.
India, on the other hand considered the judgement as a victory. Indian newspapers stated, ‘New Delhi won a legal and diplomatic victory over Islamabad after the ICJ ruled that Pakistan must review the death sentence.’ The Indian Prime Minister tweeted, ‘Truth and justice have prevailed. Congratulations to ICJ for a verdict based on extensive study of facts. I am sure Kulbhushan Jadhav will get justice.’
Pak based its success on ICJ not freeing Jadhav, thus stating it confirmed India was a state sponsor of terrorism. However, it ignored the fact that the ICJ is not a criminal court of appeal and hence could not consider that issue. Its focus was mainly determining whether there was a breach of international covenants and in this its findings were in India’s favour. India argued that Pak did not adhere to the Vienna Convention of Counsellor access, while Pak claimed it had no relevance. All Pak’s contentions were overruled.
As per the Dawn newspaper, the dissenting note of the Pak adhoc judge, Justice Jillani stated, ‘The accounts of three respected Indian journalists, Mr Karan Thapar, Mr Praveen Swami and Mr Chandan Nandy, based on interviews conducted with Indian officials, confirm that Mr Jadhav was a RAW agent.’ These articles, factually incorrect and against the stand of the government, left a bad taste amongst Indian masses as soon as they were published.
Pak refused to accept that the execution continues to remain on hold, whereas the judgement had clearly stated, ‘the stay on the execution constitutes an indispensable condition for the effective review and consideration of the conviction and sentence on Jadhav.’ Pak also ignored the ICJ reprimand on its systems when it stated, ‘it was under obligation to cease internationally wrongful acts of a continuing character.
The most ideal comments on the judgement came on twitter by an anonymous anti-Pak handle, Jungjoo Gernail. He stated, ‘Any person with basic comprehension skills would see Pakistan’s arguments and objections were literally shredded by ICJ. It insisted stay on execution, re-trial and counsellor access to India. It finally concludes Pakistan breached Vienna conventions.’
Pak has always twisted facts and history over the years. While its leadership was aware that all its arguments were discarded and the decisions were in favour of India, the same could not be projected to their masses. It had to be turned into their favour. Hence, their DG ISPR himself rushed to TV studios to give his version of the judgement which implied that the ICJ supported Pak’s view that Kulbhushan was sent to ferment the Baluchistan uprising. The version presented by him was victory for Pak. These actions by Pak were like those post the two strikes conducted by India, denial and twisting facts.
Within a military controlled Pak, where dissent is unacceptable and crushed with force, the common Pak national would have to accept twisted versions as presented by those who claim to be experts. No newspaper would dare publish any views contrary to those of the military, which has officially claimed victory in the judgement.
The important fact missed out by Pak in all its comments were that in all judgements the vote was 15 to 1, the lone dissenting voice being the Pak adhoc judge. Even China supported the Indian stand. Thus, Pak stood alone. It may be recalled that after the first hearing, the Pak government realised that its legal team was unprepared. The basic reason was because there was nothing as evidence, except forced confessions (which would not have been accepted in any way) and multiple passports. These itself proved that he was an Indian national, which they sought to disprove during the hearing as a reason for denying counsellor access.
For Pak, the arrest of Kulbhushan came as a blessing as it was facing the fifth Baluch uprising and losing soldiers daily. They had no means of throwing the blame to another nation, which was the only way to save face. His kidnapping and subsequent arrest announcement enabled them to blame all their failures in Baluchistan on Indian RAW and they continue to do so to date.
At the end of the day, the ICJ judgement gave Pakistan a saving face. It could have been harsher, but possibly the fact that the final hearing was held in the shadows of the Pulwama attack gave a decision which opened doors for both nations to seek an amicable solution.
Pak will act on the judgement at the earliest. It has no choice. It is aware that it lost and would never risk India going to the ICJ once again to embarrass it. Hence, it has already promised counsellor access. Imran may also use this opportunity to convince Trump that it is sincerely following international commitments. For India, it is now time to show its character as a powerful nation. It must move heaven and earth to bring its national back. It cannot continue letting its innocent citizens die in Pak prisons.
About the Author
Maj Gen Harsha Kakkar
Retired Major General Indian Army