The Kulbhushan Jadhav case is not the first time an India-Pakistan dispute has found its way to the International Court of Justice (ICJ). The two have taken their issues to ICJ on at least three previous occasions. But this was the first time that a hearing was taking place under such public scrutiny.
Wednesday’s ICJ judgment came after a diplomatic and legal process that lasted over three years. The verdict affirmed consular access to Jadhav, and paved the way for a review of his conviction by a Pakistan military court. While the judgment is undoubtedly a major victory for India, it is only the start of a longer process in Pakistan courts, the outcome of which remains uncertain.
Kulbhushan Sudhir Jadhav is an Indian Citizen in Pakistani custody since March 3, 2016. The circumstances of his apprehension are disputed by the countries. According to India, Jadhav was kidnapped from Iran, where he was working after his retirement from the Indian Navy, and was subsequently transferred to Pakistan and detained for interrogation. Pakistan has contended that Jadhav was arrested in Balochistan after illegally entering the Pakistani territory. It has also contended that Jadhav was in possession of an Indian passport bearing the name Hussein Mubarak Patel at the moment of his arrest. He was accused of performing acts of espionage and terrorism on behalf of India and sentenced to death by a military court on 10 April 2017.
India approached the ICJ
Following the death sentence, India issued a sharp demarche to the Pakistani High Commissioner. On 8 May 2017, a month after the announcement of the death penalty, India instituted proceedings at the ICJ. It alleged “egregious violations” of Article 36 the Vienna Convention on Consular Relations. Article 36 inter alia provides that ‘consular officers shall have the right to visit a national of their state in prison, custody or detention, and to arrange for his legal representation.’ India’s contentions were built around the fact that Pakistan denied as many as 13 requests for consular access to Jadhav made between March 2016 and March, 2017. India prayed that the ICJ annul the decision of the military court and restrain Pakistan from giving effect to the sentence or conviction. It was further prayed that Pakistan release Jadhav and facilitate his safe passage to India. In the alternative it was prayed that the court direct Pakistan to take steps to annul the decision of the military court and direct a trial under ordinary law before civilian courts.
For its part, Pakistan contended that India had failed to respond to its request for assistance with the investigation into Jadhav’s activities. It also argued that India had provided him with a “false cover name authentic passport” and, more generally, that it was responsible for Jadhav’s alleged espionage and terrorist activities in Pakistan. Given this conduct, India’s claims were not admissible before the court. Pakistan further argued that the Vienna Convention was not applicable to the parties. Any dispute would have to be decided on the basis of a 2008 bilateral agreement on consular access. In any event, the Vienna Convention did not apply in cases of espionage. With regard to the reliefs claimed by India, Pakistan contended that the annulment of a domestic criminal conviction could only be granted by an appellate criminal court. Granting such relief would transform the ICJ into a court of appeal of national criminal proceedings. This was impermissible.
Before the final hearings commenced, the court on 18 May 2017 passed a provisional measure directing Pakistan to take all measures at its disposal to ensure that Jadhav was not executed pending the final decision of the court.
The final judgment
By a majority of 15:1 (Judge Jillani of Pakistan dissented), the court agreed with most of India’s contentions. The court was of the view that Pakistan failed to explain how any of the (allegedly) wrongful acts allegedly committed by India prevented Pakistan from fulfilling its obligations under Article 36. Pakistan’s arguments regarding the applicability of the 2008 treaty were rejected by the court, which held that the “agreement does not, as Pakistan contends, displace the obligations under Article 36 of the Vienna Convention”. The court also found that Pakistan acted in breach of its obligations under Article 36 of the Vienna Convention by:
* not informing Jadhav of his rights to consular access
* not informing India, without delay, of the arrest and detention of Jadhav; and
* denying consular officers of India access to Jadhav, contrary to their right, inter alia, to arrange for his legal representation
Having held thus, the court directed Pakistan to inform Jadhav of his rights under the Convention. It was also directed to provide Indian consular officers access to him. However, the court rejected India’s prayers for Jadhav’s release or his trial by a civil court. Instead, the court directed Pakistan “to provide, by the means of its own choosing, effective review and reconsideration of the conviction and sentence of Jadhav, so as to ensure that full weight was given to the effect of the violation of the rights set forth in Article 36 of the Convention”. It also directed a stay of execution of Jadhav till the end of the review process.
None of the cases alleging a violation of the Vienna Convention have resulted in effective relief to the accused therein. In the past 20 years, three cases relating to violation of the Vienna Convention have been brought before the ICJ. All three have involved situations in which the detaining authorities failed to inform foreign nationals convicted of crimes about their right to consular access. In all three cases, executions were carried out, despite the rulings of the ICJ. The US was the guilty party in all these cases.
Pakistan does not have the heft of the US, so it can be reasonably expected to honour Wednesday’s verdict. One must, however, keep in mind that the ICJ judgment is limited to the violation of the Vienna Convention. The court refused to get into the merits of the conviction. Thus, it is open to Pakistan to carry out a retrial after giving India consular access, and find Jadhav guilty once again. Such a decision is unlikely to be interdicted by the ICJ, simply because it does not sit in appeal over decisions of a domestic court.
As things stand today, we have a judgment. We do not have Jadhav. One must congratulate the government for acting decisively, and its legal team, led by Harish Salve, for a near unanimous victory. However, diplomacy remains India’s best way to secure Jadhav’s release.
The writer practices in the Supreme Court. Twitter: @parahoot