The International court of Justice on Jadhav Case and the precedence set for India and Pakistan

  Co-authored By Madhav Grover and Manasvi Hemmige Sathish
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Introduction

Mr. Kulbhushan Sudhir Jadhav, a Retired Indian Navy Officer, was arrested by Pakistani authorities in march 2016 and the location of and the reason for his arrest is contested between both parties i.e. India and Pakistan. He was sentenced to death by the Military Court of Pakistan, charged with ‘espionage and terrorism’ after a trial in April 2017. India approached the ICJ in May 2017 against the military court’s decision; the Human Rights Violations and Violation of the Vienna Convention by Pakistan.

Laws, conventions and Treaties considered

The Vienna convention, 1963 – details consular relations between countries, with the object of developing friendly relations among nations. The convention has been signed and ratified by both India and Pakistan, making it possible for the case to be taken up at the ICJ. Article 36 of the convention, specifically defines communication with nationals of the sending state, and therefore became the key stone of dispute at the ICJ. It lays out that the national of a state, who has been reprimanded by another state, has the right to consular access, while adding a caveat that such a right should be exercised in conformity of national laws[i].

Optional Protocol – concerning the compulsory settlement of disputes is the protocol that Pakistan referred to in its objections, defines means for the compulsory settlement of disputes. Articles II and III define that parties to a dispute can resort not to the ICJ, but to an arbitrary tribunal or adapt a conciliation procedure[ii]. However, as the court later mentioned in its judgement, these are not preconditions to be met before a case can be admitted at the ICJ.

The Verdict

The International Court of Justice at the Hague, Netherlands gave its verdict on the Jadhav case filed by India against Pakistan, on 17 July 2019[iii].

The court unanimously agreed that it has jurisdiction, on the basis of Article 1 of the optional protocol concerning compulsory settlement of disputes under Vienna convention, to entertain application filed by the Republic of India on 8 May 2017.

The court rejected the objections made by Pakistan, regarding the admissibility of the application made by India by fifteen votes to one. The court also found Pakistan to be in breach of their obligations under Article 36 of the Vienna Convention on Consular Relations by fifteen votes to one under following aspects: –

  1. Pakistan not informing Mr. Kulbhushan Sudhir Jadhav, without delay, of his rights under the act
  2. Pakistan not notifying the appropriate consular post of India without delay of the detention of Mr. Kulbhushan Sudhir Jadhav and thereby depriving India of its right to render assistance provided for by the Act.
  3. Pakistan depriving India of its right to communicate with and have access to Mr. Kulbhushan Sudhir Jadhav, to visit him in detention and to arrange for his legal representation as provided by the Act.
  4. Pakistan to inform Mr. Kulbhushan Sudhir Jadhav without delay his rights and to provide Indian consular officers to access him as provided by the Act.
  5. Pakistan to provide, by means of its own choosing, effective review and reconsideration of the conviction and sentence of Mr. Kulbhushan Sudhir Jadhav, so as to ensure that full weight is given to the effect of violations as given under the Act[iv].

The Court declared continued stay of execution constitutes an indispensable condition for the effective review and reconsideration of the conviction and sentence of Mr. Kulbhushan Sudhir Jadhav[v].

Observations

The court did not reflect upon the release of Mr. Jadhav but gave an anecdote on the validity of military court proceedings in this case. Paragraph 135 of the Judgment clearly stated that though India has asked for a declaration on the sentence being handed down to be violative of International Law. However, the court was of the opinion that the constitution of the tribunal has limited jurisdiction for interpretation and the enforcement of the Vienna convention. Its jurisdiction does not extend to claims based on other rules of International Law[vi].

The court did not uphold India’s submission of it being entitled as restitutio in integrum; its request to annul the decision of the military court; to restrain Pakistan from giving effect to the sentence or conviction; its further request to direct Pakistan to take steps to annul the decision of the military court and to facilitate Mr. Jadhav’s safe passage to India[vii].

