Jadhav Case and Realpolitik of nternational law
Dr. Md Rizwanul Islam*
Kulbhushan Sudhir Jadhav, an Indian citizen, was sentenced by a Pakistani military court to be hanged for his alleged engagement in espionage and terrorism. The events surrounding his arrest is contested in that while India claims that he has been abducted from Indian territories, Pakistan claims that he has been arrested while committing illegal activities in its turbulent Baluchistan province. On May 8, 2017, invoking inter alia, the Vienna Convention on Diplomatic Relations 1963 (which gives foreigners facing criminal charge abroad a right to have access to consular staff of their own country), India filed an application to the International Court of Justice (ICJ) asked for inter alia, suspension of the sentence. On May 9, a notification by the President of the ICJ was issued to the Prime Minister of Pakistan asking him to act in a way which would ensure that any order of the court could have a due effect, and then oral hearings involving lawyers from both countries followed. On May 18, through an interim order, the ICJ unanimously asked the Pakistani authorities that pending a final decision by the ICJ they do not proceed with the execution. The merits of the case should now be judicially settled in coming months.
While the interim order may have incensed many nationalists in Pakistan’s viewing this as an unjust encroachment on the sovereignty of Pakistan, it should not only be welcomed by Indians but by most neutrals as a triumph of law over brute force or realpolitik. Attentive readers of international law and international relations may, in this context, find a parallel in the case of Angel Francisco Breard of Paraguay who in quite a similar situation got the benefits of international law.
Breard was convicted of raping and killing a US citizen and was about to be hanged. While Breard had access to defence lawyers, he did not have any access to a consular official of Paraguay – a right granted to him under the Vienna Convention on Consular Relations, 1963.
Even the US federal administration acknowledged that they had violated their international legal obligations. Upon a petition by Paraguay, with less than a week before the scheduled execution of Mr. Breard, on April 9 1998, the ICJ passed an interim order asking the US authorities to ensure that pending a final determination by the former, the latter do not execute Breard. The US executive dithered which was evident from the contradictory positions of the Clinton administration in trying to persuade the Governor of Virginia to postpone the execution on the one hand and the instruction to the Solicitor General of the USA that he would argue that the execution could proceed notwithstanding the interim order of the ICJ on the other hand. In a 6-3 decision, the Supreme Court of the USA decided to ignore the ruling of the ICJ. Breard was executed on April 15, 1998.
Surely, disregard to international legal obligations by the US authorities does not in any way imply that Pakistani authorities would have been legally or morally justified in taking the same path. More importantly, the moral concern with the US action is that being the most powerful country on the earth and endowed with the veto power in the United Nations Security Council, the authorities of the USA could do what they wanted or what was perceived to be more palatable to the national imperatives.
On the other hand, the Pakistani authorities, being bereft of both of the same clout and veto power, would have to do, what they should. Assuming Pakistan opts to ignore the decision of the ICJ, it has to take the real risk of facing an adverse measure of the Security Council as is provided in Article 94(2) of the United Nations Charter that “[i]f any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.” It is astounding that a country which can hardly be portrayed as practising democracy is following the dictates of international law (albeit being perhaps left with very little choice) in a way that the world’s most powerful democratic country has not. This will bewilder many who want to have faith in the universal values of democracy and international law.
*Dr Md Rizwanul Islam is an Associate Professor at School of Law, BRAC University.