Review And Reconsider Conviction And Sentencing Of Jadhav: ICJ To Pakistan

“Truth and justice have prevailed. Congratulations to ICJ for a verdict based on extensive study of facts. I am sure Kulbhushan Jadhav will get justice.”

–       PM Narendra Modi

                                                   It goes without saying that in a major legal and diplomatic victory for India and also simultaneously in a major legal and diplomatic setback along with global embarrassment for Pakistan, the International Court of Justice (ICJ) has held upfront that Pakistan violated the Vienna Convention in the Kulbhushan Jadhav case and it should review and reconsider his conviction and sentencing while allowing India consular access to the Indian national. Importantly, the ICJ ruling said unequivocally that the stay on the death sentence pronounced on Jadhav must remain. It minced no words in saying clearly, categorically and convincingly that, “The court considers that a continued stay of execution constitutes an indispensable condition for the effective review and consideration of the conviction and sentence of Jadhav”.

                                   To be sure, while indicating its unhappiness with the judicial process regarding Kulbhushan Jadhav, the ICJ said that, “Court considers it imperative to re-emphasise that the review and reconsideration of the conviction and sentence of Jadhav must be effective.” This clearly comes as a rap on the knuckles of Pakistan’s opaque way of trial of Jadhav by military courts which is the biggest proof that it was just a sham trial and everything was pre-decided! It is a no-brainer that this sharp observation of ICJ clearly tantamount to an open indictment of Jadhav being tried before secret military “black” courts where the evidence against him and his legal defence remains unknown! How can this by any standard be termed as “fair trial”?

                                                What’s more, while rejecting all the major contentions put forward by Pakistan, the ICJ said the Vienna Convention was applicable in the Jadhav case regardless of allegations that he was engaged in espionage. It also conveyed unambiguously that, “Pakistan must inform Jadhav without further delay of his right under Article 36 and allow and arrange for his legal representation”. Pakistan should be ashamed that ICJ has to remind it that what all legal rights should be provided to Jadhav!

                              Bluntly put: If Pakistan has nothing to hide as it repeatedly asserts and tries to present a brave face then why was it so determined to deny even consular access and legal representation to Kulbhushan Jadhav? This itself is the biggest testimony of the irrefutable fact that Pakistan has a lot to hide and has very little to show and has no genuine proof to vindicate its false claim that Kulbhushan Jadhav is a spy and a terrorist! Why ICJ conveyed its unhappiness with the way Jadhav was tried in Pakistan? Still should Pakistan not wake up its ideas and act in the right manner?

                                                Before proceeding ahead, it would be pertinent and imperative to mention now the entire sequence of events in which the Jadhav case unfolded. This will help us understand better the entire case and how it reached its logical conclusion. It is as follows: –

                         2016

 March 3: Kulbhushan Jadhav, then 46 years, is arrested by Pakistan allegedly from Mashkel in Balochistan Province. Pakistan terms him “an Indian spy” for India’s external intelligence agency, RAW.

March 25: India notified about Jadhav’s arrest in a press release by Pakistani authorities. India rejects Pakistan’s claims and says there’s no proof that he was arrested in Balochistan.

March 26: The then Ministry of External Affairs spokesperson Vikas Swarup releases a statement stating that while Jadhav was a former naval officer, he had no links with RAW or the government.

March 29: India seeks consular access to Jadhav which Pakistan does not provide.

March 30: Union Minister Kiren Rijju rubbishes  Pakistan’s claims and calls Jadhav’s “confession” about his alleged involvement in terror activities in Balochistan a lie. Indian authorities claim Jadhav was abducted from Iran where he was conducting business after retiring from Navy.

December 7: Pakistan Foreign Minister Sartaj Aziz confirms that conclusive evidence against Kulbhushan Jadhav has not been found.  Pakistan Foreign Ministry then makes a U-turn on its earlier released statement.

                         2017

Jan 6: Pakistan announced that it has submitted a dossier to the new United Nations Secretary General Antonio Guterres over Indian interference in Islamabad, which was aimed at “destabilising” the nation.

April 1: India starts sending diplomatic communications to Pakistan for providing consular access to Jadhav. Authorities claim that access denied despite repeated requests.

April 10: Pakistan army says Jadhav has been sentenced to death by a military court for espionage and waging war against the country.

April 12: According to a media report, Jadhav is charged with terrorism and sabotage by a court.

May 8: India moves ICJ against Pakistan’s decision and for “egregious violation of the Vienna Convention on Consular Relations”. It seeks ‘provisional measures’ from ICJ and asks it to issue instructions to Pakistan to not take any action on the death sentence till India’s request for ‘provisional measures’ was considered by the court.

