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Why Pakistan Can Hang India’s Spy Kulbhushan Jadhav Even After ICJ’s Verdict

By Polina Tikhonova. Originally published at ValueWalk.

Pakistan has been ordered to not hang Kulbhushan Jadhav, but Islamabad can still execute India spy convicted of spying 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. But Islamabad can still hang India’s spy in spite of the ICJ verdict – as there have been numerous examples of countries violating ICJ verdicts in the past.

Pakistan India Jadhav
Photo by Uzairmaqbool (Pixabay)

On Thursday, the ICJ ruled in a unanimous verdict 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 come to, as this kind of hearings usually involve a comprehensive investigation.

While the ICJ’s verdicts are final and binding, the court has no legal force to enforce its verdicts, which, by the way, have been ignored by other countries in the past numerous times.

What gives Pakistan leeway to execute Jadhav in spite of ICJ ruling?

Pakistan, which arrested Jadhav in the southwestern Pakistani 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 2008 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 pressures the international community to order Pakistan to release the alleged Indian spy.

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. Back then, the ICJ refrained and closed the case, saying that it was not competent to rule a verdict.

This case gives even more leeway for Pakistan to go against the 2017 ICJ verdict that orders Islamabad 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 in spite of the ICJ’s ruling.

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 chose to hang Jadhav despite the ICJ ruling, Islamabad would not be the first country to carry out executions 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 violation of the Vienna Convention. Interestingly, in the three cases, the authorities of the detaining nations did not inform the foreign detainees about the 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 as well as its orders.

Two years later, in 2003, there was the Avena case between Mexico and the United States. The U.S. went against the ICJ’s ruling by having 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 Antarctic in 2015 despite the UN court ruling that hunting for the mammals should stop. Japan did, however, cut 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 ruling in favor of the Philippines and ordering 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 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, back 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 against the Indian spy.

The post Why Pakistan Can Hang India’s Spy Kulbhushan Jadhav Even After ICJ’s Verdict appeared first on ValueWalk.

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