What the ICJ judgement implies and what’s next for Jadhav

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by Shivam Shekhawat

The International Court of Justice at the Hague, Netherlands delivered the judgement on the arrest and detention of Mr Kulbhushan Sudhir Jadhav on 17th July 2019. The retired Indian Navy officer was apprehended on charges of ‘terrorism and espionage’ by Pakistan and awarded a death sentence by its military court. The case was in the public eye for almost two years before the court presented its final verdict which gave partial respite to both the parties. The judges, with fifteen votes to one, held that Pakistan was in violation of Article 36 of the Vienna Convention and ordered it to undertake an ‘effective review and reconsideration’ of Mr Jadhav’s conviction consequently staying his execution as a provisional measure.

According to the official ICJ judgement, India and Pakistan both had disparate accounts of the arrest of the Indian citizen.

According to the Indian government, Mr Jadhav was residing in Iran after his retirement from the Navy for his business, where he was kidnapped by the Pakistani authorities and taken for ‘interrogation’.

Pakistan, on the other hand, claimed that the ‘Indian spy’ entered their territory in Balochistan illegally through the Iranian border and had in his possession at the time of arrest, an Indian passport belonging to one ‘Hussein Mubarak Patel’. Accusing Mr Jadhav of being an Indian spy working with the Research & Analysis Wing of India (RAW), wanting to foment unrest in Balochistan, Pakistani authorities arrested him on 3rd March 2016 and informed the High Commissioner of India in Pakistan exactly after three weeks. It subsequently also released a video with his ‘alleged confession in front of a magistrate’s court’ in which he acquiesces to spying for RAW. In return, India sent a Note Verbale on the very same day seeking consular access to Mr Jadhav which Pakistan didn’t respond to. 

According to some analysts, Pakistan has a ‘strategic depth policy’ because of which it wants to ensure that its western border, which it shares with Afghanistan is under a friendly government so as to warrant itself a space for retreat and reorganization. It is for this reason that its wary of India’s presence in the Balochistan area. After his arrest, Pakistan filed a First Information Report against Mr Jadhav and his trial began in front of a Field General Court Martial. Mr Jadhav was tried under Section 59 of the Pakistan Army Act of 1952 and Section 3 of the Official Secrets Act of 1923. He was sentenced to death on 10th April 2017. The press statement released by Pakistan also outlined the means of redress available to him: he could appeal before a Military appellate court within 40 days of the sentence, or send a mercy petition within 60 days of the sentence or could send an appeal petition to the President of Pakistan within 90 days of the sentence.  

The Government of India after the passage of this judgement, instituted proceedings against the ‘Islamic Republic of Pakistan’ alleging violations of the Vienna Convention on Consular Relations (VCCR) on 8th May 2017. The VCCR is an international treaty that provides a framework for consular relations between independent states. Both Pakistan and India have been a party to the convention since 14 May 1969 and 28 December 1977 respectively. Both the countries were party to the Optional Protocol at the time of the application’s filing.

India’s application to the Court had three main arguments. First, by not informing India of the detention of Mr Jadhav ‘without delay’, Pakistan violated Article 36, part 1(a) of the convention. Secondly, Pakistan’s failure in informing Mr Jadhav of his rights breached its obligation to inform the convicted of his rights under Article 36, paragraph 1 (b). Lastly, it’s a failure in giving India consular access led to it breaching paragraph 1(a) and (c) of Article 36. 

India wanted the court to declare in full measure that Pakistan had acted in breach of Article 36 of the VCCR. According to the foregoing, India asked the Court to declare that the sentence of Pakistan’s military court is violative of international law and the provisions of the Vienna Convention and that India is entitled to restitution in integrum. It requested the court to annul the decision of the military court and to restrain Pakistan from implementing the execution orders. India also appealed for the ‘release and safe passage’ of Mr Jadhav to India. It also requested the Court to direct a trial under ordinary law before a civilian court after discarding his extracted ‘confession’ in strict conformity with the provisions of the International Covenant on Civil and Political Rights, with full consular access and with a right for India to arrange for Mr Jadhav’s legal representation.  The Indian side was represented by Mr Deepak Mittal and Mr Harish Salve in the hearings whereas Pakistan was represented by Mr Anwar Mansoor Khan and Mr Khawar Qureshi.

