ICJ stays execution of Indian spy Jadhav pending final decision

• The court says because Jadhav is under death sentence and might be executed is sufficient to demonstrate existence of risk of irreparable prejudice to rights claimed by India
• ‘In the view of the Court, therefore, it appears that the rights alleged by India are plausible’

The International Court of Justice (ICJ) on Thursday ordered Pakistan to halt the execution of Indian spy Kulbhushan Jadhav until a final decision in the proceedings.

“Pakistan shall take all measures at its disposal to ensure that Jadhav is not executed pending the final decision in these proceedings,” ordered Judge Ronny Abraham, president of the court, as he announced the decision.

The ICJ rejected Pakistan’s stance and stated that the court had jurisdiction and would hear the case and seek arguments from both parties.

Judge Abraham stated that the ICJ had prima facie jurisdiction under Article 1 of the Optional Protocol to the Vienna Convention. The court further observed that the existence of a 2008 bilateral agreement on consular relations between India and Pakistan does not change its conclusion on the issue of jurisdiction.

“Pakistan shall inform the court of all measures taken in implementation of the present order. The court also decides that, until it has given its final decision, it shall remain seised of the matters which form the subject-matter of this order,” the order stated

Explaining its reasoning, the court began by establishing that based on the initial facts, it has jurisdiction over the case.

According to the judgment, it then turned to the question whether the rights alleged by India are at least plausible and decided in the affirmative.

The court then focused on the issue of the link between the rights claimed and the provisional measures requested, and observed that a link exists between the rights claimed by India and the provisional measures being sought.

The court then examined whether there is a risk of irreparable prejudice and urgency. It considered that the mere fact that Jadhav is under a death sentence and might, therefore, be executed is sufficient to demonstrate the existence of a risk of irreparable prejudice to the rights claimed by India. The court further observed that Pakistan has indicated that any execution of Jadhav would probably not take place before August 2017. “This means that there is a risk that an execution could take place at any moment thereafter, before the court has given its final decision,” it stated, adding that Pakistan has [also] not given any assurance that Jadhav will not be executed before the court has rendered its final decision. “In those circumstances, the court is satisfied that there is urgency in the present case,” it stated.

The ICJ on Monday had conducted hearing into India’s petition demanding staying of Pakistan’s death sentence to Kulbhushan Jadhav, a RAW operative and on-duty Indian navy officer who was apprehended from Balochistan in a counter-intelligence operation in March 2016.

Pakistan’s counsel, Khawar Qureshi, presented the country’s stance in the ICJ on the death sentence handed to Jadhav, contending that according to the Vienna Convention, the case cannot be heard in the ICJ.

“India has not provided any evidence to rebut that Jadhav is a terrorist,” Qureshi informed the court, moving it to turn down India’s request.

REASONING OF THE COURT:

In a press release posted on the ICJ’s website, the court provided its reasoning for the order it had issued.

“The Court begins by considering whether it has jurisdiction prima facie to hear the case. It recalls that India seeks to ground its jurisdiction in Article I of the Optional Protocol to the Vienna Convention, which provides that the Court has jurisdiction over “[d]isputes arising out of the interpretation or application of the [Vienna] Convention”.

“In this regard, the Court notes that the Parties do indeed appear to have differed, and still differ today, on the question of India’s consular assistance to Mr Jadhav under the Vienna Convention.

“It further notes that the acts alleged by India […] appear to be capable of falling within the scope of the Convention. In the view of the Court, this is sufficient to establish that it has prima facie jurisdiction under Article I of the Optional Protocol.

“The Court further observes that the existence of a 2008 bilateral Agreement between the Parties on consular relations does not change its conclusion on jurisdiction.

“The Court then turns to the question whether the rights alleged by India are at least plausible. It observes that the rights to consular notification and access between a State and its nationals, as well as the obligations of the detaining State to inform the person concerned without delay of his rights with regard to consular assistance and to allow their exercise, are recognized in Article 36, paragraph 1, of the Vienna Convention, and that India has alleged violations of this provision.

In the view of the Court, therefore, it appears that the rights alleged by India are plausible.

“The Court then focuses on the issue of the link between the rights claimed and the provisional measures requested. It considers that the measures requested are aimed at ensuring that the rights contained in Article 36, paragraph 1, of the Vienna Convention, are preserved.

“Therefore, a link exists between the rights claimed by India and the provisional measures being sought.

“The Court then examines whether there is a risk of irreparable prejudice and urgency. It considers that the mere fact that Mr Jadhav is under a death sentence and might, therefore, be executed is sufficient to demonstrate the existence of a risk of irreparable prejudice to the rights claimed by India.

