Kulb­hushan Jad­hav Case: The Un­ex­plored Side

Libertatem Magazine - - Contents -

May 2017 has been the most cel­e­brated month out of the ini­tial months of the year by the In­dian pop­u­lace. The rea­son for the cel­e­bra­tion is in it­self a huge mo­ment of pride for ev­ery In­dian ci­ti­zen, as In­dia suc­cess­fully won the case against Pak­istan be­fore the le­gal or­gan of the United Na­tions, i.e., The In­ter­na­tional Court of Jus­tice. How­ever, there were a lot more ar­eas which were prob­a­bly left un­ex­plored with re­spect to the tech­ni­cal­i­ties of In­ter­na­tional Law. To put it in sim­pler words, Pak­istan had a very strong case against In­dia and would have eas­ily won had it not been for the in­com­pe­tence and the in­ca­pa­bil­ity of the Pak­istani coun­sels and agents to con­vince the bench. The present ar­ti­cle is just a re­flec­tion of the le­gal point of view from both the sides and what the ap­proach should have been to­wards the whole sit­u­a­tion.

Brief Facts

The case re­volves around an In­dian ci­ti­zen, named Kulb­hushan Jad­hav, who was cap­tured by the Pak­istani Counter-ter­ror­ism forces on the Ira­nian Bor­der for the charges of sab­o­tage and ter­ror­ism. It was claimed by the Pak­istani army that Mr. Jad­hav hap­pens to be an agent, work­ing for the In­tel­li­gence Wing of the

Repub­lic of In­dia, i.e., The Re­search and Anal­y­sis Wing (R.A.W.). He was cap­tured by the Pak­istani forces from a place called Sar­a­van, which is in close prox­im­ity to the Pak­istan-iran Bor­der. Af­ter a cou­ple of days of his ar­rest, the In­dian High Com­mis­sioner to Pak­istan was sum­moned by the Pak­istani Author­i­ties with re­spect to Jad­hav’s il­le­gal en­try into the Pak­istani ter­ri­tory and his ac­tive in­volve­ment in sub­ver­sive and ter­ror­ism ac­tiv­i­ties in Karachi and Balochis­tan, which was fol­lowed by a press re­lease re­lated to the mat­ter. In­dia, in re­sponse to the Pak­istani state­ments, clearly de­nied Jad­hav’s con­nec­tion with the In­dian Govern­ment on the ground that he re­tired from the Navy in 2002. How­ever, the most shock­ing in­ci­dent was the de­nial of con­sular ac­cess to In­dia, which fur­ther be­came the ground for fil­ing of the pe­ti­tion by In­dia. Af­ter a few days, the Pak­istani author­i­ties re­leased a video in which Jad­hav was seen con­fess­ing his crime and ad­mit­ting that he is an op­er­a­tive of the R.A.W. Pak­istan re­fused to ex­tra­dite Jad­hav to In­dia un­der any cir­cum­stances, to which In­dia took a se­ri­ous note stat­ing that there was an ev­i­dent de­vi­a­tion from the in­ter­na­tional prac­tice from the side of Pak­istan with re­spect to the treat­ment given to for­eign na­tion­als in its cus­tody. On April 10, 2017, the Pak­istani Mil­i­tary Court found Jad­hav guilty of sab­o­tage and es­pi­onage and ac­cord­ingly an­nounced that he would be hanged. The de­ci­sion was fol­lowed by In­dia slam­ming the de­ci­sion and send­ing a de­marche to the Pak­istani High Com­mis­sioner to In­dia, Mr. Ab­dul Ba­sit, stat­ing that the Pak­istani Author­i­ties had kid­napped Jad­hav and the en­tire trial against him is ridicu­lous as there is no ev­i­dence against him. This move re­sulted in ten­sions be­tween the two South Asian coun­tries. In­dia sub­se­quently ap­proached the In­ter­na­tional Court of Jus­tice seek­ing pro­vi­sional mea­sures to be taken in this case.

ICJ’S In­ter­ven­tion

The pres­i­dent of the ICJ, His Ex­cel­lency Ronny Abra­ham, an­nounced that the Court, un­der the power given to it by Ar­ti­cle 74(4) of the ICJ Rules, had asked Pak­istan not to take any sort of ac­tion with re­spect to Jad­hav’s ex­e­cu­tion.

Ar­ti­cle 74 of the ICJ Rules of Court, 1978 states that:1. A re­quest for the in­di­ca­tion of pro­vi­sional mea­sures shall have pri­or­ity over all other cases.

