Jadhav Case: MEA Bureaucrats Didn’t Want ICJ But Legal Opinion Won

Exclusive: Veterans in the MEA had said that taking Kulbhushan Jadhav’s case to ICJ will play into Pakistan’s hands.

(This piece has been republished from The Quint’s archives in light of the author, Hardeep Singh Puri, being inducted as a minister in Prime Minister Modi’s cabinet on 3 September, 2017. It was originally published on 28 September, 2016.)

There was understandable relief when the International Court of Justice (ICJ), the principal organ of the United Nations, on 18 May, announced provisional measures in the Kulbhushan Jadhav case (India vs Pakistan).

The decision validates, at the very least, that the Government of India’s decision to approach the ICJ was a carefully considered one. It not only provides the relief India was seeking but could, if handled properly, have other long-term positive effects.

Also Read: Jadhav Case: Return to India Will Need More Than ICJ’s Verdict

What Does the ICJ Verdict Mean for Pakistan?

But first, an analysis of the provisional measures announced. This becomes necessary before an assessment is made of the overall state of play and the further steps that may be required.

1) The Islamic Republic of Pakistan must “take all measures at its disposal” to ensure that Mr Kulbhushan Sudhir Jadhav, of Indian nationality is not executed pending a final judgement of the ICJ in this case.

2) Pakistan is required to inform the ICJ of all measures it has taken in implementation of this order. The ICJ will remain seized of this issue until it passes the final judgement in this case.

There is no ambiguity in so far as these provisional measures are concerned. And these provisional measures are binding.

Also Read: View From Pak: India’s Gamble in Kulbhushan Jadhav Case Pays Off

The Court’s Rationale

The reasoning of the court also merits mention.

One, the alleged failure by Pakistan to provide consular notification and access appear to be capable of falling within the scope of the Convention. The next sentence is a clincher:

In the view of the Court this is sufficient to establish that it has prima facie jurisdiction under Article 1 of the Optional Protocol.

Interim Order, International Court of Justice

The Court also dismissed Pakistan’s suggestion that a 2008 bilateral agreement nullified rights under the Optional Protocol. Rightly so. Surely, a bilateral agreement can supplement, not undermine rights and obligations under an international agreement.

Also Read: Sarabjit Singh’s Sister On ‘Historic’ Kulbhushan Jadhav Verdict

India’s Stand Justified

Two, the court held that the rights alleged by India are plausible and three, the court was satisfied that there is urgency in the present case.

Given the clarity of this reasoning, the Court had no hesitation “unanimously to direct Pakistan to ensure that Jadhav is not executed pending the final decision”, and that Pakistan informs the Court of all the measures taken in implementation of the present order.

Also Watch: Pakistan Must Gracefully Accept ICJ Ruling: Prof Bharat Desai

The fact that India chose to approach the ICJ was in and of itself of considerable significance. It signifies both a strong and clear headed political leadership and good legal advice.

Bureaucrats Not in Favour of Approaching the ICJ

During an extended one-hour meeting with External Affairs Minister Sushma Swaraj on the evening of 15 April 2017, this issue came up. Since I was meeting her after a long gap, there were naturally a number of issues I wished to take up.

When I suggested that we consider approaching the ICJ option, a suggestion I had already mentioned in a TV discussion earlier, I was pleasantly surprised that she was not only well briefed but proceeded to discuss specific precedents. She asked me to provide my email. Before I returned home, I was already reading a cogent and well informed legal opinion on this matter. In the interest of confidentiality I will not divulge the name of the legal luminary who provided the opinion. It is entirely possible several others suggested a similar approach and strategy.

Equally, the opposite view, prominently articulated by hardline veterans in the Pakistan bashing camp, suggested this would be a departure from the past and play into Pakistan’s hands and third party meddling.

Also Read: Ministers Laud Swaraj, Say Govt Will Save Jadhav at Any Cost

Success has many fathers. In the interest of objectivity, it needs emphasis that this was not advice from within the bureaucracy. Good political leadership of course always ensures that a reluctant bureaucracy falls in line.

What Next for India?

What next? The Pakistani State, at the apex level, appears to be in a state of disarray. The GHQ, clearly in the driving seat, is like the rest of the State apparatus not anchored in a system based on the rule of law. In many respects, it looks like a major criminal enterprise. This is something which Pakistan's other two neighbours, Afghanistan and Iran, can also attest.

Having obtained relief of an interim nature, we will need to carefully monitor Pakistan’s compliance and then think through our next steps, possibly requiring a combination of pressure from the ICJ and a hardball response by us.

No matter how this plays out, India could not have avoided using the ICJ option given the present state of bilateral relations. For this alone, the political leadership and the EAM deserve well earned praise.

(The writer presided over the UN Security Council and chaired its Counter-terrorism Committee and is a member of the BJP. He is the author of ‘Perilous Interventions: The Security Council and the Politics of Chaos’ . He can be reached at @HardeepSPuri. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)