May 9: What came as a shot in the arm for India was ICJ staying Jadhav’s execution on India’s request. ICJ sends urgent communication to the Pakistan PM asking the country not to take measures that would result, in an ICJ ruling not having the appropriate effect thus prohibiting Pakistan from executing Jadhav.

May 15: ICJ begins hearing. ICJ hears India’s request for ‘provisional measures’.

May 18: In a further major gain for India, ICJ unanimously issues binding order on ‘provisional measures’, says all measures to be taken to prevent execution of Jadhav pending the final judgment.

June 16: World Court asks India to make its submission by September 13.

Sep 13: India files its memorial (first round of written pleadings), Pakistan follows with counter memorial on December 13, 2017.

Dec 19: India seeks 3 months to file reply (2nd pleadings). Pakistan opposes India’s request.

Dec 25: Pakistan facilitates meeting of Jadhav with his mother and wife in Islamabad but here too they are subjected to undergo humiliation like asking them to remove mangalsutra, bindi, shoes etc.

                          2018

Jan 17: ICJ accepts India’s request and gives 3 months each to India and Pakistan to file a second round of written pleadings.

April 17: India files second round of written pleadings.

July: Pakistan also follows with its own filing of second round of written pleadings.

Oct 3: ICJ fixes dates for final hearing in the matter.

                     2019

Feb 18: ICJ begins four-day final public hearing in this case.

Feb 21: ICJ concludes the hearing and reserves the order.

July 17: ICJ orders that Jadhav must be given consular access. ICJ also orders that it has jurisdiction to decide India’s plea for Kulbhushan Jadhav. It also holds that stay of Jadhav’s execution ordered by Pakistan’s military court will continue and Pakistan has to review and reconsider conviction and sentencing of Jadhav.

                                            Be it noted, all the 16 Judges of ICJ on the panel unanimously ruled that the ICJ’s jurisdiction held over the case. It said that the court “unanimously, finds that it has jurisdiction, on the basis of Article 1 of the Optional Protocol concerning the Compulsory Settlement of Disputes to the Vienna Convention on Consular Relations of 24 April 1963, to entertain the Application filed by the Republic of India on 8 May 2017”. The judgment which was read out by Judge Abdulqawi Ahmed Yusuf who is the President of the ICJ at the Peace Palace on July 17, 2019 was decided with 15 judges in favour while only Pakistan’s ad-hoc Judge – Justice Tassaduq Hussain Jilani was the lone dissenter! Pakistan must be gracious enough to accept this biggest slap on its face and comply with the order passed by the ICJ to save its own reputation in front of the world!

                                   What’s more, the ICJ specifically ruled that it “finds that the 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”. Pakistan till now was totally opposed to giving any consular access to Kulbhushan Jadhav but now it has no option but to comply! The ICJ said that the court finds that the “appropriate reparation in this case consists in the obligation of the Islamic Republic of 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 is given to the effect of the violation of the rights set forth in Article 36 of the Convention.”

                                             Not stopping here, it added that a “continued stay of execution constitutes an indispensable condition for the effective review and reconsideration of the conviction and sentence of Jadhav. The Court also found that, “by not informing Jadhav without delay of his rights under Article 36, paragraph 1(b) of the Vienna Convention on Consular Relations”, Pakistan “breached the obligations” incumbent upon it under that provision. It also said that by “not notifying the appropriate consular post of the Republic of India in the Islamic Republic of Pakistan without delay of the detention of Mr Kulbhushan Sudhir Jadhav and thereby depriving the Republic of India of the right to render the assistance provided for by the Vienna Convention to the individual concerned, the Islamic Republic of Pakistan breached the obligations incumbent upon it under Article 36, paragraph 1 (b), of the Vienna Convention on Consular Relations.”

                                              What a pity that it is now after such a long legal battle that ensued and raged on in ICJ for more than 3 years and after ICJ asked Pakistan to comply that it has finally buckled after being forced to eat the humble pie and say in a mellowed manner that it has decided to grant consular access to Kulbhushan Jadhav hours after Indian Foreign Minister S Jaishankar sought it following the ICJ verdict! Pakistan’s Foreign Ministry announced in a statement that, “Pursuant to the decision of the ICJ, Commander Kulbhushan Jadhav has been informed of his rights under Article 36, Paragraph 1(b) of the Vienna Convention on Consular Relations. As a responsible state, Pakistan will grant consular access to Commander Kulbhushan Jadhav according to Pakistani laws, for which modalities are being worked out.” One fails to understand that why it took so long for Pakistan to become a responsible state? Why was it an irresponsible state for so long? Why it took ICJ’s intervention for Pakistan to realise its responsibility of providing consular access to Pakistan? Were Pakistan’s lawyers who claim to be very intelligent not aware even of this also that it had to face so much of international humiliation and now finally it has decided to relent on this? I pity them!

