Tuesday, September 26th, 2017
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While Indians celebrate interim order of the International Court of Justice that seeks to restrain the execution of spymaster Kulbhushan Jadhav, there is the heated debate in Pakistan if the government could have prevented the initial outcome. In what has happened for some, the glass is half full and for others half empty. From the government's point of view, the court's decision has not changed the status of the Jadhav case. The stay granted by the court is merely a procedural matter, not a verdict, and therefore, has no bearing on the final outcome, it said in a statement issued after the order. But then, it also wants to constitute a new team of lawyers, betraying its realization that things at The Hague didn't go well. That is where the glass is half empty in the eyes of a fairly large number of experts in international law and those familiar with workings of the International Court of Justice (ICJ). They have raised questions about the manner in which the issue has been handled by the government - in some utterances their criticism borders on suspicion that what has happened could be part of a deal between the two governments. In this regard, they cite the visit of Indian steel tycoon Sajjan Jindal last month with a view to substantiating their viewpoint. They want to know why Pakistan accepted the ICJ's compulsory jurisdiction as late as on March 29 this year. Equally puzzling is the government's failure to exercise its right to appoint an ad hoc judge to the ICJ. India's, however, was part of the panel that granted stay against the execution of Jadhav. Ideally, Pakistan should have stayed away from the court; but it did not do that, hoping its plea that the court had no jurisdiction in the matter would be accepted. But the court put its foot down, insisting that it has the desired jurisdiction and its decisions are to be implemented in letter and spirit. Pakistan was not going to execute Jadhav anytime soon as he was granted the right of appeal as well as the right to file a mercy petition with the President of Pakistan.

It was certainly a shock to know that the ICJ appears to be biased in favour of a person whose hands are deep red with human blood. That the ICJ has no jurisdiction is a fact that has found its best expression from the 2008 agreement between Pakistan and India that stipulates no legal concessions to spies. Then the said court too has no direct jurisdiction. As it relied upon a Protocol attached to its original jurisdiction, its decision tends to forfeit its validity when juxtaposed against the 2008 bilateral agreement between Pakistan and India in matters of national security. According to prominent lawyer and jurist S M Zafar, it is a "wrong decision". Although the court itself admitted that since parties to the dispute could not convey their points of view and the court needs further assistance from both countries, it still granted stay order against the execution of Jadhav. As if the court thought Jadhav would be hanged next week. Didn't the ICJ know that he had plenty of time at his disposal? But the ICJ appeared to be in a great hurry. Seemingly, it was interested in degrading the "existence of a risk of irreparable prejudice to the rights claimed by India." But now when the spy case is before the International Court of Justice the government is expected to revisit its strategy. Constituting a new team of lawyers appear to be the right approach to the case. There is a widely-held perception that the government did not give it the importance it actually deserved. It is also one's earnest hope that the entire saga of ICJ stay order was not the outcome of Jindal's visit. Yet an authoritative denial is due from the relevant quarters. A stigma not removed in time sticks.

the author