ICJ holds Pakistan accountable in Jadhav case

The International Court of Justice (ICJ), on July 17, 2019, pronounced its judgment in the Kulbhushan Jadhav Case (India v. Pakistan) at The Hague. The case represents India’s zealous attempt to alter Jadhav’s fate, through wellcrafted usage of international law. India and Pakistan dispute the circumstances around which Jadhav was taken into Pakistan’s custody. India maintains that Jadhav, a former naval officer, was kidnapped from Iran, where he was carrying out business. Pakistan contends that Jadhav was arrested in Balochistan, near the Iranian border, after illegally entering Pakistani territory. Weeks after his arrest, Pakistan raised the issue with the Indian High Commissioner and released a video in which Jadhav appears to confess his involvement in acts of espionage and terrorism in Pakistan at the behest of India’s foreign intelligence agency, R&AW. Subsequently, a First Information Report was registered against Jadhav. He was tried before a Field General Court Martial (kangaroo court) and, ultimately, sentenced to death. During the entire process, Jadhav was denied consular access and wasn’t informed of his rights under the Vienna Convention on Consular Relations. India moved the ICJ against these actions of Pakistan and obtained an interim stay against the execution of Jadhav, post which the case was heard on merits.

Reacting to the verdict, both Indian and Pakistani media and diplomats declared themselves as winners, but that is not the case. The balanced judgement gives India time, to get consular access and legal aid for Jadhav's case review.

For India, other major takeaways were: ·That it possesses jurisdiction to adjudicate the dispute;

· That India’s application is admissible; · That Pakistan’s actions have violated Article 36 of the Vienna Convention on three counts: Pakistan failed to inform India, without delay, of Jadhav’s arrest and detention; Pakistan failed to inform Jadhav of his rights under the Vienna Convention; Pakistan repeatedly declined Indian consular officers access to Jadhav.

·That Pakistan should immediately inform Jadhav of his rights under the Vienna Convention and Consular Officers of India be provided access to Jadhav without any delay.

· That Pakistan should provide effective review and reconsideration of the conviction and sentence of Jadhav.

The Pakistani side, however, points out that the Court did not grant India’s prayer that Jadhav’s death sentence be suspended, the military court decision be annulled, and he be released from Pakistan’s custody. The Court inherently lacked jurisdiction to grant such a remedy. It reasoned its jurisdiction is limited to the interpretation and application of the Vienna Convention. During the course of arguments, Pakistan fought tactfully to relieve itself of its obligations under the Vienna Convention. It claimed that the freedom to communicate (including consular communication) was limited in matters of espionage. The Court rejected this contention outright. It noted, if this was held to be true, then any receiving state could deny consular access, alleging involvement in espionage activities. Pakistan argued that its issues of consular engagement with India were governed by the agreement it entered into with India in 2008. The court rejected such contention and said the 2008 Agreement was not in derogation of Article 36 of the Vienna Convention but in addition to it. The 2008 Agreement does not take away the rights provided under the Vienna Convention, but supplements it.

While the Court asked Pakistan to effectively review and reconsider Jadhav’s conviction, it noted that Pakistan’s Constitution has been interpreted to provide severely narrow grounds for a review of legal decisions pertaining to the armed forces. Clemency proceedings available to Jadhav do not provide sufficient review mechanism as far as his case is concerned. Considering Pakistan’s submission, that right to a fair trial is absolute in Pakistan, the Court noted that the review process must be effective. The special emphasis on the word effective denotes ICJ’s regard for the fact that the review process must be fair and genuine.

Although this decision does not grant India’s ultimate prayers, it categorically notes the international wrongful acts committed by Pakistan. Considering the on-going international disputes between India and Pakistan, it would be prudent for Pakistan to suspend the death sentence and release Jadhav as a goodwill gesture. India should also act in a restrained manner and find a diplomatic solution for the impasse, because only that can ensure Jadhav’s early release.

For India, other major takeaways were: ·That it possesses jurisdiction to adjudicate the dispute; · That India’s application is admissible; · That Pakistan’s actions have violated Article 36 of the Vienna Convention on three counts: Pakistan failed to inform India, without delay, of Jadhav’s arrest and detention; Pakistan failed to inform Jadhav of his rights under the Vienna Convention; Pakistan repeatedly declined Indian consular officers access to Jadhav