The court emphasized quite extensively on the review and reconsideration of the conviction and sentence of Mr. Jadhav. This can be seen in the observations made by the court as mentioned from Paragraph 139 to Paragraph 147 of the verdict. The court emphasizes that the review and reconsideration of Mr. Jadhav’s case to be effective and must ensure that full weight is given to the effect of the violation of rights set forth in Article 36 of the Vienna convention and also guarantee that the violation and the possible prejudice caused by the violation to be fully examined. The court specifically observes various existing laws in Pakistan and their implications on this specific case. The court also observes that the article 199, paragraph 3, of the constitution of Pakistan as interpreted by the supreme court of Pakistan, limits the review of a person who is subject to any law relating the armed forces of Pakistan, including Pakistan Army Act of 1952 and due to various other provisions set forth by the Pakistan’s civilian court makes it unclear whether judicial review of a decision of a military court is possible on the grounds of violation of the Article 36 of the Vienna convention. The court also mentions decision of the Peshawar High Court in 2018, Indicating the grounds on which the civilian courts can interfere with decisions taken by a military court. The court also points out the respect for principles of the right to fair trial of cardinal importance in any review and reconsideration[viii]. The court found it to be imperative for Pakistan to fully examine and properly address the implications of the breach on Article 36 of the Vienna convention[ix].

The court also noted that the Obligation to provide effective review and reconsideration is an “Obligation of Result” which “must be performed unconditionally”. Consequently, Pakistan shall take all measures to provide for effective review, including, if necessary, by enacting appropriate legislation[x].

Contentious Points between India and Pakistan

There were various objections of India with regard to how Pakistan dealt with the case which were as following: –

  1. Pakistan failed to inform India, without delay, of the arrest and/or detention of Mr. Jadhav. It alleged that Mr. Jadhav was arrested on 3rd march 2016 but were informed by Pakistani Government on march 25th 2016. India claimed that Jadhav was arrested from Chabahar region in Iran where he had business interests whereas Pakistan claimed that he was arrested from Baluchistan region in Pakistan.
  2. Jadhav was declined the counselor access and Indian authorities were denied visits 16 times up till April 2017.
  3. Jadhav was not informed of his rights under the Vienna convention.
  4. The sentence of the Military Court to be in brazen defiance of the of the Vienna Convention and in defiance of elementary human rights of Jadhav, which are also to be given effect as mandated under Article 14 of the 1966 Covenant on Civil and Political Rights.
  5. Pakistan should be restrained from giving effect to sentence or conviction of Jadhav and facilitate safe passage for him to India; giving an alternative if Jadhav were not to be released, then Pakistan should be restrained from giving effect to sentence awarded by the military court and it should be taking steps to annul the decision and direct a trial under ordinary law before a civilian court. India also wanted to be entitled to restitutio in integrum (restoration to original condition)[xi].       

Pakistan’s objection to India’s plea at the International Court of Justice fell under 2 broad categories, admissibility of the case and applicability of the Vienna Convention. The objections raised to the admissibility of the case were the following:-

  1. ‘Abuse of Process’- by failing to consider ‘highly material facts’ and the constitutional right to plead that was not availed by India.
  2. ‘Abuse of Rights’– It argued that India violated various rights under international law by failing to provide evidence on his nationality and by failing to engage its repeated requests for assistance.
  3. ‘Unlawful conduct’- Pakistan referred to the clean hands doctrine on the principle of ‘“ex turpi causa [non oritur actio]’ (no action can arise from an illegal act), simply stating that India is responsible for Mr. Jadhav’s espionage and terrorist activities and therefore the case had to be inadmissible.
  4. Another bone of contention was the applicability of the Vienna convention to what Pakistan terms ‘a case of espionage’, all of which have been addressed in the judgement[xii].

Conclusion

The verdict has been hailed as a victory in both India and Pakistan, and the debate is sure to continue for some time. The spokesperson of the Pakistani armed forces and DG ISPR, Major General Asif Ghafoor called it ‘another February 27 for India’. The Minister of Foreign Affairs, Pakistan, Shah Mohammed Qureshi in a tweet said, ‘This is a victory for Pakistan’[xiii]Major newspapers in Pakistan such as Dawn, the Express Tribune have also celebrated the ‘triumph’. ‘Not too bad for Pakistan, pretty bad for India’[xiv], ‘Pakistan Vindicated at ICJ’ were some of the headlines in leading newspapers in Pakistan.

