Pakistan has been ordered to not hang Kulbhushan Jadhav, but Islamabad can still execute the convicted Indian spy in spite of the verdict. The International Court of Justice (ICJ) ordered Pakistan to stay the execution of Jadhav, who was sentenced to death by a Pakistani military court last month on charges of espionage and sabotage.
On Thursday, the ICJ ruled unanimously that Pakistan should not execute Jadhav until the final decision in the proceedings. The final decision the ICJ is referring to could take months or even years to reach, as this kind of hearing usually involves a comprehensive investigation.
While the ICJ’s verdicts are final and binding, the court has no legal way to enforce its verdicts, which, by the way, have been ignored by other countries in the past numerous times.
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What gives Pakistan leeway to execute Jadhav in spite of the ICJ ruling?
Pakistan, which arrested Jadhav in the southwestern province of Balochistan in March 2016, has defended its decision to execute Jadhav, citing a 2008 bilateral agreement on consular access signed with India. In the agreement, New Delhi and Islamabad agreed that “in case of arrest, detention or sentence made on political or security grounds, each side may examine the case on its merits.”
However, in the case of Jadhav, the argument was denied because the case turned into a national security matter. India strongly denied Pakistan’s accusations that Jadhav is a spy and has been pressuring the international community to order Pakistan to release him.
Pakistan and India already have history with taking their disagreements to the ICJ, as they used the ICJ as the platform to settle the 1999 dispute of the downing of a Pakistani navy plane that resulted in 16 deaths. At that time, the ICJ refrained and closed the case, saying that it was not competent enough to deliver a verdict.
This case gives even more leeway for Pakistan to go against the 2017 ICJ order to stay the execution of Jadhav. According to Supreme Court lawyers Sanjay Hegde and Pranjal Kishore cited by the Business Standard, Pakistan could still go ahead with Jadhav’s hanging.
The lawyers argue that ICJ is merely a legal forum for declarations of legitimacy and that international law is still “a law without sanctions.” If Pakistan chooses to hang Jadhav despite the ICJ ruling, it would not be the first country to carry out an execution in defiance of the ICJ’s verdicts.
Pakistan wouldn’t be the first country to violate ICJ verdict
In the past 20 years, there have been three cases that were taken to the ICJ, and all three cases were relating to violations of the Vienna Convention. Interestingly, in the three cases, the authorities of the detaining nations did not inform the foreign detainees about their right to consular access.
In the widely-publicized 1998 Breard v. Greene case between Paraguay and the United States, the ICJ granted provisional measures in favor of Paraguay. However, the U.S. carried out the execution shortly after the verdict. In the 2001 LaGrand case between Germany and the United States, the ICJ once again ruled against the U.S. But the U.S. once again violated the verdict, and this time the ICJ found the U.S. guilty of violating the Convention and its orders.
In 2003, there was the Avena case between Mexico and the United States. The U.S. went against the ICJ’s ruling by having its Supreme Court declare that the ICJ’s order had no legal force until Congress enacted statutes implementing it.
Israel, Japan and China have violated international verdicts in the past
But the violations of the ICJ’s verdicts are not limited to these three cases, and the U.S. has not been the only country to go against the UN court’s decisions. In 2004, the ICJ ruled that Israel’s construction of the “Annexation wall” in the occupied Palestinian territories was illegal. The verdict had little effect on Israel’s determination, as the country went against the court’s calls to tear down the illegal wall and even continued the construction of the wall in the West Bank despite the verdict, according to numerous reports.
In a more recent case of violations of the ICJ’s orders, Japan resumed whale hunting in the Antarctic in 2015 despite the UN court ruling that hunting for the mammals should stop. Japan did, however, reduce the number of whales it kills each season to 333, down by two-thirds from previous illegal hunts.
Last summer, China rejected the ruling by an international tribunal in The Hague in the South China Sea case. Beijing said outright that it would not accept the international verdict and reiterated that its “territorial sovereignty and marine rights” in the disputed seas will not be affected by international law.
With the Jadhav case, Pakistan could follow in China’s footsteps. Despite the tribunal’s ruling in favor of the Philippines and its order China to stop its military expansion in the disputed area, Beijing has been expanding militarily in the South China Sea to this very day despite the outrage from the international community.
Will Pakistan execute Jadhav after the ICJ verdict?
There is a long history of Pakistan and India detaining each other’s citizens and accusing them of spying. The Indian government revealed last year that a total of 53 people had been arrested in India on suspicion of espionage for Pakistan between 2013 and 2016. India claims it has never executed a Pakistani citizen, while Islamabad did execute Indian citizen Sheikh Shamim in 1999 after he was accused of spying for the Indian government.
While it’s unclear at this point whether or not Pakistan will listen to the ICJ and not execute Jadhav, there is a high chance that Islamabad could still carry out the hanging.
Contributed By @Sheeraz Raza, ValueWalk.