Kulbhushan Jadhav Case: ICJ Finds Pakistan in Breach of International Law

The Hague-based court affirmed Jadhav’s right to consular access and called on Pakistan to review and reconsider his conviction and sentence.

New Delhi: In a major setback to Pakistan, the International Court of Justice has ruled that Islamabad had breached its obligations under international law and that Indian consular officers should have access to Kulbhushan Jadhav, who has been sentenced to death by a military court.

However, the ICJ has not accepted India’s prayer that Jadhav’s sentence should be annulled and that he be released immediately. Instead, the UN’s judicial court called for Pakistan to provide “effective review and reconsideration” of Jadhav’s conviction and sentencing by “means of its own choosing”.

This does give Pakistan the option to choose the civilian or military court, but ICJ has also given specific instructions that it should meet the principles of a “fair trial”.

The 16-bench court gave its verdict on eight points of contention. Out of them, the first one – on the court’s jurisdiction to entertain India’s application under VCCR Optional Protocol concerning compulsory settlement of disputes – was unanimous.

The rest of the seven points were approved 15 to 1, with the sole negative vote cast by ad-hoc judge Tassaduq Hussain Jillani of Pakistan. Judge Jillani had been appointed to this bench to hear this case, as India’s Dalveer Bhandari is a member of the ICJ.

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

Welcoming the verdict, Indian Prime Minister Narendra Modi claimed that “truth and justice have prevailed”.

“I am sure that Kulbhushan Jadhav will get justice,” he posted on his Twitter account.

Former Indian external affairs minister Sushma Swaraj was one of the first leaders to welcome the verdict as a “great victory for India”. She also acknowledged Modi for “our initiative to take Jadhav’s case before International Court of Justice”.

Following ICJ’s pronouncement, external affairs minister S Jaishankar called up and spoke to Jadhav’s parents living in Maharashtra.

The Indian government’s official statement asserted that New Delhi’s position had been validated “fully”.

Noting that ICJ had directed that Indian consular officers should have access to Jadhav without further delay, the ministry of external affairs stated that that India “expect Pakistan to implement the directive immediately”.

MEA also expressed appreciation for ICJ’s directive that Pakistan has to review and reconsider the conviction and sentence of Jadhav by Pakistani military court. “We expect Pakistan to implement the directive immediately,” said the press note.

ICJ ruling by The Wire on Scribd

In Islamabad, the ministry of foreign affairs was also claiming victory on the basis that Jadhav had had not been released.

“The International Court of Justice in its judgment announced today regarding Indian serving Naval Commander Kulbhushan Jadhav has decided not to acquit/release him thus not accepting Indian pray,” said the Pakistan government press communique.

There was no mention of Pakistan being found in breach of international law. The press note also asserted that Jadhav was responsible for “sabotage, espionage and multiple terrorist incidents”.

On the next steps forward, Pakistan that it “will now proceed as per law”.

India’s counsel, Harish Salve said that if Pakistan did not provide consular access now, it was ready to go back to court.

“We expect Pakistan to do whatever it has to do including appropriate legislative measures to guarantee a fair trial. So Pakistan’s conduct is under watch and if what they do is another farcical attempt, we will be back in the court,” he told reporters in London.

The verdict was read out by president of the court, Judge Abdulqawi Ahmed Yusuf from Somalia, in a public sitting at the Peace Palace in Hague.

India was represented at the Hague by senior officials of the ministry of external affairs. Pakistan’s delegation was led by Attorney General Anwar Masoor Khan.

The UN’s judicial body said that Pakistan was in violation of Article 36 of VCCR which calls upon states to give consular access “without delay”.

Kulbhushan Sudhir Jadhav was arrested by Pakistan in March 2016 from Balochistan. Pakistan claimed that Jadhav was a serving Indian officer who was behind several terror activities in the countries.

India dismissed Pakistani allegations and claimed that Jadhav had been kidnapped from inside Iranian territory. India had also asserted that he had retired from the Indian navy.

Jadhav was sentenced to death by a Field General Court Martial of the Pakistan army in a decision that was made public by the Pakistani military spokesman on April 10, 2017.

Following the death sentence, India had approached ICJ on May 8, 2017, seeking a stay on the execution.