2. The Court, if it is not sit­ting when the re­quest is made, shall be con­vened forth­with for the pur­pose of pro­ceed­ing to a de­ci­sion on the re­quest as a mat­ter of ur­gency.

3. The Court, or the Pres­i­dent if the Court is not sit­ting, shall fix a date for a hear­ing which will af­ford the par­ties an op­por­tu­nity of be­ing rep­re­sented at it. The Court shall re­ceive and take into ac­count any ob­ser­va­tions that may be pre­sented to it be­fore the clo­sure of the oral pro­ceed­ings. 4. Pend­ing the meet­ing of the Court, the Pres­i­dent may call upon the par­ties to act in such a way as will en­able any or­der the Court may make on the re­quest for pro­vi­sional mea­sures to have its ap­pro­pri­ate ef­fects.

As per the other pro­vi­sions of this Ar­ti­cle, the Court re­alised that the case per­tains to an ur­gent sit­u­a­tion and hence, de­cided to con­duct the pub­lic hear­ing on May 15, 2017. At the pub­lic hear­ing which took place in the Peace Palace, The Hague, In­dia re­quested the fol­low­ing along with its ap­pli­ca­tion for fil­ing of the case:1. “a re­lief by way of im­me­di­ate sus­pen­sion of the sen­tence of death awarded to the ac­cused. 2. a re­lief by way of resti­tu­tion in in­te­grum by declar­ing that the sen­tence of the mil­i­tary court ar­rived at, in brazen de­fi­ance of the Vienna Con­ven­tion rights un­der Ar­ti­cle 36, par­tic­u­larly Ar­ti­cle 36, para­graph 1 (b), and in de­fi­ance of el­e­men­tary hu­man rights of an ac­cused which are also to be given ef­fect as man­dated un­der Ar­ti­cle 14 of the 1966 In­ter­na­tional Covenant on Civil and Po­lit­i­cal Rights, is vi­ola­tive of in­ter­na­tional law and the pro­vi­sions of the Vienna Con­ven­tion, and

3. Re­strain­ing Pak­istan from giv­ing ef­fect to the sen­tence awarded by the mil­i­tary court, and di­rect­ing it to take steps 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 an­nul the de­ci­sion, then this Court to de­clare the de­ci­sion il­le­gal be­ing vi­ola­tive of in­ter­na­tional law and treaty rights and re­strain Pak­istan from act­ing in vi­o­la­tion of the Vienna Con­ven­tion and in­ter­na­tional law by giv­ing ef­fect to the sen­tence or the con­vic­tion in any man­ner, and di­rect­ing it to re­lease the con­victed In­dian Na­tional forth­with.” Ar­ti­cle 36(1) of the Con­ven­tion states:1. “With a view to fa­cil­i­tat­ing the ex­er­cise of con­sular func­tions re­lat­ing to na­tion­als of the send­ing State: • 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 with re­spect to com­mu­ni­ca­tion with and ac­cess to con­sular of­fi­cers of the send­ing State; • if he so re­quests, the com­pe­tent author­i­ties of the re­ceiv­ing State shall, with­out de­lay, in­form the con­sular post of the send­ing State if, within its con­sular dis­trict, a na­tional of that State is ar­rested or com­mit­ted to prison or to cus­tody pend­ing trial or is de­tained in any other man­ner. Any com­mu­ni­ca­tion ad­dressed to the con­sular post by the per­son ar­rested, in prison, cus­tody or de­ten­tion shall be for­warded by the said author­i­ties with­out de­lay. The said author­i­ties shall in­form the per­son con­cerned with­out de­lay of his rights un­der this sub­para­graph;

• Con­sular of­fi­cers shall have the right to visit a na­tional of the send­ing State who is in prison, cus­tody or de­ten­tion, to con­verse and cor­re­spond with him and to ar­range for his le­gal rep­re­sen­ta­tion. They shall also have the right to visit any na­tional of the send­ing State who is in prison, cus­tody or de­ten­tion in their dis­trict in pur­suance of a judge­ment. Nev­er­the­less, con­sular of­fi­cers shall re­frain from tak­ing ac­tion on be­half of a na­tional who is in prison, cus­tody or de­ten­tion if he ex­pressly op­poses such ac­tion.” Now, as per the pro­vi­sions laid down in this Ar­ti­cle, it is manda­tory for the host state to grant the con­sular of­fi­cials the right to visit and talk to any per­son of the send­ing state who is in cus­tody, prison or de­ten­tion. In­dia claims that this pro­vi­sion has been vi­o­lated by the Pak­istani author­i­ties as the In­dian of­fi­cials were de­nied con­sular ac­cess to visit Kulb­hushan Jad­hav while he was in cus­tody. As re­gards the ques­tion as to whether the In­ter­na­tional Court of Jus­tice has ju­ris­dic­tion to ad­ju­di­cate upon the case, In­dia very smartly chose to ap­proach the court un­der the am­bit of Art. 36(1) of the Rome Statute of the In­ter­na­tional Court of Jus­tice in­stead of seek­ing re­lief un­der Art. 36(2), be­cause of the strong reser­va­tions that In­dia has per­tain­ing to tak­ing dis­putes to a third party. Ar­ti­cle 36(1) of the Statute states:“The ju­ris­dic­tion of the Court com­prises all cases which the par­ties re­fer to it and all mat­ters spe­cially pro­vided for in the Char­ter of the United Na­tions or in treaties and con­ven­tions in force.”

