Critical analysis of ICJ’s verdict on Kulbhushan Jadhav case

deepak mehto
By deepak mehto October 9, 2019 18:17

Context:

Pakistan has denied India second consular access to former Navy commander Kulbhushan Jadhav who has been sentenced to death by a Pakistan military court on the basis of extracted confession of “espionage and terrorism”.

Following the first consular access on September 2, India had said that Jadhav seemed to be under “extreme pressure to parrot a false narrative”.

Background

March, 2016 Kulbhushan Jadhav, a former Indian Navy officer was allegedly abducted by Pakistani intelligence from Iran.

Pakistan calls him “an Indian Spy” who was fomenting trouble in Balochistan.

India rejects claims of him being arrested in Balochistan.

India seeks consular access to Mr. Jadhav

April, 2017 A Pakistani army court sentences him to death.
May, 2017 India approaches the International Court of Justice against Pakistan’s decision, ICJ stays the execution of Mr. Jadhav.
June, 2017

 

 

 

 

 

 

Jadhav files mercy petition before Pakistan army.

It claims thet Mr. Jadhav has confessed to being involved in terror activities in Balochistan.

December, 2017 Pakistan allows Jadhav’s wife, mother to meet him.

Jadhav spoke to his family through an intercom as a glass screen separated them.

India had then rejected Islamabad’s claims that it had granted consular access to Jadhav, arguing that allowing an Indian official to be present at the meeting doesn’t construe as consular access.

February, 2019 ICJ begins public hearing in Jadhav case
July,  2019 ICJ verdict on Kulbhushan Jadhav. It directed Pakistan to grant consular access to Mr. Jadhav.The directive of the ICJ called for a review by Pakistan.
September 2, 2019 Pakistan grants the first consular access Kulbhushan Jadhav. India says Kulbhushan Jadhav is under extreme pressure and is parroting Pakistan’s false charges.

 

Arguments by India at ICJ

  1. The arrest process was not accompanied by immediate notification to Indian Consular at Islamabad, delay of over 3 weeks.
  2. Denial of access and communication between Mr. Jadhav and consular officials and failure to inform him of rights he enjoyed under convention.

What did the ICJ decide?

  • It decided that Pakistan had acted in violation of international norms of consular access.
  • It stayed death sentence.
  • It directed Pakistan to grant consular access to Mr. Jadhav.
  • The directive of the ICJ called for a review by Pakistan,

Why was Mr. Jadhav not set free?

  • Court refused the plea to set him free.
  • The court said that it the conviction and sentence of Mr. Jadhav are not a violation of Article 36 of the Vienna Convention.
  • The Court also said that annulment of conviction or sentence does not provide the necessary and sole remedy” in cases of violations of Article 36 of the Vienna Convention.
  • Appeals and review petitions on ICJ verdicts are not allowed.

What were the Pakistan’s conditions for granting consular access?

  • After the ICJ’s verdict, Pakistan had assured that it would comply with it.
  • But Pakistan wanted one of their officers present in the meeting and also wanted CCTV cameras installed.
  • India responded by saying that Pakistan must provide consular access to Jadhav in an environment “free from the fear of intimidation and reprisal”.

What was the Indian response?

  • India had demanded “immediate, effective and unhindered” consular access to Jadhav from Pakistan.
  • India argued that Article 36 Paragraph 1(a) of the Vienna Convention says that “consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom…to communication with and access to consular officers of the sending State.”

What happened?

  • Pakistan on September 2, 2019 granted the first consular access to the Indian death-row convict, Kulbhushan Jadhav.
  • An Indian diplomat met Kulbhushan Jadhav at a sub-jail for an hour. Despite India’s objections, the Pakistani officials, too, were present in the room where the meeting between Kulbhushan Jadhav and the Indian envoy took place. The entire proceeding was also recorded.
  • Pakistan said that the meeting was recorded to “ensure transparency”.
  • India said that Kulbhushan Jadhav appeared to be under “extreme pressure” to parrot a false Pakistani narrative in his case.

Why India wants independent consular access for Jadhav?

  • Jadhav was granted a capital punishment after a secret trial, therefore, any information from Jadhav can prove that the trial was a sham.
  • Consular access to Jadhav, can destroy Pakistan case. India can advice Jadhav on the various aspects concerning the case.
  • India can get Jadhav’s genuine version of events leading to his arrest.

 What are the International norms regarding this case?

Vienna Convention

  • The Vienna Convention on Diplomatic Relations (1961) is a treaty that defines the framework for the conduct of diplomatic relations between countries.
  • There is also a separate convention on Consular Relations signed in 1963.
  • These treaties were developed under the auspices of the United Nations.
  • They apply not only to diplomats but to personnel from the military departments, both military and civilian, who are in the country under the authority of the Chief of Mission.
Important articles under Vienna Convention
Article 27 The host country must permit and protect free communication between the diplomats of the mission and their home country.
Article 36 Foreign nationals who are arrested or detained be given notice “without delay” of their right to have their embassy or consulate notified of that arrest.