India had sought relief on four points:

  1. Immediate suspension of death sentence
  2. Declaration that the sentence of the military court was in “brazen defiance” of VCCR and ICCPR
  3. Directing Pakistan to annul the decision of the military court “as may be available to it under the law in Pakistan”
  4. If Pakistan is unable to annual the decision, then the Court should declare the sentence as “illegal” and direct the release of Jadhav.

The ICJ rejected Pakistan’s arguments that the application by India should be inadmissible of grounds of the ‘clean hands’ doctrine and “abuse of process”.

It also ruled that India was under no obligation to consider another dispute settlement mechanism before instituting proceedings before ICJ.

The court also dismissed Pakistan’s argument that VCCR’s article 36 was not engaged as India had not proved Jadhav’s nationality. Pointing out that Jadhav had been mentioned as Indian national in repeated official communication by Pakistan, ICJ said that there was “no room for doubt” about Jadhav’s Indian nationality.

Pakistan had argued in written submissions and at public hearings that India had violated UN Security resolution 1373 by failing to respond to the former’s request for mutual legal assistance with criminal investigation and Jadhav’s “passport”. ICJ did not find them valid enough to be invoked as ground of inadmissibility of India’s application.

Further, the court could not find any grounds for Pakistan’s contention that VCCR was not applicable to prima facie cases of espionage, even under customary international law.

Pakistan had contended that 2008 bilateral agreement with India, rather than the Vienna convention governed consular access between the two countries.

The ICJ noted that the two countries had negotiated the agreement in “full awareness of Article 73, paragraph 2, of the Vienna Convention”. Therefore, the Court observed that the 2008 pact is a “subsequent agreement” that intends to “confirm, supplement, extend or amplify” the Vienna Convention.

“For these reasons, the Court finds that none of the arguments raised by Pakistan concerning the applicability of Article 36 of the Vienna Convention to the case of Mr. Jadhav can be upheld. The Court thus concludes that the Vienna Convention is applicable in the present case, regardless of the allegations that Mr. Jadhav was engaged in espionage activities,” said the ICJ judgment.

The ICJ found that Pakistan breached its obligations under Article 36 of VCCR on these three points:

  1. by not informing Jadhav of his rights under Article 36, paragraph 1 (b)
  2. by not informing India, without delay, of the arrest and detention of Jadhav
  3. by denying access to Jadhav by consular officers of India, contrary to their right, inter alia, to arrange for his legal representation

The court ruled that Pakistan is “under an obligation to inform Kulbhushan Sudhir Jadhav without further delay of his rights and to provide Indian consular officers access to him in accordance with Article 36 of the Vienna Convention on Consular Relations”.

However, regarding remedies, the court followed precedence and did not uphold India’s contention that the sentence should be immediately suspended and that Jadhav be released.

Also read: Kulbhushan Jadhav’s Death Sentence Based on ‘Extracted Confession’: India at ICJ

Instead, ICJ stated that Pakistan had to “provide, by the means of its own choosing, effective review and reconsideration of the conviction and sentence of Mr. Kulbhushan Sudhir Jadhav, so as to ensure that full weight is given to the effect of the violation of the rights set forth in Article 36 of the Convention”.

The Court also said the “review and reconsideration” process should have full respect for the principles of fair trial.  “The Court considers that the violation of the rights set forth in Article 36, paragraph 1, of the Vienna Convention, and its implications for the principles of a fair trial, should be fully examined and properly addressed during the review and reconsideration process. 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.

Besides, the ICJ said that Pakistan should take all measures for effective review and reconsiderations “including, if necessary, by enacting appropriate legislation”.

India’s lawyer Salve said that if Pakistan reviewed Jadhav’s case in military courts with the same rules, it would yet again not meet standards of a fair trial.

According to the court, Pakistan had stated that there were two clemency procedures open to Jadhav, a mercy petition to the army chief, followed by the President of Pakistan. Currently, any decision on Jadhav’s mercy petition before the Pakistan army chief is still awaited.

Further, the court also put a pause on Jadhav’s hanging by stating that “continued stay of execution constitutes an indispensable condition for the effective review and reconsideration of the conviction and sentence of Mr. Kulbhushan Sudhir Jadhav”.

Therefore, Jadhav’s sentence cannot be carried out until Pakistan conducts an “effective” re-trial which meets international standards and also takes into account the violation of his rights under the Vienna convention.