Kulbhushan Jadhav Case: India Dismisses Pakistan’s Claims of Victory

This reference to ‘enacting appropriate legislation’ by the ICJ is being interpreted by India as indication that returning the Jadhav case to a military court would not meet the yardstick of “effective review”.

New Delhi: While Pakistan celebrates the fact that the International Court of Justice did not order the release former Indian naval officer Kulbhushan Jadhav and instead said the “review and reconsideration” of his conviction and sentence could be done by “the means of its choosing”, India has pointed out that the ICJ indicated serious doubts about Pakistani military court’s legal process by suggesting that “appropriate legislation” could be enacted.

A day after the ICJ pronounced Pakistan to be in breach of international law on consular access, Indian external affairs minister S. Jaishankar called for Jadhav’s release and repatriation, even as Pakistani prime minister Imran Khan only reiterated that his administration would proceed “as per law”.

On Wednesday, the ICJ held by an overwhelming 15-1 majority that Pakistan had breached Article 36 of the Vienna Convention on Consular Relations.

While the ICJ did not uphold one of India’s prayers for immediate release, the UN’s judicial organ also ruled that Pakistan had to provide “effective review and reconsideration” of the conviction of Indian national Jadhav, who was sentenced to death by a military court on terrorism and espionage charges in 2017.

Earlier on Thursday morning, Pakistan prime minister Imran Khan praised the “ICJ’s decision not to acquit, release and return Commander Kulbhushan Jadhav to India”.

Khan, however, didn’t refer to the principal conclusion of the ICJ: that Pakistan had violated an international treaty.

Khan’s statement was mainly a reiteration of the Pakistan government’s official response through the foreign ministry on Wednesday night. The Pakistan foreign office had similarly ignored the VCCR breach and gave no indication of Pakistan’s next step, except that it would be as per law.

In Delhi, Jaishankar informed both houses of parliament that the ICJ had ruled that Pakistan “is under an obligation to inform Jadhav without further delay, of his rights and to provide India consular access to him”.

Also read: Beyond the Hurrahs, Eight Takeaways from the ICJ Ruling on Kulbhushan Jadhav

Reading out his statement, Jaishankar reiterated India’s call for Pakistan to “release and repatriate him forthwith”.

Later, MEA spokesperson Raveesh Kumar, in answer to a query, indicated that India does not have to submit a fresh request for consular access to Jadhav to start the process. “Pakistan is under obligation to provide Indian officials consular access. We expect Pakistan to do so. There is nothing else that is required. They are expected to do it themselves,” he told reporters.

While India said that the verdict had validated it fully, Pakistan has also been quick to declare victory.

The Pakistani military spokesperson told a local television channel on Wednesday night that for the ICJ to say “that the review and reconsideration can be done by means of our own choosing is great validation for our judicial system”.

He described the verdict as “another February 27”, referring to the date when Pakistan conducted retaliatory airstrikes for the bombing of a Jaish-e-Mohammad facility in Khyber-Pakhtunkhwa province by the Indian Air Force a day earlier.

Responding to Pakistan’s celebratory statements, Kumar said that Pakistan seems to be “reading from a completely different verdict”.

“If they have no patience to read 42 pages of the verdict, they can go through the seven page press release,” he added.

Kumar noted that the headline of the ICJ’s press release summarising the judgment – “The Court finds that the Islamic Republic of Pakistan, in the matter of the detention and trial of an Indian national, Mr. Kulbhushan Sudhir Jadhav, has acted in breach of the obligations incumbent on it under Article 36 of the Vienna Convention on Consular Relations” – was itself an indication of the key declaration of the court’s judgement.

Also read: Explainer | Kulbhushan Jadhav Case: The Legal Arguments

Military or civilian court?

When asked whether India would have any objection if Pakistan reviewed Jadhav’s case in a military court, Kumar said that the ICJ judgment clearly said that the “review and reconsideration” had to be “effective”.

In its order, the court had specifically stated that the violation of Jadhav’s rights under Article 36 had to be “fully examined and properly addressed” during the review and reconsideration process.

Further, the ICJ had indicated that rules of the court should be changed to meet the standards of a fair trial. “In particular, any potential prejudice and the implications for the evidence and the right of defence of the accused should receive close scrutiny during the review and reconsideration,” it said

Significantly, this ruling, passed 15-1, stated Pakistan should take all measures “for effective review and reconsideration, including, if necessary, by enacting appropriate legislation”.

This reference to “enacting appropriate legislation” is being interpreted by India as the court indicating that returning the Jadhav case to a military court would not be adequate for “effective review and reconsideration”.

India’s lead counsel, Harish Salve had also been explicit that a military court, “with [the] same rules” wouldn’t meet the standards of a fair trial. “If it’s back in military court with the same rules where outside lawyers aren’t allowed, we aren’t allowed, access isn’t given, evidence isn’t given, it won’t meet standards,” he told reporters in London on Wednesday.