Why Pakistan can hang Jadhav despite the ICJ verdict and what is the way out for India
In a major victory for India, the International Court of Justice, the principal judicial arm of the United Nations, on Thursday stayed the death sentence of Kulbhushan Jadhav, an Indian national convicted by a military court in Pakistan for 'espionage' and 'subversive activities'.
The court’s order, which was announced by ICJ President Ronny Abraham in a public sitting, noted that Jadhav should not be executed until the court delivers its final decision.
The earliest that Pakistan could have hanged Jadhav is May 19, which will not happen now.
Why Pakistan can snub ICJ’s verdict
While it’s unclear at this point whether or not Pakistan will abide by the ICJ and not execute Jadhav, there is a high chance that the hanging could still be carried out.
Although the ICJ verdict is “binding” as was clarified by the president of the court himself, it doesn’t actually have the power to enforce it.
India argues that Pakistan’s stand on the Jadhav case is a breach of the 1963 Vienna Convention on Consular Relations, an international treaty that outlines the requirements for healthy working relations between independent nations, for maintaining “international peace and security”.
Pakistan defended its decision to execute Jadhav, citing a 2008 bilateral agreement on consular access signed with India. Under the agreement, both countries agreed that “in case of arrest, detention or sentence made on political or security grounds, each side may examine the case on its merits”.
However, in this case, the argument was denied because Pakistan termed it as a “national security matter”. India strongly denied Pakistan’s accusations that Jadhav is a “spy” and has been pressuring the international community to get Pakistan to release him.
Pakistan and India already have a history of taking their disagreements to the ICJ. In 1999, Pakistan had approached the ICJ after India had downed a Pakistani navy plane that resulted in 16 deaths. At that time, the ICJ refrained and closed the case, saying that it was not competent enough to deliver a verdict.
In case of Jadhav, Pakistan has even more scope to go against the ICJ verdict to stay the execution. According to Supreme Court lawyers Sanjay Hegde and Pranjal Kishore cited by the Business Standard, Pakistan could still go ahead with Jadhav’s hanging.
The lawyers said that ICJ is merely a legal forum for declarations of legitimacy and that international law is still “a law without sanctions.” If Pakistan chooses to hang Jadhav despite the ICJ ruling, it would not be the first country to carry out an execution in defiance of the ICJ’s verdicts.
India claims it has never executed a Pakistani citizen, while Islamabad did execute Indian citizen Sheikh Shamim in 1999 after he was accused of spying for the Indian government.
Pakistan wouldn't be the first country to reject ICJ verdict
In the past 20 years, there have been three cases that were taken to the ICJ, and all three cases were relating to violations of the Vienna Convention. Interestingly, in the three cases, the authorities of the detaining nations did not inform the foreign detainees about their right to consular access.
Paraguay vs US
Paraguay national Angel Francisco Breard was arrested in 1992 for the attempted rape and murder of his neighbour in Virginia, USA.
Eleven days before his execution, Paraguay instituted proceedings against the US in the ICJ, alleging that the US violated the Convention at Breard's arrest.
The ICJ issued an order requesting the United States to "take all measures at its disposal to ensure that ... Breard is not executed pending the final decision in these proceedings."
However, the US defied the ICJ’s order and shortly after this decision, Angel Breard was executed by lethal injection administered by the Commonwealth of Virginia on 14 April 1998.
Germany vs US
Walter LaGrand and his brother, Karl, were arrested in Arizona in 1982 for their involvement in an attempted bank robbery, in the course of which the bank manager was murdered, and another bank employee was seriously injured.
In 1984, an Arizona court convicted the brothers and sentenced them to death.
In 1992, while still in prison, the LaGrands learnt of their rights to consular access, and approached the German consulate. But because of a US law, the brothers were precluded from challenging their convictions and sentences.
The two brothers were executed in 1999, and this time, the ICJ found the United States guilty of violating the Convention and its orders.
Mexico vs US
Medellin, a Mexican national who had moved to the US as a child, was sentenced to death for the rape and murder of a 16-year-old girl in Texas in 1993.
Another 14-year-old girl was also raped and murdered in the crime, perpetrated by Medellin and his five accomplices.
When Mexico approached the ICJ in 2003, the court in its judgement, announced that USA had indeed breached its obligations to the Mexicans, and that it should “provide, by means of its own choosing, review and reconsideration of the convictions and sentences”.
The US, however, again went against the ICJ’s verdict, with its Supreme Court declaring that the ICJ’s ruling had no legal force until Congress enacted statutes implementing.
Other than the US, Israel, China and Japan have also went against the UN court’s decisions.
What if Pakistan doesn't comply with ICJ’s verdict?
Islamabad has rejected 16 Indian requests for consular access to the former Indian Navy officer, held at an unknown prison in Pakistan.
India could once again ask Pakistan for consular access to Jadhav. However, its likely that Pakistan will refuse again but there is a little chance that it may decide not to go against the CJ order. If it actually does give India access, it could remove the necessity for the next round of hearing.
That seems unlikely, since the Pakistan foreign office spokesperson has already declared that Islamabad will have a tougher stand during the full hearings that will come up.
The court judgments in the contentious cases are final and without appeal, though there is no way ICJ can enforce its decisions. In that case, India can approach the UN Security Council.
The UN charter says 'each member of UN undertakes to comply with the decision of the International Court of Justice' and “if any party to a case fails to perform the obligations, the other party may have recourse to the Security Council'. The Security Council, it says, "may decide upon measures to be taken to give effect to the judgment".
Senior Supreme Court lawyer Siddharth Luthra told a news channel that while the judgement "cannot be enforced the way domestic court judgements can", India could also ask for sanctions against Pakistan.
"If Pakistan says it will not implement the UN court ruling, India can go to Security Council and ask for sanctions against Pakistan for breach of the ICJ judgement," said the lawyer.
Clearly, the ramification's of Pakistan's apparent insistence on not abiding to the top international court's verdict can be heavy. Whether it chooses to invite such repercussions for a single execution is something that may well be decided on the basis of what the Islamic country's all-powerful military and its government come to agree on.