Can we finally save Jadhav’s life?

Choices apart, will Pakistan abide by the international canons or prefer to seek recourse to what the US has done in the past coming under similar circumstances? Remember Sarabjit Singh's case? Was he hanged to death?

No, though he was tried and convicted by the Supreme Court of Pakistan for a series of bomb attacks in Lahore and Faisalabad that killed 14 bystanders in 1990. While in prison in Lahore, he was attacked by fellow inmates and died six days later at a hospital. That is why we must be worried about Jadhav

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So Kulbhushan Jadhav won’t be harmed for now. In troubled times such as these, this one sounds a great piece of news. But, we should remember that this is about Pakistan. A Pakistani, if caught – of course, Jadhav was not caught, but kidnapped – by Indian authorities, would be safe in India against the backdrop of such a ruling.

Whether Pakistan would respect The Hague ruling in Jadhav's case is to be seen. Pakistan as a State may not bring harm to Jadhav, but how about its non-State players? Would they keep quiet? Won't they be prodded into action by the State itself?

The hue and cry in Pakistan over the International Court of Justice (ICJ) ruling is on expected lines. The debate in the neighbourhood is not just about Jadhav, but more centered around the Kashmir issue. Everyone who spoke about the failure of Pakistan at The Hague, also talked about "human rights violation in Indian held Kashmir" and why their own government failed to take up the matter with The Hague.

Former Pakistan Bar Council Vice Chairman Dr Farogh Naseem was quoted by Pakistani media thus: “Pakistan should have immediately withdrawn its March 29, 2017 declaration accepting the compulsory jurisdiction of the ICJ. Instead of contesting the matter, this should have been done immediately after the Indians took Jadhav's case to the ICJ.”

He also raised the Kashmir issue and wondered why it was not taken to the International Court and immediately checked himself to answer, “India had not conceded to the court's compulsory jurisdiction in this matter.” Additional Attorney General of Pakistan Tariq Khokhar also regretted that Pakistan had accepted ICJ jurisdiction through a declaration, "which should have been withdrawn once Pakistan knew India would invoke the ICJ's jurisdiction against it.”

We should note that Pakistan refuses to accept that it has committed a wrong. Its only regret is that it has not handled the case well. Pakistanis are only worried that their counsel did not argue for the full allotted time and effectively at that.

It is not that there are no saner voices out there. Noted human rights activist Asma Jahangir asked Pakistan not to make the issue a matter of ego, "but find a way out by going through the ruling thoroughly.” She was quoted by Dawn: "Who gave the opinion to deny consular access to Jadhav in the first place? Will it not endanger the rights of prisoners languishing in Indian jails? Can one change international Law?"

Pakistan is mulling over the alternatives now and therein lies the bad news for Jadhav. It is being asked by a section of the society to go for a fast-track hearing of the case afresh in civilian courts by quashing the conviction handed down by the military courts in the face of the resounding and unqualified defeat.

The unfriendly neighbour knows that the national security exception in the 2008 bilateral agreement between the two countries, which it was banking upon, was only applicable to additional safeguards provided under the agreement. The agreement and the exception could not supersede the Vienna Convention on Consular RElations (VCCR) 1963.

Former Pakistani Law Minister S M Zafar opined that the ICJ ruling was prima facie a wrong decision and that the ruling was not binding on Pakistan.

In the second phase, Pakistan is bound to brush up its terrorism angle more rather on concentrate on the other legalities. In all these arguments mentioned above, what is striking is the fact that there is no second opinion on whether Jadhav is a terrorist at all.

Pakistani argument is not centered around this, but only around why it failed to convince the The Hague court on the necessity to hang Jadhav. Choices apart, will Pakistan abide by the international canons or prefer to seek recourse to what the US has done in the past coming under similar circumstances?

The ICJ had decided such appeals against the United States when Paraguay, Germany and Mexico approached the International Court of Justice seeking a stay on the death penalties awarded against their citizens, but the US went ahead with the executions.

It was in 1998 that Paraguay had pulled the US to the ICJ accusing it of violating the Vienna Convention. The reason was that the State of Virginia had failed to inform Angel Francisco Breard, a Paraguayan, of his right to contact the Paraguayan Consulate for assistance after his arrest.

The Hague had directed the US to take all measures at its disposal to prevent the execution of Breard, pending a final decision in the proceedings instituted by Paraguay. But, Breard was executed on April 14, five days after the verdict. A helpless Paraguay later withdrew the case.

A second time in case of German national Walter LaGrand and his brother Karl too, the US did not heed the rulings of The Hague court. In this particular case, both the brothers were arrested in the US State of Arizona in 1982 on suspicion of armed robbery and murder. Germany instituted proceedings against the US for allegedly failing to inform the duo of their right to Consular access guaranteed by the Vienna Convention just as Paraguay did in case of Breard.

But unmindful of the proceedings the US executed Karl before the case started which led to Germany demanding a compensation to Karl's family from the US and also a halt to the execution of Walter till proceedings were pending. The ICJ which heard the case the very next day of Karl's hanging ordered the US to ensure that Walter was not executed during proceedings.

However, the US executed Walter on the very same day. The US later argued before the ICJ, when challenged by Germany on its violation of the International Law in its failure to implement the provisional measures, that the Vienna Convention did not grant rights to individuals, only to States. Of course, the ICJ ruled in favour of Germany.

The ICJ cannot function as a “court of criminal appeal” but only in establishing whether a country has breached its obligations as listed under Article 36, paragraph 1, of the Vienna Convention. The US did not oblige the ICJ even in a case of 54 Mexicans awarded death sentences by a local court. That was in 2003 and Mexico had dragged the US to the ICJ over the same.

However, in March 2005, the US pulled out of the Optional Protocol to the Convention, which allows the ICJ to have compulsory jurisdiction over disputes arising under the Convention. In June 2006, the US Supreme Court ruled that foreign nationals who were not notified of their right to consular notification and access after an arrest may not use the treaty violation to suppress evidence obtained in police interrogation or belatedly raise legal challenges after trial.

In March 2008, it further ruled that the decision of the ICJ directing the US to give "review and reconsideration" to the cases of Mexican convicts on death row was not a binding domestic law and therefore could not be used to overcome state procedural default rules that barred further post-conviction challenges.

Remember Sarabjit Singh's case? Was he hanged to death? No, though he was tried and convicted by the Supreme Court of Pakistan for a series of bomb attacks in Lahore and Faisalabad that killed 14 bystanders in 1990. While in prison in Lahore, he was attacked by fellow inmates and died six days later at a hospital. That is why I am worried about Jadhav!