Expected ICJ verdict

• The verdict will come today

The International Court of Justice reportedly is going to announce its verdict in the Kulbhushan Jadhav case on 17 July (today). The court had held final hearing in the case from 18 to 21 February. India had pleaded that the court order the acquittal, release and return to India of Commander Kulbhushan Jadhav who was caught in Pakistan on 3 March 2016 on charges of espionage and sentenced to death by a military court, contending that the denial of consular access to India by Pakistan warranted intervention by the court.

Before discussing the legal aspect of the issue and the jurisdictional perspective of the ICJ in such cases it is perhaps pertinent for the benefit of the readers to unravel the background of the case and the developments that have occurred so far.

On 3 March 2016, Kulbhushan Sudhir Yadhav, a serving commander of the Indian Navy, working as an agent of Indian intelligence (RAW), was arrested in Balochistan (Pakistan) during a counter-intelligence operation. In his confessional statement while under investigation, he admitted that Indian intelligence agency RAW was involved in destabilizing Pakistan, and he was a serving officer of the Indian Navy working in Pakistan at its behest. He also acknowledged that he launched a covert operation against Pakistan from the Iranian port of Chahbahar for which he used to get instructions from RAW Joint Secretary Anil Gupta. According to him, RAW had been funding the Baloch separatists for carrying out their insurgency operations. Cdr Jhadav also confessed that he had been directing various activities in Karachi and Balochistan on directions from RAW since 2013 and had a role in the deteriorating law and order situation in Karachi.

Prima facie India stands on a very weak wicket. In view of the previous decisions of the ICJ on the subject and the legal issues involved, it can be justifiably expected that it would not provide relief of acquittal, release and return to India of Commander Jadhav

His arrest was made public on 25 March along with the video of his confessional statement. India rejected the video confession, contending that it was a fake and doctored video made by Pakistan with a view to defame India. Indian agencies stated that the video released by Pakistan was heavily edited and the audio had been spliced in several places. It also claimed that Cdr Jadhav was kidnapped from Iran and brought to Pakistan.

Cdr Jhadav was found in possession of an Indian passport with his assumed name of Hussain Mubarak, on which he had been travelling out of India and returning to the country during that period. Though the Indian government did recognize him as a former naval officer, it denied any current links with him, maintaining that he had taken premature retirement.

Jadhav was provided with legal assistance during the trial; however, having found him guilty of the crime of espionage, a Field General Court Martial awarded him the death sentence on 10 April 10. India continued asking for consular access to Commander Jadhav, which was denied by Pakistan, which contended that consular access was not automatic in cases related to security. However, on humanitarian grounds, Pakistan government did allow the mother and wife of the convict to have an interface with him at the Ministry of Foreign Affairs; a gesture which did not go down well with India, which criticized Pakistan for handling the visit, saying the wife and mother of Commander Jadhav were harassed and prevented from talking to him freely.

In May 2017, India approached the ICJ, asserting that the Pakistani authorities were denying India its right of consular access to Commander Jadhav in violation of the 1963 Vienna Convention on Consular Relations. The ICJ proceedings began in The Hague on 15 May 2017 to review the case. India and Pakistan both sent their legal teams to put forward their arguments. On 18 May, the ICJ stayed Commander Jadhav’s hanging. After the halting of the execution, India made two written submissions to the ICJ and Pakistan accordingly gave rejoinders to them.

It is worth mentioning that during investigation of Commander Jadhav Pakistan reportedly sent a letter to the Indian government on 23 January 2017, making specific requests to assist in the investigation of Commander Jadhav, attaching copies of the authentic Indian passport that he was using in the name of Hussein Mubarak Patel along with the FIR and other incriminating material. India neither provided the required assistance nor made available any corroborative or other evidence to facilitate the investigations.

In regards to the Indian contention that Pakistan by denying consular access to Jadhav had violated Vienna Convention, it is pertinent to point out that consular access is not obligatory in such criminal cases. The ICJ, in its previous decisions concerning death sentences imposed by the USA in similar cases, had made it clear that it was not a court of criminal appeal and the presence of effective review and reconsideration by domestic courts was an appropriate remedy, even if a breach of the right to consular access had been established. According to ICJ verdicts already given, it was a case for appeal in the Pakistani courts. As to the Indian allegations that the military court procedure was flagrantly unfair, the two eminent experts of the British Army, who carried out a review of the military court jurisdictions of several countries, found that Pakistan’s military court jurisdictions was sound in law and contained no manifest unfairness. They concluded that the High Court and Supreme Court of Pakistan provided an effective review process for the Court system. The review fell in their jurisdiction which was never sought.

Pakistan rightly maintained that it would have been incompatible with international law for someone sent as a spy or terrorist by a state to be afforded access to the officials of that state. It rightly pointed to an express Agreement on Consular Access dated 21 May 2008 between the two countries, which allowed each state to consider a request for consular access on its merit in a case involving national security. What Commander Jadhav did clearly was an act to jeopardize the security of Pakistan and it was very much justified in denying consular access to India. In this regard, Pakistan also pointed out the existence of ‘espionage exception’ to consular access in customary International law during the May 15 hearing of the case by the ICJ, which lent strength to the position taken by her stance on the issue.

It is worth pointing out that India has not been able to provide any proof of her allegations regarding the kidnapping of Commander Jadhav from Iran. It has failed to explain how Jadhav was in possession of an authentic Indian passport in the false name of Hussein Mubarak Patel. The Indian response has been that it was a mischievous propaganda. Then it took the position that it was a forgery; a claim which has been nullified by a highly credible independent UK expert who corroborated that the passport seized from Commander Jadhav was an authentic Indian document. In view of this corroboration there is a case for India to answer the questions like why Commander Jadhav possessed a passport in the name of Hussein Mubarak Patel? If the passport was a fake document, then how could he travel out of India 17 times, including from Mumbai and New Delhi? If it was real, how could he be in possession of a passport in a fake name? And if he was retired as per Indian claims, then why did India fail to produce his retirement or pension papers?

Prima facie India stands on a very weak wicket. In view of the previous decisions of the ICJ on the subject and the legal issues involved, it can be justifiably expected that it would not provide relief of acquittal, release and return to India of Commander Jadhav.