Mak­ing an ap­proach un­der this pro­vi­sion means that In­dia in­voked Ar­ti­cle 1 of the Op­tional Pro­to­col to the Vienna Con­ven­tion on Con­sular Re­la­tions, to which both In­dia and Pak­istan are State Par­ties. Ar­ti­cle 1 of the Op­tional Pro­to­col states that:- “Dis­putes aris­ing out of the in­ter­pre­ta­tion or ap­pli­ca­tion of the Con­ven­tion shall lie within the com­pul­sory ju­ris­dic­tion of the In­ter­na­tional Court of Jus­tice and may ac­cord­ingly be brought be­fore the Court by an ap­pli­ca­tion made by any party to the dis­pute be­ing a Party to the present Pro­to­col.” This clearly forms the le­gal ba­sis of Court’s ju­ris­dic­tion in the mat­ter, how­ever, this does not take away Pak­istan’s chance to raise ob­jec­tions dur­ing the pre­lim­i­nary phase with re­spect to the court’s ju­ris­dic­tion, some­thing which was ab­sent in the ac­tual sce­nario. The pro­ceed­ings that took place ini­tially were con­ducted to take pro­vi­sional mea­sures so that the im­me­di­ate in­ter­ests of both the par­ties were ful­filled. How­ever, af­ter that was over, and prior to the com­mence­ment of the mer­its phase of the case, Pak­istan did have a very strong chance of con­test­ing against the sub­stan­tive ju­ris­dic­tion of the court dur­ing the pre­lim­i­nary ob­jec­tion phase. But the fact that there is a pres­ence of direct ju­ris­dic­tion clause in the Op­tional Pro­to­col, a low thresh­old and an ur­gency, the court ac­cepted In­dia’s con­tention that it has a sub­stan­tive ju­ris­dic­tion over the mat­ter. Va­lid­ity of the Agree­ment on Con­sular Ac­cess The best part of the en­tire case was not the ju­ris­dic­tion phase, but the rise of a com­pli­ca­tion dur­ing the merit phase. In­dia’s en­tire case was based on the ar­gu­ment of the vi­o­la­tion of the Vienna Con­ven­tion by Pak­istan, how­ever, the Pak­istani agents strongly re­lied on the Agree­ment on Con­sular Ac­cess, signed be­tween the two coun­tries in May, 2008, dur­ing the Com­pos­ite Di­a­logue which took place in Is­lam­abad, Pak­istan. This bi­lat­eral agree­ment was signed in fur­ther­ance of the aim of pro­vid­ing hu­mane treat­ment to na­tion­als of ei­ther coun­try. The agree­ment has cer­tain pro­vi­sions which al­low both the na­tions to no­tify each other in case their ci­ti­zen is ar­rested in the other coun­try and al­low­ing con­sular ac­cess for the same. How­ever, clause (vi) of the Agree­ment states that:- “In case of ar­rest, de­ten­tion or sen­tence made on po­lit­i­cal or se­cu­rity grounds, each side may ex­am­ine the case on its mer­its.” The pres­ence of this par­tic­u­lar clause acts as an ex­cep­tion to the Vienna Con­ven­tion on Con­sular Re­la­tions, 1963, and even­tu­ally gives dis­cre­tion to both the states to deny con­sular ac­cess if the mat­ter per­tains to its se­cu­rity. This is ex­actly what Pak­istan did. It de­nied In­dia con­sular ac­cess be­cause ac­cord­ing to them, Kulb­hushan Jad­hav was a R.A.W. agent who il­le­gally en­tered into Pak­istani ter­ri­tory to carry out sub­ver­sive ac­tiv­i­ties. How­ever, In­dia tried to do away from this Bi­lat­eral Agree­ment on the ground that the said agree­ment is not reg­is­tered with the United Na­tions, and hence, can­not be re­lied upon. And as per Ar­ti­cle 102(2) of the Char­ter of the United Na­tions, no party to any such treaty or in­ter­na­tional agree­ment which has not been reg­is­tered in ac­cor­dance with the pro­vi­sions of para­graph 1 of Ar­ti­cle 102 may in­voke that treaty or agree­ment be­fore any or­gan of the United Na­tions. But this does not ren­der the Bi­lat­eral Agree­ment in­valid at all. Both the par­ties, es­pe­cially Pak­istan, still had a full chance of get­ting it reg­is­tered with the United Na­tions so that the va­lid­ity isn’t ques­tioned. The In­ter­na­tional Court of Jus­tice, in the Maritime De­lim­i­ta­tion and Ter­ri­to­rial Ques­tions be­tween Qatar and Bahrain, did not ob­ject to the reg­is­tra­tion ap­pli­ca­tion which was filed by the Qatari author­i­ties af­ter the com­mence­ment of the case. It even stated that non-reg­is­tra­tion or late reg­is­tra­tion, on the other hand, does not have any con­se­quence on the ac­tual va­lid­ity of the agree­ment, which re­mains no less bind­ing upon the par­ties. So even though the ICJ judge­ments are not bind­ing upon the ICJ it­self, they def­i­nitely hold a lot of per­sua­sive rel­e­vance.

