Possible outcome of the Kulbhushan Yadav case at the ICJ

  • How, why and what?

On 3 March 2016, Commander Kulbhushan of Indian navy, serving in their premier Intelligence agency RAW, clandestinely entered Pakistan from across the Saravan border with Iran and was arrested by the Pakistani authorities in the course of a Counter Intelligence Operation from Mashkel in Balochistan (source Pakistan’s written arguments at the ICJ). Cdr Kulbhushan admitted of unspeakable acts of horror and terror against Pakistan. Based on the evidence, a military court passed a death sentence. India went to ICJ on 8 May 2017 against the military court decision to execute Cdr Kulbhushan.

The arguments for Cdr Kulbhushan are being presented by legal representative of the two nuclear states, amidst a tense atmosphere at the International Court of Justice (ICJ), Hague. The buildup between the two countries is around legal arguments, for which Pakistan’s counter memorial (arguments) dated 17 Nov 2017 is an exceptional document by many standards.

Disclaimer: Whatever information the author has is through journals, newspapers, arguments presented by both India and Pakistan at ICJ; hence to a large degree it is a handicap. However based on the above, author will try to make a hypothetical scenario without too much legal jargon with a possible set of outcomes and the reasoning behind possible decisions. The outcome admittedly is speculative and has limitation hence it is not final or conclusive. Another disclaimer is that the author is not suggesting or pointing any flaw on part of any individual, or person responsible in the entire sequence from trial, investigation, decision or pleading in the ICJ or in the above case.

Possible outcomes

There is a possibility that Pakistan may win the case and the ICJ can allow execution of Cdr Kulbhushan. There is also a possibility that ICJ asks India to take the matter directly with Pakistan. However if it were so, it would have happened during the first round of arguments or Pakistan’s counter memorial (as per ICJ rules) sent in 2017. It did not happen so, which may give rise to the notion that ICJ wants more arguments from India and evidence backed proof from Pakistan. There is, therefore, another possibility in case Pakistan is not given a favourable outcome and Cdr Kulbhushan is asked to be handed back to India, or a retrial in a different “environment”.

Pakistan, which it may like to discover now, has never been at an advantage in the ICJ

Past cases between Indian and Pakistan at ICJ

There have been few rows which India took against Pakistan in the ICJ such as below.

1.    Appeal relating to the jurisdiction of the ICAO Council (India v. Pakistan)
2.    Trial of Pakistani prisoners of war (Pakistan v. India)
3.    Aerial incident of 10 August 1999 (Pakistan v. India)

The decisions of ICJ in the above cases also reveal line of arguments and ICJ’s stance on the issues. The Indian point of view interestingly in the last case “Aerial Incident of August 10 1999” (Indian air defense destroyed a highly sensitive and expensive Pakistani aircraft) that ICJ did not have jurisdiction to adjudicate the case which Pakistan initiated, was accepted by ICJ. Pakistan’s plea against India destroying its invaluable asset was not entertained. Interestingly Pakistan this time around also took this stance that ICJ did not have jurisdiction (but from another angle), which is something India opposed, however ICJ seems to be entertaining Indian’s stance now.

Past ICJ judgments on Indian-Pakistan disputes render some of the following observations:-

  1. Dispute between the two countries should be resolved amongst themselves.
  2. ICJ will not take a “hard stand” and will try to play a role of an arbitrator instead of passing down hard decision.
  3. ICJ prefers to take itself out of situations where the tempers boil as high as they do in Pakistan-India disputes.

Possible reason if it’s an unfavoruable outcome: There is a possibility that Pakistan may win. With utmost care, only as a hypothetical case and without being prejudice to anyone, what if Pakistan does not get the expected or favorable outcome at the ICJ. Some of the reasons for that happening may be as:-

Firstly, ICJ is not a criminal court or appellate court where an appeal can be lodged. Hence, ICJ may not permit execution or hanging of a person. Secondly, after examining its multiple judgments, and nature of decision which flow out of ICJ (nearing 60 cases which were reviewed), it seems ICJ assumes a role of an arbitrator or rather one who resolves disputes. It is not going to declare India terror sponsoring state by declaring Cdr kulbhushan Yadav a terrorist instructed by a sovereign country to execute, plan and murder in Pakistan. The position of ICJ in such a case would become extremely precarious.

Thirdly, ICJ will try to argue around “Vienna convention” argument, especially Article 36 of the convention. India has been arguing around the fact that Vienna convention to which Pakistan is also a signatory has given certain rights, and privileges which were not given to Cdr kulbhushan Yadav and hence the decision by the military court has some limitations (possible argument from ICJ accepting Indian point of view).

Fourthly, the hearing could have been done in open court with evidence to be shared, and displayed for closer examination. This has to be read with the fact that ICJ may not have approved of the military courts, or its process and along with the fact that Kulbhushan Yadav was not given any “Indian access” which included his preferred choice of an Indian lawyer, or other means through which he would have defended his case. Fifth, the ICJ may like to tone down the tension between two countries very similar to its decision in the case “Aerial Incident of 10 August 1999”. ICJ according to some analysts would not like to make strong decisions.

Hence Pakistan, which it may like to discover now, has never been at an advantage in the ICJ, something worth exploring in another thread of article as to why and how? The outcome of the above case meanwhile is yet to be seen.