World, Asia - Pacific

Experts express mixed reactions on ICJ ruling on alleged Indian spy

Both Indian, Pakistani analysts term UN top court verdict in Kulbhushan Jadhav case as victory of their respective countries

Islamuddin Sajid and Ahmad Adil   | 18.07.2019
Experts express mixed reactions on ICJ ruling on alleged Indian spy

ISLAMABAD, Pakistan/CHANDIGARH, India 

Analysts and legal experts in South Asian arch-rivals Pakistan and India have expressed mixed reactions to a top UN court ruling on an alleged Indian spy currently languishing in a Pakistani jail.

The International Court of Justice (ICJ) on Wednesday ruled that death row inmate Kulbhushan Jadhav be treated under the Vienna convention, asking Pakistan to provide him consular access and continue to stay his execution.

"It's a victory for Pakistan that the ICJ has rejected most pleas of India in Jadhav case," Said Nazir, Islamabad based security analyst and retired brigadier of the Pakistan army told Anadolu Agency.

He argued that Pakistani representatives at the ICJ could not convince the Hague that Jadhav was arrested on terrorism-related charges and was behind the killing of over 1,300 innocent people.

"Otherwise, the ICJ wouldn't rule to grant him consular access," he added, stressing: "No country allows consular access to any terrorist."
Jadhav -- who Pakistan says was a serving officer in the Indian Navy -- was arrested in March 2016 in Mashakel town, a few miles from the Iranian border.

According to the Pakistani military, he was using the Muslim name Hussein Mubarak Patel.

Officials in Islamabad accuse Jadhav of running a spy network for India’s Research and Analysis Wing (RAW) intelligence agency from the Iranian port of Chabahar.

He was later tried by a military court that sentenced him to death in April 2017 on espionage and terrorism charges, without setting a date for his execution.

New Delhi rejected the charges and moved the case to the ICJ, which stayed Jadhav's execution in May 2017.

Legal experts in Pakistan opined that Jadhav could now file an appeal in the high court against the military court's verdict.

"As per Pakistani law, any convicted person from military courts could file an appeal in the high courts," said Ghulam Mahiuddin, a retired justice.

"However, if the high court upheld the military court verdict, then the convicted person could appeal in the supreme court.

"If the supreme court also rejects the appeal and review petition, then the last option is to file an appeal for mercy before the president," he explained.

Pakistani courts are not bound to follow the UN top court's judgment, though they could refer to observations or interpretations of any international law by ICJ in their ruling, he added.

Mahiuddin, who served as the judge of the High Court in Peshawar, said there were currently 67 cases under trial in high courts and the supreme court, where people convicted by military court have challenged the verdicts.

Fahd Husain, a senior Pakistani journalist and executive editor of the Karachi-based daily Express Tribune, said with Wednesday's ruling the ICJ accepted Pakistan's right to sentence Jadhav.

"ICJ verdict: (1) Jadhav will not be released (2) His sentence not overturned (3) His hanging stayed (4) He will get Consular access (5) His sentence to be reviewed. Conclusion: Indian all pleas rejected except consular access. Not too bad for Pakistan. Pretty bad for India," Fahd Husain tweeted.

- Indian experts hail the verdict

Former Indian ambassador Neelam Deo termed the UN court's ruling as a "good judgment".

"I think it can be also an opportunity for both countries to now move ahead," said Deo, who is the director of Mumbai-based foreign policy think tank, Gateway House.

"I hope that the government of Pakistan will now allow legal representation to him [Jadhav]…He needs to be given consular access,” she told Anadolu Agency.

"It is good for Pakistan to treat this as a compassionate case. Let him [Jadhav] have a trial in civilian court.

"The International court now has set aside the death sentence, which was given by the military court," she argued. "Now, if there is a civilian trial, let us see what the outcome of that trial is."

Rajiv Dogra, a former diplomat and an Indian expert on Pakistan affairs, labeled the ruling as "a landmark judgment".

"Much more than anything that the ICJ has pronounced in such cases in the past," he underlined.

"It is categorical, it sets out the supremacy of the Vienna convention...I don't think the ICJ has ever categorically commented on judicial system or procedures of the country, in the way it has done in this case. So, In many ways, it is going to be quoted as a precedent for many years to come," Dogra added.

Former Indian army officer Syed Ata Hasnain suggested Islamabad withdraw charges against Jadhav for the sake of future relations with New Delhi.

"Extremely happy to see 15-1 verdict in India's favour. However, still a long way to go. Pakistan should relent and withdraw charges in interest of future relations. Prosecuting an innocent does no good to the already strained relationship," Hasnain, a retired lieutenant general of the Indian Army, said on Twitter.

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