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Why ICJ Verdict Suspending Kulbhushan Jadhav’s Death Sentence Was India’s Realistic Best Case Scenario

Image of Kulbhushan Jadhav's meeting with his mother and wife in December 2017 as tweeted by Pakistan's foreign office.

Image of Kulbhushan Jadhav's meeting with his mother and wife in December 2017 as tweeted by Pakistan's foreign office.

India's demand to annul the sentence delivered by the military court of Pakistan was tricky territory that the ICJ wanted to stay out of.

The verdict in the Kulbhushan Jadhav case went in India’s favour as the International Court of Justice suspended the death sentence pending legal review and directed the Pakistan government to grant India consular access to him.

It is a life-altering turn of events in the three-year-old case of this captured former Indian Naval officer, who Pakistan alleges is a spy and a terrorist. India had moved the ICJ in 2017 after a Pakistani military court awarded the death sentence to Jadhav.

India had made two prayers in its petition before the ICJ. One, suspend the death sentence by way of immediate relief as Pakistan had violated provisions of the Vienna convention and two, declare the sentence of the military court as null and void as such courts are not recognised as legal entities as per international laws of jurisprudence.

While the court has accepted the first prayer and ruled that Pakistan had violated the convention by denying consular access, it did not go as far as overturning the sentence of the military court. The court rejected most of the remedies sought by India, including annulment of military court decision convicting Jadhav, his release and safe passage to India, saying that it was not his trial and conviction by the military court that violated convention.

This second prayer, to annul the sentence delivered by a domestic court of any one of the member countries — howsoever flawed it may have been — was tricky territory that the ICJ wanted to stay out of. Territorial integrity and sovereignty of member countries goes beyond the remit of the international court and will indeed open a Pandora’s Box if the court were to tread that dangerous path.

The decision to suspend the sentence was the best case scenario that India could have hoped for and there was little chance that Jadhav would be freed from a Pakistani jail and returned to India’s custody.

India in its plea had pointed out that Pakistan had violated the Vienna convention by denying consular access to one of its nationals despite close to a 100 such attempts made by India. Consular access is a basic tenet of the Vienna convention. Not only did Pakistan deny Jadhav this, but the way the Pakistan Army and other officials treated his wife and mother when they visited him in December 2017 does not show the failing state in good light.