                                    Needless to say, Pakistan’s move has to be viewed as a ritualistic peace missive to India following its increasing isolation in the international community. We all know that the Financial Action Task Force has already placed Pakistan on its grey list and can be blacklisted also by October if it fails to mend its ways even now and find itself in the company of rogue countries like North Korea and Yemen among others! Can Pakistan afford this? Certainly not!

                                       While making a statement in both Houses of Parliament on the judgment by the ICJ, Foreign Minister S Jaishankar said that, “Pakistan was found to have deprived India of the right to communicate with Jadhav, have access to him, visit him in detention and arrange his legal representation”. Has Pakistan been able to justify this in ICJ? Certainly not!

                                    This alone explains that why following this landmark ICJ judgment, the Pakistan Foreign office in a terse statement has said that, “Having heard the judgment, Pakistan will now proceed as per law.” What does this reflect of Pakistan? That it was not even aware of what the law is!

                                        As things stand, we thus see that Pakistan is compelled to act now after this landmark ICJ ruling. It has now no other option but to act as per the directions of ICJ of providing Jadhav consular access, legal aid and trying him properly as per law. It is most astounding to see that Jadhav who is a retired Indian Navy officer was sentenced to death by the Pakistani military court on charges of “espionage and terrorism” after a closed kangaroo trial in April 2017. Jadhav was not just denied consular access but also denied all type of legal aid! If this is not an open mockery of justice then please tell me that what else is?

                                   Let me say this on record: The sole credit for this landmark ICJ verdict goes to eminent lead lawyer in this case and former Solicitor General of India Harish Salve who charged just one rupee for this case and left no stone unturned and pulled out all the stops to ensure that Kulbhushan Jadhav gets justice from ICJ. It is this same Harish Salve who had earlier ensured that Lt Col Shrikant Prasad Purohit who was most wrongly kept in jail for about 9 years without even charge sheet being filed against him could walk in the open air once again by securing bail for him and pointing out how injustice had been meted out to him. His popularity has increased manifold since then not just among people but even among the legal fraternity including me!

                                       To say the least, in Jadhav’s case, Harish Salve while expressing happiness at the landmark ICJ verdict said that, “The ICJ verdict calling for the consular access to Kulbhushan Jadhav and making it incumbent upon Pakistan to ensure an effective review of its legal processes is a victory of the rule of law that has ‘gladdened our hearts’. There is relief, satisfaction and a lot of hope. The judgment has restored our faith in the rule of law, in the ICJ and in the systems which we as mankind put together to protect the citizens of the world.”

                                 Going forward, Salve further disclosed that, “We had challenged the conduct of Pakistan in its brazen refusal to adhere to the Vienna Convention and allow consular access to Mr. Jadhav. The court found Pakistan guilty of internationally wrongful acts and that it must cease those acts. It is important to be positive after such a positive ruling.” He also said that he hoped Pakistan would fully comply with the judgment and that its conduct will be under watch in case it chooses to “brazenly violate” the ruling in any way.

                                         Interestingly enough, Harish Salve also added that any violation of the order would mean taking things back to the ICJ to seek further instructions. Can Pakistan afford this now? He also warned that sanctions in the United Nations Security Council and other remedies could also come into play if Pakistan fails to comply with the ICJ order. He also  further added that, “The ICJ had been categorical in its verdict that Pakistan must do everything to make the Vienna Convention a living reality. The government of Pakistan must ensure all necessary “review and reconsideration” measures, including ‘legislative’ means.”

                          To put things in perspective, this landmark verdict clearly denotes that Jadhav will continue to be protected from the death sentence on spy and terror charges as Pakistan could not prove anything against him and now that the ruling has gone against them, Islamabad will certainly find it too difficult to risk international criticism and opprobrium by ignoring the ruling. No wonder that Pakistan as anticipated sought to downplay the big setback arguing that ICJ did not order Jadhav’s release but even they too cannot deny that the court clearly said that Pakistan is “under obligation” to review the conviction and carry out retrial in a more transparent manner which they know would ostensibly lead to Jadhav’s acquittal as they have no reliable evidence to convict him!

                                        As it turned out, the ICJ rejected Pakistan’s contention that it had no jurisdiction and that India’s complaint is not admissible. Even the Chinese Judge Xue ruled against Pakistan! ICJ held that, “Pakistan’s objection based on ‘clean hands’ doctrine must be rejected. Pakistan has not explained how any of the wrongful acts allegedly commited by India may have prevented Pakistan from fulfilling its obligation. The court finds that it has jurisdiction to entertain India’s claim. India was under no obligation to consider other dispute settlement mechanisms prior to instituting proceedings. Thus, Pakistan’s objection based on alleged non-compliance cannot be upheld.” The ICJ also held that the 2008 India-Pakistan bilateral agreement in no way trumped Islamabad’s obligations under the Vienna Convention. The ICJ was abundantly clear to hold that Pakistan had violated Article 36 of Vienna Convention on Consular Relations in denying consular access to Jadhav!

