In a major diplomatic and legal victory for India in the Kulbhushan Jadhav case, the International Court of Justice (ICJ) on July 17, 2019, directed Pakistan to review his conviction and, until then, put his death sentence on hold.
The International Court also asked Pakistan to allow India consular access at the earliest. The direction came after the Court held that Pakistan violated Vienna Convention on Consular Relations 1963 by not informing Kulbhushan Jadhav without delay of his rights under Article 36(1)(b) to have consular access.
"the Court is of the view that Pakistan is under an obligation to cease those acts and to comply fully with its obligations under Article 36 of the Vienna Convention. Consequently, Pakistan must inform Mr. Jadhav without further delay of his rights under Article 36, paragraph 1 (b), and allow Indian consular officers to have access to him and to arrange for his legal representation, as provided by Article 36, paragraph 1 (a) and (c),” ordered the ICJ.
In a 15-1 order, the ICJ has directed Pakistan to provide effective review and reconsideration of his conviction and the death sentence. The choice of means is left to Pakistan. The Court noted that the higher courts of Pakistan can review the judgment of the military court. Pakistan law provides for clemency petitions for Jadhav as well.
"the Court finds that Pakistan is under an obligation to provide, by means of its own choosing, effective review and reconsideration of the conviction and sentence of Mr. 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 Vienna Convention,” said the Court.
The Court has however rejected India's prayer for annulment of the military court's conviction of Jadhav saying that his conviction cannot be regarded as a breach of Vienna Convention.
"With regard to India's contention that it is entitled to restitutio in integrum and its request to annul the decision of the military court and to restrain Pakistan from giving effect to the sentence or conviction, and its further request to direct Pakistan to take steps to annul the decision of the military court, to release Mr. Jadhav and to facilitate his safe passage to India, the Court reiterates that 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 Court observed.
ICJ rejected Pakistan’s claim that the Vienna convention did not apply in case of espionage
The Court rejected Pakistan's argument that right to consular access does not apply to persons accused of espionage. It observed that Article 36 of the Vienna Convention, when read in its context and purpose, does not exclude persons suspected of espionage.
The second argument by Pakistan that rules of customary international law permit it to deny consular access to spies was also rejected. In this regard, the Court noted that the Vienna Convention consolidated the law on the subject, and since India and Pakistan are both signatories to the Convention, customary law will not govern the matter.
The third argument by Pakistan that 2008 bilateral agreement between India and Pakistan will govern the issue was also rejected. The Court expressed the view that the clauses of the agreement cannot be read as denying consular access to citizens arrested in the other country on political grounds. On the other hand, the agreement unequivocally reflected the intention of both the countries to extend humanitarian treatment to arrested persons belonging to the other nationality.
The ICJ has set a timetable for the public hearing in the high-profile case from February 18 to 21 at the Peace Palace in The Hague, the Netherlands.
The UN Court took up the matter after India approached it on May 8, 2017 for the "egregious violation" of the provisions of the Vienna Convention on Consular Relations, 1963 by Pakistan by repeatedly denying it consular access to Jadhav, a former Indian Navy Officer who was sentenced to death by a Pakistani Military Court on espionage charges.
Pakistan claimed that its security forces arrested Jadhav from Balochistan province on March 3, 2016, after he reportedly entered from Iran. However, India maintains that Jadhav was kidnapped from Iran where he had business interests after retiring from the Navy.
Senior Advocate Harish Salve appeared for India before the ICJ. Salve submitted that Jadhav's conviction was based on extracted confessions and that the military court had not followed due process. During hearing, he pointed out to the court that not only Jadhav has been denied consular access but no credible evidence has been provided by Pakistan to show his involvement in any act of terrorism.
"Pakistan's story is solely based on rhetoric and not facts," he said.
On the other hand, Queens Counsel Khawar Qureshi for Pakistan disputed Jadhav's Indian identity. There was no proof of him being retired from armed forces. He was in possession of an Indian passport with a Muslim cover name, Qureshi submitted.
To support its arguments, Pakistan cited articles written by Indian journalists Karan Thapar, Praveen Swami and Chandan Nandy to state that Jadhav was a spy planted by India in Pakistan on an espionage mission.