ICJ VERDICT ON KULBHUSHAN JADHAV
After two years, two months and 10 days, the International Court of Justice (ICJ) has finally decided on the controversial case of Indian national Kulbhushan Sudhir Jadhav. Pakistan had taken him prisoner in 2016 and put him on death row on charges of espionage and terrorism.
India declared victory from the forecourt of the Peace Palace at The Hague, Netherlands, after officials stepped out of the Great Hall of Justice. The Indian delegation led by Deepak Mittal, joint secretary PAI (Pakistan, Afghanistan and Iran) at the ministry of external affairs, and also the agent at the ICJ for this case, was confident that India was on a strong footing on issues of violations of the international conventions.
Interestingly, both the Indian and Pakistani delegations stayed at The Hilton, unlike in February when both, in The Hague to make their submissions, ensured they were in separate hotels.
Officials privy to the case had earlier told india today that India was on a “strong wicket” based on the precedent set by the ICJ
in “consular access” cases. In the two cases cited by India—LaGrand (Germany vs USA) and Avena (Mexico vs USA)—the world court had decided in favour of the states that requested compliance with international obligations, including the Vienna Convention on Consular Relations (VCCR).
While the ICJ did not exceed its jurisdiction, the basic rights over which India had approached the world court were addressed. The ICJ ruled in India’s favour, concluding that Pakistan had breached Article 36 of the VCCR by denying consular access to Jadhav. “Pakistan is under an obligation to inform Mr. 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,” said the judgment.
Add to this the ICJ’s ruling on “review” and “reconsideration” of the conviction and sentence, and it’s a win-win for India, since the primary request was fair trial and access to legal aid and counsel. The court, however, added that Pakistan has to provide “by means of its own choosing”, effective review and reconsideration of the conviction and sentence. This is where Pakistan is claiming victory since they do not have to release Jadhav and can try him the way they wish. India will wait for Pakistan’s interpretation of this opinion, but whichever way they go, consular access will have to be granted.
Pakistan wanted to carve out a separate space to consider cases of espionage, by citing the 2008 bilateral agreement between India and Pakistan, but the court observed that bilateral agreements between nations do not overwrite the larger treaty. “Article 36 of the Convention expressly regulates the question of consular access to and communication with nationals of the sending state and makes no exception with regard to cases of espionage,” read out ICJ judge Abdulqawi Ahmed Yusuf.
The final and very important aspect of the verdict is the ICJ’s ruling on the death sentence. It declared that a “continued stay of execution constitutes an indispensable condition for the effective review and reconsideration of the conviction and sentence of Mr. Kulbhushan Sudhir Jadhav”. This effectively means that Jadhav cannot be hanged until a fair trial is carried out in Pakistan.
The judgment of the ICJ is final with no room for review. However, some countries, including the US and China, both permanent members of the United Nations Security Council (UNSC), have been known to violate the rulings of the world court. The UNSC is the only other body where such violations may be raised by its permanent members. But since Pakistan and India are not, they are expected to simply abide by any judgment the ICJ pronounces.
The ICJ concluded that Pakistan had breached Article 36 of the Vienna Convention on Consular Relations