                                     Happily enough, while addressing a press conference in London, Harish Salve remarked confidently that, “I have a degree of personal satisfaction that a lot of adjectives were used by Pakistan in its submissions that I described as unfortunate because of my upbringing as Indian. The Court has said Pakistan is guilty of internationally wrongful acts and it must cease those acts. This is a trenchant indictment”. He also said that, “The court said Pakistan has to do everything to make the Vienna Convention a living reality” while pointing out that the international legal body also asked for a fair trial of Mr Jadhav. There can be no denying it!

                                      Suffice it to say, Salve rightly said that the judgment gives India a “good moment” to help Mr Jadhav get justice. He also very wisely pointed out that a re-trial of Mr Jadhav in a military court in Pakistan would not meet the standards set by the ICJ. He also rightly described the verdict as a victory for the rule of law.

                                It is heartening to note that even the Opposition parties have welcomed the verdict. Former Union Finance Minister and also a senior Supreme Court lawyer P Chidambaram said that, “ICJ delivers ‘justice’ in the true sense of that word, upholding human rights, due procedure and the rule of law.” Former Union External Affairs Minister Sushma Swaraj too said that, “I wholeheartedly welcome the verdict of International Court of Justice in the case of Kulbhushan Jadhav. It is a great victory for India.” Very rightly said!

                                        It also cannot be lost on us that Gautam Bambawale who as India’s envoy to Pakistan when Jadhav was arrested had bombarded the Pakistani government with repeated official requests for consular access, thereby creating the right conditions for India’s case at the ICJ has said most unequivocally that, “ICJ has clearly ruled that Pakistan must review the case. This implies that the earlier military court proceeding did not give Jadhav due process. So a retrial must take place which must be fairer than earlier, with full consular access and a defence attorney for Jadhav.” The ICJ has worked with precedents in the cases of Germany vs the United States (LaGrand) and Mexico vs the United States (Avena), and in both these cases it had ruled that the US was in violation of the Vienna Convention and ordered a “review and reconsideration” of its process!

                                 It is worth mentioning here that ICJ emphasized in no uncertain terms that the review of Jadhav’s case by Pakistan must be effective as the outcome of his mercy petition to the Pakistan Army Chief was not known, and no evidence was submitted to the court on the presidential clemency procedure. ICJ noted that Pakistan had stated during arguments that its high courts were competent to carry out a review.

                                         Going forward, ICJ also observed that Article 199 of Pakistan’s Constitution had been interpreted by the Supreme Court as limiting the availability of such a review for a person like Jadhav, who is subject to the Pakistan Army Act. The ICJ in its historic verdict also said that, “Thus, it is not clear whether judicial review of a decision of a military court is available on the ground that there has been a violation of the rights set forth in Article 36, paragraph 1 of the Vienna Convention.” The verdict, however, added that, “Pakistan contends that its domestic legal system provides for an established and defined process whereby the civil courts can undertake a substantive review of the decisions of military tribunals, in order to ensure procedural fairness has been afforded to the accused, and that its courts are well suited to carrying out a review and reconsideration that gives full weight to the effect of any violation of Article 36 of the Vienna Convention.”

                                        Before parting, it must be said that in a 15-1 order, the ICJ held that Jadhav’s execution will remain on hold until Islamabad “effectively reviews and reconsiders’ his execution. ICJ also made it amply clear that, “A continued stay of execution constitutes an indispensable condition for the effective review and reconsideration of the conviction and sentence of Mr Kulbhushan Sudhir Jadhav”. The World Court also ruled decisively in favour of India’s plea to allow it full consular access to Jadhav which Pakistan has consistently denied so far.

                        It is most heartening to note that the Pakistani Judge Tassaduq Hussain Gilani from Pakistan was completely isolated and was the only one to go against the majority judgment. Even the Judge from China – Vice President Xue also voted in favour of the judgment. India could just not secure the annulment of Jadhav’s conviction by the military court in Pakistan and his immediate release. But here too now Pakistan is under an obligation to ensure that the trial held is proper, legal and fair! The ICJ found that Pakistan deprived India of the right to communicate with and have access to Jadhav, to visit him in detention and to arrange for his legal representation and thereby breached obligations incumbent upon it under the Vienna Convention! Pakistan is left now with no option but to comply gracefully with this historic ICJ judgment as it has itself conceded also! What more could India have asked for than this?

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

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