AUGUST 4, 2019 • THE WEEK 43MANI-FESTO
MANI SHANKAR AIYARILLUSTRATION BHASKARAN Aiyar is a former Union minister and social commentator.T
he verdict of the International Court of
Justice (ICJ) in the Kulbhushan Jadhav case
is a Judgement of Solomon. It awards all the
procedural points to India, and all the substantive
points to Pakistan.
This has enabled both India and Pakistan to
claim that victory has been theirs. Hence, the
Indian foreign ministry spokesman has asserted
that India scored “a major victory” at The Hague
while the same verdict has given Pakistan Foreign
Minister, Shah Mehmood Qureshi, scope to claim
it as “a victory for Pakistan”.
So, what are the facts? India’s external affairs
minister, in his statement to Parliament, summed
up the Indian achievement in
the following words: “Pakistan
was found to have deprived India
of the right to communicate
with Shri Jadhav, have access to
him, visit him in detention and
arrange his legal representation.”
Pakistan has promptly agreed to
comply with these findings.
But was that all we had asked
for? India had asked for the ICJ
to declare that the sentence of
the military court is violative of
international law and the provi-
sions of the Vienna Convention
(paragraph 17, ICJ judgement). To this, the ICJ has
responded at paragraph 137: “... the Court reiter-
ates that it is not the conviction and sentence of
Mr Jadhav which are to be regarded as a viola-
tion of Article 36 of the Vienna Convention.” The
international legal adviser for South Asia at the ICJ
has clarified that “the Court has, however, rejected
most of the remedies sought by India, including
annulment of the military court’s decision convict-
ing Jadhav, his release and safe passage to India”.
What were these “remedies” that India sought
beyond those related to consular access and con-
sular assistance to its national? Besides seeking
from the ICJ a “declaration” that the Pakistan
military court’s verdict be held “violative of inter-national law”, which the ICJ declined to accept,
the International Court also declined to declare
that “India is entitled to restitutio in integrum” or
to direct Pakistan “to release Jadhav forthwith and
facilitate his safe passage to India”. It also refused
to endorse India’s plea to “exclude” Jadhav’s
“confession” from further judicial proceedings in
Pakistan.
No wonder Pakistan Prime Minister Imran Khan
promptly tweeted his “appreciation” of “ICJ’s
decision to not acquit, release and return Com-
mander Kulbhushan Jadhav to India”. His foreign
minister crowed that “Commander Jadhav shall
remain in Pakistan. He shall be treated in accord-
ance with the laws of Pakistan.”
And we, alas, cannot seek further
reconsideration or relief because,
as our spokesman remarked, the
ICJ judgement is “final, binding,
[and] without the provision of ap-
peal”. He, of course, was referring
to Pakistan. The irony is that this
equally applies to India.
For the Indian external affairs
minister to describe this curate’s
egg of a judgement as a “land-
mark judgement”, which is “a
vindication for India”, is surely
hyperbolic, while Prime Minister
Narendra Modi’s tweet proclaiming that “truth
and justice have prevailed” is surely delusional, as
is his reading that “I am sure, Kulbhushan Jadhav
will get justice”.
Kulbhushan Jadhav will not get “justice” from
any Pakistani court, military or civil. Justice can
come to him only thorough a process of “unin-
terrupted and uninterruptible” dialogue with
Pakistan (which India refuses to undertake) or
through a reciprocal exchange of alleged spies, as
was the standard practice between the US and the
Soviet Union even in the worst days of the Cold
War. Has our R&AW got no Pakistani in its custody
to swap for Jadhav? If not, then what the devil is
R&AW doing?A curate’s egg