The International Court of Justice (ICJ) issued an interim ruling directing Pakistan not to execute Kulbhushan Sudhir Jadav until the world court reaches a final decision in the case of India vs Pakistan (Jadhav case). The order has much wider ramifications than merely a stay on the execution proceedings. These implications, it appears, are neither appreciated by the Pakistan government nor by its advisors.
Anyone who was caught by surprise at ICJ’s interim verdict was either living in a fool’s paradise, or had absolutely no idea how things work at the International Court of Justice. It was a forgone conclusion after the mess that Pakistan’s legal and foreign affairs team had created. The whole strategy of how to deal with this matter was flawed and lacked the dexterity required in such complicated matters.
First, and this is most important to understand. The International Court of Justice does not have a mandatory jurisdiction. Its jurisdiction is optional. That is, the ICJ cannot force a country to appear before itself. It is for the State to accept jurisdiction in a particular matter. Pakistan could have simply chosen not to appear before the ICJ, and this would have been the best legal strategy. Instead, what we saw is an unprecedented haste in which Pakistan not only decided to appear before the court, but also set up a legal team, the competence of which is questioned by many. By simply not appearing before ICJ, Pakistan could have refused to accept ICJ’s jurisdiction, and avoided this humiliation. Unfortunately, this point, it appears, was neither understood nor appreciated.
Secondly, under the rules of International Court of Justice, Pakistan had a right to request that a Pakistani legal professional be appointed as an ad-hoc judge of ICJ, to hear the Jadhav case. Again, the incompetence of the Ministry of Foreign Affairs, and the legal team, was such that it failed to make this request to the world court. The reason behind such a major blunder beats any international law expert, especially since there was a judge from India who was sitting on the panel.
Thirdly, any lawyer who has even rudimentary understanding of international law, and comprehends the workings of the International Court of Justice, would have advised the government of Pakistan that once the matter is before ICJ, there is no way in the world that it will not pass an order staying the execution. India had clearly satisfied all the prerequisites for a stay order. It had established a prima facie jurisdiction of ICJ, had clearly articulated the plausibility of its case, the real and imminent risk of irreparable harm was well established, there was an obvious link between rights claimed on merits and the provisional measures. The most professional course of action for Pakistan would have been to give an undertaking that it will not execute Jadhav until the matter is finally heard and decided by ICJ. This would have saved Pakistan embarrassment, as well as avoided the ancillary comments and observations of ICJ which will prove to be highly detrimental to Pakistan in future.
The judgement of ICJ has wider implications for Pakistan than merely stopping the execution of Jadhav. For example, the Court has determined that it has a prima facie jurisdiction to hear this matter. While this determination is not final and will be re-examined when the full case is heard, the current determination goes a long way to show the inclination of the court. In addition, in his declaration appended to the order, Judge Bhandari of India has made an observation that by not allowing consular access to Jadhav for India, Pakistan has violated the human rights of the accused. This is indeed very damning observation at this stage for the state of Pakistan.
There need not be any mincing of words. Pakistan was brutally defeated in the International Court of Justice. This was a clear loss both on the diplomatic as well as the legal front. The government of Pakistan was grossly unprepared for this manoeuvre by India. Interestingly, it appears that Pakistan’s legal team did not understand the underlying issue behind the whole proceedings. It was not about staying the execution. The likelihood of execution of Jadhav is remote since such an extreme action by the state of Pakistan would be catastrophic and perhaps result in breakdown of diplomatic relations between Pakistan and India. The actual issue at hand is that of consular access. The government of Pakistan, and its legal team, failed to interpret its obligations under the Vienna Convention on Consular relations. The team also erred in as much as it failed to predict that based on its past decisions, ICJ will certainly rule in favour of allowing consular access to India.
One wonders if those behind this faux paus will be brought to task. Of course, if history is any testament, no one will be held accountable. The nation is likely to blame India for pulling a fast one, and ICJ for being biased. The positive aspect of this saga is that Pakistan still has a chance to redeem itself since the proceedings before ICJ are ongoing. Perhaps, if the state learns from its mistakes, it can secure a victory in the main case. For a defeat of this nature is not limited to Jadhav only. The observations of ICJ in a final decision can have disastrous consequences for Pakistan on many other international legal and diplomatic forums.