 India-Pakistan bilateral agreement, 2008

  • Immediate notification of any arrest/detention/imprisonment of any person of the other country shall be provided to the respective High Commission.
  • In case of arrest, detention, or sentence made on political or security grounds, each side may examine the case on its merits.
  • Each Govermnent shall give consular access to all nationals of the other country under arrest, detention or imprisonment within three months of the date of arrest/ detention/ sentence.
  • Essentially, the agreement exempts spies from being given the same privileges that signatories to the Vienna Convention (like India and Pakistan) must grant each other’s citizens in jail. This point is against India’s case.
  • However the ICJ said that no bilateral treaty can prevail over Vienna Conventions on consular access.

International Covenant on Civil and Political Rights (ICCPR)

  • The United Nations International Covenant of Civil and Political Rights (ICCPR) attempts to ensure the protection of civil and political rights.
  • It was adopted by the United Nations’ General Assembly on December 19, 1966, and it came into force on March 23, 1976.
  • The treaty recognizes equality before the courts and tribunals & Right to a fair trial.
  • The ICCPR also provides in Article 41 that a State Party who claims another State Party is not fulfilling its obligations to implement ICCPR, may make written submissions to the Committee for consideration.

Previous ICJ cases & the problem of implementation

  • Article 94 of the United Nations Charter states that all the members of the United Nations have to comply with the ICJ decisions in the cases in which they are parties. Both the countries have signed and ratified this.
  • There is also an ‘Optional Protocol’ to the Vienna Convention on Consular Relations for the compulsory settlement of disputes. Both India and Pakistan are parties to this protocol too.
  • The court judgments in the contentious cases are final and without appeal, though there is no way ICJ can enforce its decisions.
  • The findings and remedies in the Jadhav case with reference to Article 36 VCCR are along the same lines of the LaGrand case (Germany v. United States) and the Avena case (Mexico v. United States).
  • In both the verdicts, the ICJ found that the US was in breach of its obligations under Article 36 VCCR, and directed it to give “effective review and reconsideration” to sentences and convictions of foreign nationals.
  • Unfortunately, the implementation of the ICJ decisions on ground was extremely poor and left much to be desired.
  • Apart from the directive that Pakistan should ensure a fair trial, there is little control that India can exercise over the judicial procedure it will choose to adopt.
  • If the case goes to the civilian courts, there is a glimmer of hope. However, if it continues to remain with the military court, we may not see a fair trial.

What if Pakistan refuses to follow International Court of Justice order?

  • India can approach the United Nations Security Council, which is empowered to take binding measures to give effect to an ICJ judgment.
  • However, this course of action depends on the concurrence of the Security Council’s Permanent Members (P5) for decision-making, which includes Pakistan’s all-weather friend China. There are several problems with this method of enforcement.
  • First, a judgement against one of the five permanent council members or its ally countries can be vetoed by that member.
  • China, a member of the Security Council, can veto the Jadhav case order in favour of Pakistan.
  • Second, the Security Council can always refuse to intervene and then there is no way to enforce the judgement.
  • Third, a coercive measure by the Security Council can be adopted only if international peace and security are at stake. The Security Council has never done that so far.
  • Though ICJ decisions are final and without appeal, India can approach the court again to:
    • Interpret the judgment, should India and Pakistan differ on its meaning and scope, and
    • To revise it, if new and crucial facts are discovered by India.

Way forward:

  • Once India is given free and fair consular access, it can seek to equip Jadhav with the best possible legal defense under Pakistan’s laws.
  • Ties between the two countries have been at a low since the Pulwama attack. After India’s Article 370 abrogation, new hostilities have developed. The official talks have been stalled since 2013. Pakistan by holding a fair trial can ease the tensions between India-Pakistan.
  • If a Pakistani civilian court reviews thew case, Jadhav may be provided a defence counsel of his choice.
  • Iran’s cooperation will be required to prove that he was in fact, kidnapped from Iran. It has to be proven that Kulbhushan jadhav was living in Iran before being kidnapped. If the defence can prove that he was indeed in Iran, then Tehran could ask for custody to prosecute on the charge of a false passport.
  • If Pakistan refuses to follow ICJ verdict, then India could suspend diplomatic relations, retaliate through sanctions, and push for public censure against Pakistan’s actions at the international stage. These tools at India’s disposal must be used cautiously, so as to not create friction between the two nations.
About International Court of Justice (ICJ)

·         It is the principal judicial organ of the United Nations (UN), located in Hague, Netherlands

·         It is composed of 15 judges who are elected for the term of nine years, by the UN General Assembly and the UN Security Council.

·         The elected judges form part of the list of people nominated by the national groups in the Permanent Court of Arbitration.

·         ICJ acts as a World Court and is the principal legal organ body of the UN. The court’s jurisdiction is two-fold

o   Contentious Cases

o   ICJ, in accordance with International Law, settles the disputes of legal nature that are submitted to it by states.

o   Advisory Opinions

o   Advisory Procedure is available to five UN Organs, fifteen Specialized Agencies, and one Related Organization.

·         Only states may apply to and appear before the ICJ. International Organizations, other authorities, and private individuals are not entitled to institute proceedings before the court.

deepak mehto
By deepak mehto October 9, 2019 18:17