ICJ Judgement Analysis:The Kulbhushan Jadhav Case

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This post has been written by Anjali Krishnan, a student of 2nd year, JEMTEC School of Law, IP University. 

INTRODUCTION –

On 17th July 2019, the President of the International Court of Justice, Judge Abdulqawi Ahmed Yusaf, read the judgement for Kulbhushan Jadhav’s case at 3 pm local time. This was a case between the Republic of India and the Islamic Republic of Pakistan in the court of international justice. The verdict of this high-profile case came after 5 months on February 21st both India and Pakistan had submitted their respective oral submission in front the 15-member bench of ICJ headed by Judge Yusaf. It took two years for the proceedings of the case to end.

Though the verdict given by the ICJ did not clearly answer as to who exactly won the case and who lost the case, this case is considered as one of the most important case in international laws. In this article we would be analyzing the case and the judgment given by the ICJ.

FACTS OF THE CASE –

Kulbhushan Sudhir Jadhav was a 50-year-old retired Indian Navy Officer who was sentenced capital punishment by the Military Court of Pakistan. The charges against Jadhav for which he was being sentenced to death was ‘Espionage and Terrorism’.

On March 3rd, 2016, Kulbhushan Jadhav was arrested by Pakistan. On March 24th, the Pakistan Security forces claim that Jadhav was “an Indian spy” arrested from the southern Balochistan, who came after crossing over from Iran. After 22 days of the arrest, on March 25th Pakistan reports about the arrest and accused him for being a spy for which India rejected the claim. Pakistan also shares the confession video of Jadhav. On March 29th, 2016, New Delhi seeks from Islamabad consular access to Jadhav. Over the next one year, India made 16 such requests which was denied by Pakistan.

After continuous denial of consular access, Pakistan Army Court on April 10th, 2017, sentenced Jadhav to death for “his involvement in espionage and sabotage activities against Pakistan”. The very next day, External affairs Minister Sushma Swaraj makes a statement in both the Houses of Parliament, asserting that India will go “out of way” to ensure justice to Jadhav who is an “innocent kidnapped Indian”.  On April 14th, 2017, India demands from Pakistan a certified copy of the charge sheet as well as the judgement in the death sentence of Jadhav and seeks consular access to him.

On April 15th, 2017, Pakistan briefs envoys of the Arab and ASEAN countries over India- Pakistan ties and the arrest of an alleged Indian spy. Swaraj writes to Pakistan Foreign Affairs Advisor Sartaj Aziz on April 27th, 2017, requesting visa for Jadhav’s family.

Seeing no sign of cooperation from Pakistan’s side India decided to take a big and right step to save its innocent kidnapped citizen. On May 8th, 2017, India approaches the International Court of Justice at The Hague against Pakistan military courts decision. On the very next day, May 9th, 2017, ICJ stays Jadhav’s execution.


Mr. Harish Salve represented India as the Senior Council for the case.   

ISSUES RAISED IN THE CASE –

After ICJ’s stay order to Pakistan regarding Jadhav’s execution, on May 15th, 2017, India and Pakistan crossed swords at the ICJ over Jadhav’s case. Renowned lawyer Harish Salve represented India as the Senior Council for the case. Both the countries had submitted the written arguments of 375 pages with additional hundred pages of annexure. The public hearing for the case lasted for at least five days.

India had asked for restitution from Pakistan’s actions based on the following issues:

  1. Immediately suspension of the death sentence.
  2. Declaration that the sentenced by the Pakistani military court was “brazen defiance” of the Vienna Convention on Consular Relations (VCCR) and the International Covenant on Civil and Political Rights (ICCPR) since Pakistan had not given India consular access to Jadhav.
  3. Direction to Pakistan to annual the decision of the military court “as may be available to it under the law in Pakistan”.
  4. Declaration of the sentence as “illegal” and the release of Jadhav if Pakistan is unable to annul the decision.

Objection raised by Pakistan were that allegedly India’s abuse of process, abuse of rights and unlawful conduct. Pakistan also accused that India was using language to insinuate that military courts were “akin to kangaroo courts”. They also argued about the nationality of Kulbhushan Jadhav based on his passport.

ARGUMENTS –

The main ground based on which India dragged Pakistan to the ICJ was the breach of Article 36 of VCCR. Article 36 of VCCR talks about the rules that consular officers should have right to visit and access their nationals in a foreign state. Despite sending more than 16 requests for consular access, Pakistan never responded back to India. This act from Pakistan’s side is clear violation of Article 36 of the said treaty.

