ICJ rejects India’s plea for Kulbhushan Jadhav’s acquittal

–World court’s verdict says Jadhav’s conviction and death sentence doesn’t violate Vienna Convention

–Court allows India consular access to RAW spy, urges Pakistan to review death sentence

THE HAGUE: The International Court of Justice (ICJ) on Wednesday rejected India’s plea for the acquittal of Kulbhushan Jadhav, an Indian spy who was sentenced to death by a Pakistani military court after his capture and trial, ruling that Jadhav be allowed consular access immediately and asking Pakistan to ensure “effective review and reconsideration of his conviction and sentences”.

Judge Abdulqawi Ahmed Yusuf announced the verdict in the presence of both Pakistani and Indian delegations.

The ICJ rejected all other remedies sought by India, which included the annulment of the military court decision convicting Jadhav, restricting Pakistani from executing the sentence, securing Jadhav’s release and ordering his return to India.

The ICJ said that even though it had found Pakistan in violation of Article 36 the Vienna Convention on Consular Relations (VCCR), “it is not the conviction and sentence of Mr. Jadhav which are to be regarded as a violation of Article 36 of the Vienna Convention.”

The most the ICJ said it could do was to order Pakistan to cease violation of Article 36 and review the case in light of how that violation may have affected the case’s outcome.

“The Court notes that Pakistan acknowledges that the appropriate remedy in the present case would be effective review and reconsideration of the conviction and sentence,” it observed.

To this end, Pakistan was directed to immediately inform Jadhav of his rights under Article 36, grant him consular access, and then review the case while considering, under the laws of Pakistan, how not doing so earlier may have impacted the case.

“Islamic Republic of 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,” read the verdict.

“The Court considers that the violation of the rights set forth in Article 36, paragraph 1, of the Vienna Convention, and its implications for the principles of a fair trial, should be fully examined and properly addressed during the review and reconsideration process,” the court directed.

“In particular, any potential prejudice and the implications for the evidence and the right of defence of the accused should receive close scrutiny during the review and reconsideration,” it said.

“The Court notes that the obligation to provide effective review and reconsideration can be carried out in various ways. The choice of means is left to Pakistan,” it added.

However, it also added that, “Pakistan shall take all measures to provide for effective review and reconsideration, including, if necessary, by enacting appropriate legislation.”

While that matter is decided, Pakistan was directed to suspend the execution of the death penalty awarded to Jadhav till it fulfills the directives set out by the ICJ.

‘CLEAR CASE OF INDIAN STATE TERRORISM’:

In a statement issued after the verdict, the Foreign Office (FO) said that Pakistan, as a responsible member of the international community, upheld its commitment from the very beginning of the case by appearing before the honourable court for provisional measures hearing despite a very short notice. Having heard the judgement, Pakistan will proceed as per law, FO added.

“It is reiterated that Indian Naval Commander Kulbhushan Jadhav entered Pakistan without a visa on an authentic Indian passport and under the fake alias of Hussain Mubarak Patel. Commander Jadhav is responsible for acts of sabotage, espionage and multiple terrorist incidents in which scores of innocent Pakistani citizens were killed, resulting into umpteen women being widowed and numerous children becoming orphans,” the statement said.

FO further said that Jadhav had confessed all these acts during his trial in the Pakistani court in front of a judicial magistrate. “This is a clear case of Indian state terrorism,” the statement concluded.

Jadhav had been sentenced to death in April 2017 by a Pakistani military court over charges of espionage, following which India moved The Hague-based ICJ. A 10-member bench of the ICJ had in May 2017, restrained Pakistan from executing Jadhav till adjudication of the case.

Pakistan said that its security forces arrested Jadhav from Balochistan on March 3, 2016, after he allegedly “entered Pakistan from Iran”. India, however, maintained that Jadhav was kidnapped from Iran where he had business interests after retiring from the Indian Navy.

Pakistan and India both concluded their arguments in February. Pakistan accused India of using ICJ for “political theatre” as it urged judges to dismiss India’s case seeking to save spy Jadhav from execution.

Pakistan was represented by English Queen’s Counsel Khawar Qureshi, who asserted that India failed to answer important questions as it did not clarify if he is Kulbhushan Jadhav or Hussain Mubarak Patel.

India’s Counsel Advocate Harish Salve, who had also earlier represented the country in the same case, presented his statement before the court, which mostly appeared to be based on repetition of points raised in previous proceedings.

Salve highlighted the issues including denial of consular access by Pakistan and its breach of Article 36 (1)(b) of the Vienna Convention – the similar arguments that India came up with during maiden statement of objections.

He opposed the death penalty announced by Pakistan, citing it contrary to the fundamental rights and also argued against the decision made by Pakistan’s military court for trying a civilian.

On Pakistan’s earlier objection on India facilitating Jadhav’s 17 times travel on his passport with the cover name Hussein Mubarik Patel, the Indian counsel merely termed it “untrue” without presenting any supporting facts.

Pakistan’s Attorney General Anwar Mansoor Khan and South Asia Director General Dr Mohammad Faisal were present in the courtroom as agent and co-agent, respectively.

Following India’s conclusion of arguments, FO said, “India failed to tell the court about Jadhav’s arrival in Pakistan and the reason behind it. India even failed to explain how Jadhav managed to get a passport and travel to Delhi at least 17 times.”

“India also failed in putting up justifiable arguments on Jadhav’s retirement date,” FO added.

FO further said that the neighbouring country also did not furnish any pension details of the spy if he was actually retired from the Indian Navy.

On May 8, 2017, India commenced these proceedings before the ICJ, alleging that Pakistan had committed a breach of the VCCR 1963 by failing to grant immediate consular access in respect of Commander Jadhav, and alleging that the military court procedure was flagrantly unfair. Centrally, the relief India sought was “at least” the acquittal/release/transfer to India of Commander Jadhav. India also demanded by way of provisional measures that the ICJ should immediately make an order (without even having a hearing) that Pakistan should be restrained from executing Commander Jadhav pending the full hearing of India’s claims.

As mentioned above, Pakistan’s civilian courts can and do routinely order a stay of execution pending the full hearing of legal challenges to decisions emanating from Pakistan’s Military Courts – they do so in order to preserve the status quo without making any decision as to the facts or merits. The Pakistani courts have shown themselves capable of acting very quickly (within hours) in this manner in response to an application for a stay of execution. It was therefore not unusual that the ICJ directed a stay of execution on 18th May 2017 pending a full hearing.

In April 2017, the convicted Indian spy filed a mercy petition to Chief of Army Staff (COAS) General Qamar Javed Bajwa.

In his plea, Commander Jadhav admitted his involvement in espionage, terrorist and subversive activities in Pakistan and expressed remorse at the resultant loss of many precious innocent lives and extensive damage to property due to his actions. Seeking forgiveness for his actions, he requested the COAS to spare his life on compassionate grounds.

Commander Jhadev had earlier appealed to the military appellate court which was rejected. Under the law, he was eligible to appeal for clemency to the COAS (which he had done) and if rejected, subsequently to the president of Pakistan.