After a trial spanning over two years, the court found Pakistan guilty of egregiously violating Article 36 of the Vienna Convention. It considered Pakistan’s breach of the Article as ‘internationally wrongful acts of continuing character’ and asked it to inform Mr Jadhav without further delay of his rights under Article 36. The court also contended that as its jurisdiction is limited to the interpretation or application of the Vienna convention, it cannot extend to India’s claims based on any other international law. 

The conviction and sentence of Mr Jadhav could not be regarded as violations under the convention and so the court cannot order his release. The judgement called for celebrations on both sides of the border with the Pakistanis hailing the court’s decision to not free the accused as a big feat and Indians showing hope that under a free and fair trial, the accused will get justice. Out of the 15 judges, Judge Trindade argued against the restrictive reasoning of the cohort of judges as according to him the court should also have taken into consideration the International Covenant on Civil and Political Rights and other international instruments which prohibit the death penalty.  

In lieu of the court’s order, Pakistan’s foreign office released a statement on 19th July saying that ‘Pursuant to the decision of the ICJ, Commander Kulbhushan Jadhav has been informed of his rights under Article 36, Paragraph 1(b) of the Vienna Convention on Consular relations.” Thereupon Pakistan agreed to give India ‘conditional’ consular access to Mr Jadhav. The proposal was evaluated by the External Affairs Ministry of India and subsequently rejected with a demand made for ‘unimpeded consular access’ to the Indian citizen. India argued that it wants to meet Mr Jadhav in an environment ‘free from intimidation’.

After India’s recent decision to bifurcate the state of Jammu and Kashmir into two union territories of J&K and Ladakh and the abrogation of its special status under Article 370, India and Pakistan’s bilateral relations have hit a new low. As a result of these recent developments, Pakistan rejected India’s request for unimpeded access with Pakistani sources stating that the talks on Mr Jadhav’s trial have ‘ended as of now’.

The case is a perfect textbook example of how more often than not the lives of individuals are affected adversely because of the changing dynamics of bilateral relations between any two countries.

India and Pakistan have always shared a rocky relationship. Given that ICJ’s judgement is binding on the two states, it is important for both the states to arrive at a consensus regarding the whole issue. Pakistan is obligated to grant consular access to Mr Jadhav irrespective of how the relations between the two countries fare. The working of the military courts of Pakistan has always been a shoddy affair. It was only after the Peshawar school attack that the Army act was amended to extend its jurisdiction to civilians engaged in terrorist acts to conduct trials expeditiously. According to a report by NIAS Strategic Forecast titled ‘Military courts in Pakistan’, despite a 90 % conviction rate, civil society groups complain about a certain lack of transparency in the above trials. Pakistan considers these courts as a major instrument for countering terrorism. Even though the court has ordered an effective review and reconsideration of the trial under civilian courts in Pakistan, the Pakistan government still had reservations about how effective the review would be.

According to a provision of the Constitution of Pakistan, which was interpreted by the Supreme Court of Pakistan as limiting the availability of such review for a person who is subject to any law relating to the Armed Forces of Pakistan, including the Pakistan Army Act of 1952. Thus there was still a lack of clarity on whether judicial review of a decision of a military court is available on the ground that there has been a violation of the rights outlined in Article 36, paragraph 1, of the Vienna Convention. The Agent of Pakistan, during the oral proceedings, assured the Court that the right to a fair trial is absolute and cannot be taken away.

It has been a month since the judgement was passed and there is still no clarity on the modalities of the whole trial and the nature of the consular access granted to India. Keeping aside the fact that the case is important, politically and diplomatically for both India and Pakistan, we should not forget that caught in this web of geopolitical rivalries are the rights of an individual. It is our moral and legal responsibility to give Mr Jadhav an impartial and effective ‘free and fair trial’ and make sure that justice is meted out to him. 

Shivam Shekhawat is a political analyst at Vistas News

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