To reiterate the above said argument put forth by India, Pakistan claimed about a 2008 bilateral agreement on consular access between both the countries and said that this pact was the key play in the current situation, instead of the VCCR.

India asserted that the 2008 agreement could not supersede the 1963 VCCR agreement. Instead, it pointed out the relationship between bilateral treaties and VCCR. India also further stated that the domestic law cannot “be a defense for violation of international obligations”.

Pakistan argued about the VCCR’s article 36 that “not engaged until and unless the ‘sending state’ furnishes evidence of the nationality of the individual”. India retaliated to this argument by saying that all the communications, Pakistan had described Jadhav as an Indian national. India had further objected about the confession video by Jadhav which was shared by Pakistan. India claimed it to be a fake video and mentioned that they had conducted an independent forensic study which showed that the video was “anything but voluntary and a heavily edited version”.

Pakistan had also accused India for using language to indicate that military court was “akin to kangaroo courts” and that it was an unfortunate thing to say as both the country’s military courts share the same origin.

India asserted however that it had not used any such language or expression towards them as it would not bring any advance for the present case. Moreover, India lashed out and said that the claim of both country sharing same origin for military court is wrong. Indian military court does not have jurisdiction over the civilians, the military court can only try cases for military. Whereas Pakistan’s military court has jurisdiction over civilians to the exclusion of the regular criminal courts.

JUDGEMENT –

The ICJ delivered the judgment with an overwhelming majority of 15:1 ratio. The judgement delivered by the majority pointed out mainly with the question of violation of article 36 of VCCR. As per the court’s observation the main dispute between both the countries is about ‘consular assistance’ of arrest, detention, trial and sentencing of Kulbhushan Jadhav.

Both the countries besides being the members of VCCR are also members of “Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes” without any reservations or declarations.  The court had observed that the jurisdiction of the case comes about from Article 1 of the “Optional Protocol” and does not breaches any of the international treaties’ asides from VCCR. Therefore, it has legitimate jurisdiction under Article 1 of the Optional Protocol as alleged by the State of India regarding the violation of VCCR.

The three objections raised by the State of Pakistan regarding the Abuse of Power, Abuse of Rights and Unlawful Conduct by the State of India were dismissed and India’s application was admissible.

Further the court also held that Pakistan has acted in breach of the agreement and failed to fulfill its obligations as per Article 36 of VCCR. The State of Pakistan had failed to inform Kulbhushan Jadhav about his rights which he had under Article 36(1)(b), by not informing India about the arrest and detention of Jadhav and lastly by denying the access of Jadhav by the Consular Officers of India. These were all part of the VCCR agreement which Pakistan had agreed without any reservations or declarations. Hence, the court has found Pakistan of violations of international laws.

PROGRESS AFTER JUDGEMENT –

While the hearing of the case was under process, Pakistan had allowed the mother and wife of Jadhav to meet him on December 25th, 2017. Pakistan had allowed to this meeting on the ground of humanitarian grounds. This certainly was done by Pakistan to get an edge from ICJ side as showing itself as ‘humanitarian nation’.

After the judgement in July 2019, the Pakistan Government agreed to grant consular access to Jadhav. On September 2nd, 2019, the Indian representatives met with Kulbhushan Jadhav for about 2 hours. After the meeting with Jadhav, India alleged that Jadhav was under extreme pressure and was also forced to present a fake version of accounts which would have helped Pakistan to win the case. Subsequently, on September 11th, 2019 the State of Pakistan notified that it will not grant second consular access.

CONCLUSION –

Before Kulbhushan Jadhav’s case, ICJ had to tackle the similar question of law regarding VCCR and consular access in La Grand and Avena case. In both the cases ICJ granted analogous relief of “review and consideration” to the country in violation of consideration. Though the judgment only resulted in little success.

In the present case too, ICJ has given out the judgement where it has asked the State of Pakistan to review and consider about its decision regarding Jadhav. At the end, it’s all upon Pakistan what to do with Jadhav, as the order given out by the ICJ are not binding on the countries. The countries have the option of following the order given out by the ICJ or not.

If the Indian Government finds some effective way to mend the relationship with Pakistan, a harmonious resolution to the present problem could be found.

https://www.thehindu.com/news/national/kulbhushan-jadhav-case-a-timeline/article28492569.ece

https://www.icj-cij.org/en/case/168

https://thewire.in/law/full-text-kulbhushan-jadhav-icj-judgment

https://www.thehindu.com/news/national/icj-verdict-in-kulbhushan-jadhav-case-complete-vindication-of-indias-stand-mea/article28548968.ece

 

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