“The Court further observes that Pakistan has indicated that any execution of Mr Jadhav would probably not take place before the month of August 2017. This means that there is a risk that an execution could take place at any moment thereafter, before the Court has given its final decision in the case.

“The Court also notes that Pakistan has given no assurance that Mr Jadhav will not be executed before the Court has rendered its final decision.

“In those circumstances, the Court is satisfied that there is urgency in the present case.

“The Court concludes by indicating the following measures:

“Pakistan shall take all measures at its disposal to ensure that Mr Jadhav is not executed pending the final decision in these proceedings and shall inform the Court of all the measures taken in implementation of the present Order.

“The Court also decides that, until it has given its final decision, it shall remain seised of the matters which form the subject-matter of this Order.”

PAKISTAN’S ARGUMENT:

The arguments for Pakistan had been presented to the court on Monday in an emergency hearing swiftly organised on India’s appeal.

Ambassador Moazzam Ahmad Khan, Syed Faraz Hussain and Dr Muhammad Faisal were present at the Peace Palace as members of Pakistan’s legal team.

Khawar Qureshi led Pakistan’s arguments, whereas Asad Rahim Khan and Joseph Dyke were present on Pakistan’s behalf for the proceedings.

Pakistani representatives had reminded the court that Jadhav “has confessed to having been sent by India to wage terror on the innocent civilians and infrastructure of Pakistan”.

They had also argued that, according to the Vienna Convention, the court had no jurisdiction to hear such a case.

They said the self-confessed Indian spy was sentenced to death after fulfilling all necessary legal procedures and that he was also given legal counsel to defend the allegations against him.

Qureshi had argued that the ICJ is not a criminal court and cannot decide such type of cases relating to national security.

He further appealed to the court to dismiss the Indian application, saying that “there is no agency”.

The counsel for Pakistan had argued that the provisions of the Vienna Convention do not apply to a “spy involved in terror activities”.

Qureshi said that Jadhav “is a terrorist” and “India invoked the jurisdiction of this court improperly.”

“This court exists to ensure that states engage in peaceful resolution of disputes. This court does not exist for time-wasting and political grandstanding,” he maintained.

“India’s allegation regarding the kidnapping of its spy is not true and he [Jadhav] was arrested by Pakistani forces from Balochistan,” he maintained.

INDIA’S RESPONSE:

On the other hand, lawyers for New Delhi had urged the ICJ to halt the execution, denying Jadhav was a spy. India on Monday accused Pakistan of “egregious violations of the Vienna convention” by denying him access to legal counsel and consular visits, and refusing to reveal the charge sheet against him.

Jadhav was “an innocent Indian national, who, incarcerated in Pakistan for more than a year on concocted charges … has been held incommunicado… and faces imminent execution,” Indian lawyer Deepak Mittal told the tribunal on Monday.

Mittal described the charges against Jadhav as ‘concocted’ and his trial as ‘farcical’.

STATUS QUO BEING MAINTAINED:

After the order was announced, Attorney General Ashtar Ausaf reasoned that the ICJ had directed for “the status quo [to] be maintained in the case”.

“The court has clearly underscored that the provisional measures are without prejudice to the final determination of the merits and jurisdiction of the case,” he pointed out in a written statement. “The provisional measures are a procedural process only to enable the court to have full consideration at a later hearing,” he said.

“These measures have no bearing whatsoever on the final decision of the Court,” he added, meaning that this was only a temporary relief granted by the court.

He also responded to critics who said Pakistan should not have accepted the ICJ’s jurisdiction, saying: “Pakistan attended the hearing out of its utmost respect for the court and pursuant to the established jurisprudence that the challenge to jurisdiction can be made via appearance and not by abstaining from the process.

“In addition, Pakistan attended because of its conviction that the only way to resolve all outstanding issues is through peaceful means. We are confident that India would not be able to hide the subversive activities it is trying to carry out through its agents like Commander Jadhav,” he added.

Jadhav was arrested in a counter-intelligence operation in Balochistan last year and sentenced to death by a military court last month on charges of espionage and sabotage.

It is pertinent to mention here that the ICJ was set up in 1945 to rule on disputes between nations in accordance with international law.

The last time India and Pakistan took a dispute to the ICJ was in 1999 when Islamabad protested against the downing of a Pakistani navy plane that killed 16 people.

In that case, the tribunal decided it was not competent to rule in the dispute and closed the case.