The Minister for External Affairs, India, Dr. S. Jaishankar in the Rajya Sabha said “The judgement is not only a vindication for India and Shri Jadhav, but all those who believe in the rule of law and the sanctity of the International Convention. The sentiments I expressed on this matter are those of the entire House – indeed of the entire nation”. Former Minister of Finance and Corporate Affairs, Arun Jaitley, mentioned in a blog titled ‘What After the ICJ Judgement in Jadhav Case?’ gives arguments against various claims made by Pakistan media justifying the notion of India’s Victory in the court[xv]. Major media outlets such as Indian express, India today etc. also reflected upon the Judgement being in favour of India.

However, a closer look at the judgement suggests that it is a legal victory for India. There could be implications of the verdict on the already strained bilateral relations between the two countries. A defeat on the International stage, on the grounds that the country failed to honour its agreements will tarnish Pakistan’s image globally. This verdict has brought the case in international spotlight and therefore any ill-conceived attempts by Pakistan to farcically try or execute Kulbushan Jadhav will receive strong international condemnation.

The Judgement also sets an important precedence for future proceeding of this nature, especially between India and Pakistan. The court hinted towards Pakistan to undertake self-introspection and look upon the ways to conduct an effective review and reconsideration with taking into account various grounds and observations made by the ICJ. A Case where International law, conventions and protocols are breached and Important evidence of forced alleged confessions in confinement are considered in front of a military court and the judgement given by it, cannot in practice meet the requirements laid by ICJ. There is also an emphasis on enacting new legislation, if necessary, which can be interpreted as the court pointing towards the direction of setting up a new forum for judicial review rather than the military court, but that responsibility has been left for Pakistan to undertake.

Kulbushan Jadhav’s acquittal and release is not guaranteed with the verdict, but Pakistan has been sent a warning signal that it cannot behave like a rogue state, with utter disregard to international rules and conventions. The Indian Government’s quick response, putting its diplomatic and legal might behind the case must be credited. As an immediate implication of the verdict, Pakistan has declared that it will provide consular access and inform Mr. Jadhav of his rights . However, the future remains uncertain and a permanent solution far from sight.

 

References

[i] Vienna Convention on Consular Relations (Vienna: Austria, 1963)
[ii] Optional Protocol Concerning the Compulsory Settlement of Disputes (Vienna: Austria, 1963)
[iii] International Court of Justice, Jadhav Case (India v. Pakistan), (Hague : Netherlands, 17 July 2019) 
[iv] Ibid.
[v] Ibid.
[vi] Ibid.
[vii] Ibid
[viii] Ibid
[ix] Ibid
[x] Ibid.
[xi] Ibid
[xii] Ibid
[xiii] First Post Staff, ‘Vindicated at ICJ’ : Pakistan’s news media hails international court’s verdict in Kulbhushan Jadhav case as ‘moral victory’, First Post, July 18 2019
[xiv] ‘Not too bad for Pakistan, pretty bad for India’ : Reactions pour in on ICJ ruling in Jadhav case, Dawn, July 18 2019.
[xv] Arun Jaitley, ‘What After the ICJ Judgement on Jadhav?’ :India, July 18 2019
United Nations, Vienna Convention on Consular Relations, ( Vienna : Austria, 1963)
International Court of Justice, Jadhav Case (India v. Pakistan), (Hague : Netherlands, 17 July 2019) 
Arun Jaitley, ‘What After the ICJ Judgement on Jadhav?’ :India, July 18 2019
Apurva Vishwanath, Reading ICJ verdict: How The Hague rebutted Pak’s key arguments, Indian Express, July 18 2019 
First Post Staff, 'Vindicated at ICJ': Pakistan news media hails international court's verdict in Kulbhushan Jadhav case as 'moral victory', First Post,  July 18 2019
Express Web Desk, Informed Kulbushan Jadhav on rights under the Vienna Convention, will be granted consular access: Pakistan, July 19 2019 
'Not too bad for Pakistan, pretty bad for India': Reactions pour in on ICJ ruling in Jadhav case, Dawn, July 18 2019.