If the maturity or fairness of a judicial order were to be judged based on the criterion that it has a takeaway both for the appellant as well as the respondent, the 17th July judgment of the International Court of Justice, aptly qualifies. Pakistan is happy – in fact gaga – that India’s demand for Jadhav’s release has not been accepted, even though this was not under the ICJ’s legal lens. On the other hand, India has much to be happy about. For one, Pakistan’s plea for rejection of India’s application on the alleged misuse of process, misuse of rights and alleged unlawful conduct was rejected right at the very start. Second, India’s demand for consular access so that Jadhav’s legal defence could be arranged, has been upheld. Third, Jadhav’s execution remains in abeyance. Fourth, a review/reconsideration of the military court’s order prescribing death sentence has been ruled. Pakistan also got a rap for her failure in informing India ‘without delay’ of arrest and detention of Jadhav.

​The ICJ has asked for ‘effective review and reconsideration of conviction and sentence’ awarded to Jadhav. While leaving the choice of means to Pakistan, the ICJ has asked them ‘to take all measures to provide for effective review and reconsideration, including, if necessary, by enacting appropriate legislation’.

​Since Jadhav continues to be in Pak custody, the onus of any further action is squarely on that country. What now are Pakistan’s options and likely course of action? They have no escape from reviewing the case that has been mandated by the ICJ. If the case is to be reviewed by Pakistani courts in the normal course, the fairness would be under doubt ab initio, given the questionable independence of Pakistan’s judiciary. Example of General Musharraf, facing the two most serious charges of treason and murder, not even appearing in the court when called to do so, and being allowed to leave the country, is too stark to ignore. In the instant case the review is of a military court order that has been approved by the Pakistan Army Chief himself. Pakistan’s troubled history where the Army still calls the shots inspires little confidence in overturning/reviewing the military court’s order. Besides, the Bar Association of Lahore High Court having resolved that no lawyer would represent Jadhav betrays the legal mood in that country and is further evidence of a prejudiced trial. To have any credibility, the trial must be in an open court and in the presence of an ICJ representative.

​In the very unlikely event of Pakistani courts overturning the military court’s order on Jadhav’s conviction, it is doubtful the Pak military would stay mute. One compromise alternative may be for the courts to uphold the conviction, while revising the sentence from death to life sentence. This would still amount to accepting civil supremacy over Pakistan Army and may face resistance in Rawalpindi. Besides, India would most likely go back to the ICJ as their demand for acquittal and return to India of Jadhav would still not be met.

​Pakistan needs to explore other options. They have been repeatedly requesting for a dialogue with India. The latter’s stand is consistent that talks and terror cannot happen together. After Balakot strike there has been a perceptible reduction in infiltration and terror activities in the Kashmir Valley. This could prod Pakistan to renew their request for a dialogue. The request could be considerably bolstered by releasing Jadhav as a ‘goodwill’ gesture, without going through the rigmarole of the civil trial, which may only expose Pakistan’s internal infirmities. Their earlier claim of having released Wing Commander Abhinandan in February 2019 as a goodwill gesture carried no conviction as the international (read US) pressure on Pakistan to release the pilot unharmed and immediately was the trigger. The present situation is different.

​Even if Pakistan adopted the option of unconditionally releasing Jadhav, there is no guarantee that India would agree to a dialogue. This is so, given the fact that terror infrastructure remains intact and terror leaders still roam free in Pakistan, notwithstanding Hafez Sayed’s cosmetic off-and-on detention to keep pace with Donald Trump’s mood. But it could be an important step and would open a window of opportunity for India, which believes in friendly relations with all its neighbours. Even otherwise, by continuing to keep Jadhav in their custody, Pakistan draws no conceivable advantage. It seems certain that the international mood will not favour Jadhav’s execution.

It is for Pakistan to play the next hand. Will they cease the opportunity?

Lt Gen Raj Kadyan (Retd)

Former Deputy Chief of Army Staffers