|The Author is Former Director General of Information Systems and A Special Forces Veteran, Indian Army|
News coverage about the recent hearing of the case relating to Kulbhushan Jadhav in the International Court of Justice (ICJ) went off the radar in the Indian media because of the February 14 Pakistan-sponsored car bombing at Pulwama by Jaish-e-Mohammad (JeM) and Indian airstrikes on three JeM terrorist camps in Pakistan Occupied Kashmir (POK) and Pakistan on February 27. India took Pakistan to ICJ on the grounds that Islamabad violated the Vienna Convention by denying consular access to Jadhav. The hearing in February 2019 was to give a verdict on the counts of jurisdiction of ICJ and Vienna Convention violation by Pakistan; jurisdiction also because Pakistan took up that ICJ has no jurisdiction in the case since it involves spying. India contends Jadhav working as a businessman in Iran was abducted and brought to Pakistan. After the hearing on both counts, the court was to deliberate and give the judgment. So the verdict will be announced sometime in the future.
The case was heard by 16 judges of the ICJ. ICJ President, Abdulqawi Ahmed Yusuf is from Somalia origin, while countries of other judges include China, Slovakia, France, Morocco, Brazil, US, Italy, Uganda, India (Judge Dalveer Bhandari), Jamaica, Russian Federation, Lebanon, Japan and Pakistan. The ICJ hearing related to Kulbhushan Jadhav was scheduled from February 18 to February 21, 2019. It may be recalled Pakistan maintains that Jadhav was caught in Balochistan on March 3, 2016, but Pakistan's lie was exposed by Mehdi Honardoost, Iranian Ambassador to Pakistan who dismissed Pakistan's charge that Jadhav was a spy, saying that the claims were "one hundred percent false". Had Pakistan believed R&AW was operating out of Iran, they should have shared this information with Tehran. But more significant was the expose of Pakistani skullduggery by Gunter Mulack, former German Ambassador to Pakistan, who disclosed he had information that Jadhav had been kidnapped by the Taliban (on franchise by Pakistan) near Chaman, and sold to Pakistan's ISI. The alacrity, with which the Pakistani army chief confirmed death sentence for Jadhav in April 2017 post a kangaroo trial by a 'military' court charging Jadhav with espionage and subversive activities, perhaps was linked with Pakistan alleging India's external intelligence agency R&AW had kidnapped Lieutenant Colonel Zahir, who retired from Pakistan army in 2014, from Lumbini in Nepal - a charge denied by India. However, on May 9, 2018, the ICJ had unanimously stayed the execution of Jadhav when India approached the Court a day earlier; because Pakistan had violated India's right, provided under the Vienna Convention, to have consular access to Jadhav despite India making 16 such requests.
The Court supported India's right to seek consular access, and also acknowledged India's contention that Jadhav could be executed any time after May 19 which would mark 40 days since a military court sentenced Jadhav to death. Delivering an interim order on a plea by India, the ICJ rejected Pakistan's contention that it lacked jurisdiction in the case and held that India had a "plausible" right to access to Jadhav. Ronny Abraham, then President of ICJ said, "Pakistan shall take all measures at its disposal to ensure that Mr Jadhav is not executed pending the final decision... and shall inform the court of all measures taken in implementation of the present order." During the instant hearing of the case in February 2019, Pakistan has invoked the reservation under the UN charter (including India's reservation as part of the Commonwealth) and the bilateral agreement between India and Pakistan whereby consular access can be denied to those caught in acts of espionage. But on bilateral treaties, only a treaty registered with the UN by both parties can be used before a UN organ. This bilateral agreement was not registered with the UN, and therefore no UN organ can admit this treaty. Not only does this help India's case, it is for this very reason (violation of Vienna Convention by denying consular access to Jadhav) that the ICJ had stayed the death sentence of Jadhav awarded by Pakistan. Harish Salve and Khawar Qureshi represented India and Pakistan at the hearing respectively. India has also objected to the abusive language used by Pakistan's counsel, Khawar Qureshi, in arguing the case; India has urged ICJ to annul Jadhav's death sentence since it was based on 'extracted confession'. Logically, India should win the case; only then will the verdict of ICJ matter. Whether ICJ will annul Jadhav's death sentence is also crucial, though it was the violation of Vienna Convention in denying consular access that this hearing was mostly about. Pakistan had earlier stated that it will go by the ICJ verdict, but there is precedence of nations not adhering to the ICJ verdict.
Pakistan is a rogue state drunk on the power of terrorism that it exports across its borders. Morality is not in the lexicon of the Pakistani army, which was visible in the degrading treatment meted to Kulbhushan Jadhav's mother and wife when they travelled to Pakistan for meeting him. Moreover, the Pakistani military is now strung badly by the Indian air strikes on JeM terrorist camps inside POK and Pakistan on February 27; caught napping and later exposed to the US for using F-16 fighters to attack India, given to them exclusively for global war on terrorism. The psychological pressures put on Wing Commander Abhinandan Varthaman and the deliberate delay in handing him over to India at the Wagah border indicates the putrid psyche of Pakistan's ISI. It will be a miracle if Kulbhushan Jadhav comes out unscathed from the rogue nation – Pakistan.