To in­ter­pret it in a more fea­si­ble man­ner, it is im­por­tant for us to con­sider the Vienna Con­ven­tion on the Law of Treaties, which is an in­te­gral doc­u­ment when it comes to the in­ter­pre­ta­tion of the treaties. First of all, Pak­istan was well within its rights to de­cide against Kulb­hushan Jad­hav on the ba­sis of mer­its and deny­ing con­sular ac­cess to the In­dian of­fi­cials as per clause (vi) of the Bi­lat­eral Agree­ment. By ap­ply­ing Ar­ti­cle 30(3) and 30(4) of the VCLT in the present sit­u­a­tion, it may be con­cluded that there was no ex­press obli­ga­tion upon Pak­istan to al­low the con­sular ac­cess in the first place. Sec­ondly, the ap­pli­ca­tion of Ar­ti­cle 26 of the VCLT be­comes nec­es­sary at an­other im­por­tant junc­ture. Ar­ti­cle 26 states:- “Ev­ery treaty in force is bind­ing upon the par­ties to it and must be per­formed by them in good faith.” The In­ter­na­tional Court of Jus­tice, in the Gab­cikovo-nagy­maros case and sev­eral other cases, has held that the in­ten­tion of the state par­ties at the time of the con­clu­sion of the treaty must pre­vail ev­ery time. Hence, the fact that there was a non-reg­is­tra­tion of the Bi­lat­eral Agree­ment be­comes ir­rel­e­vant as both the coun­tries have been re­ly­ing upon this doc­u­ment since many years, and the in­ten­tion was also bonafide. Ad­di­tion­ally, a closer scru­tiny of the work­ings of Ar­ti­cle 102 of the Char­ter of the United Na­tions is of great sig­nif­i­cance. The word that has been used is ‘may’ in­stead of ‘shall’, thus not mak­ing it oblig­a­tory or manda­tory upon the party in­vok­ing the agree­ment in the first place. Un­for­tu­nately, even though there were a lot of ar­gu­ments from the Pak­istani side which would have led to a strong case against In­dia, and which would also have ended the case at the ju­ris­dic­tion phase it­self, none of these were ac­tu­ally ar­gued and con­tended by the Pak­istani coun­sels and agents be­fore the Hon’ble court. This shows the lack of com­mit­ment and de­ter­mi­na­tion from the side of Pak­istan with re­spect the en­tire case. In my view, In­dia never would have won it had there been a proper in­ter­pre­ta­tion of in­ter­na­tional law and other rel­e­vant things, but as they say, every­thing that hap­pens is writ­ten in our des­tinies and every­thing hap­pens for good. May be, the good has al­ready hap­pened, be­cause at the end of the day, a man’s life is saved, and who knows, may be God has some­thing for us ly­ing in the fu­ture as well!

At In­dia’s Urg­ing, ICJ Re­quests Pak­istan to Hold Back Ex­e­cu­tion of Kulb­hushan Jad­hav

Jad­hav Trial ‘Far­ci­cal’ Says In­dia, In­dian Case ‘Theatre’ Says Pak

In­dia’s del­e­ga­tion waits for judges to en­ter the World Court in The Hague

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