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Kulbhushan Jadhav Case

Kulbhushan Jadhav Case:

  • Born 16 April 1970
  • Place Sangli, Maharashtra
  • Nationality Indian
  • Occupation naval officer

The International Court of Justice in the India vs. Pakistan case, also referred as the Kulbhushan Jadhav case held Pakistan to be in violation of its obligation under the Vienna Convention and directed it to provide unimpeded consular access to Mr. Jadhav. More than a year has passed after the ICJ gave its judgement however Pakistan has not yet provided Mr. Jadhav was an unimpeded and credible consular access and have time and again failed to comply with the letter and spirit of the ICJ's judgement. The ICJ also required Pakistan to provide Mr. Jadhav with an effective review and reconsideration of his conviction and sentence, which also has not been effectively complied by Pakistan.

Background of the case:
The ICJ in its judgement noted that Mr. Jadhav has been in the custody of the Pakistani authorities since 3rd March 2016 however the circumstances of his arrest remain in dispute as India contended that Mr. Jadhav was kidnapped from Iran, where he was residing and carrying on business after retiring from the Indian Navy and was subsequently transferred to Pakistan and detained for interrogation.

Pakistan on the other hand contented that Mr. Jadhav was arrested in Balochistan, near the border with Iran, after illegally entering the Pakistani territory with an Indian passport bearing the name of 'Hussein Mubarak Patel'. Pakistan thereafter booked Mr. Jadhav for performing the acts of espionage and terrorism on behalf of India, which was vehemently denied by India.

The trial of Mr. Jadhav as per the submissions by Pakistan, started on 21st September 2016 and was conducted before a Field General Court Martial. He was tied under Section 59 of the Pakistan Army Act of 1952 and Section 3 of the Official Secrets Act of 1923. After conducting the trial for less than seven months, Mr. Jadhav was sentenced to death by the Field General Court Martial on 10th April 2017.

The High Commission of India in Islamabad transmitted to Pakistan an appeal against the sentence of death penalty on behalf of Mr. Jadhav's mother and a petition to the Federal Government of Pakistan under Section 131 of the Pakistan Army Act. On 22nd June2017 the Inter Service Public Relations of Pakistan issued a press release stating that Mr. Jadhav had made a mercy petition to the Pakistani Chief of Army Staff. However the status of both the appeal and the mercy petition were not further communicated to India by its Pakistani counterpart.

The Case at the ICJ:
both India and Pakistan were parties to the Vienna Convention and the Optional Protocol to the Vienna Convention on Consular Relations Concerning the Compulsory Settlement of Disputes . after failing to amicably resolve the dispute with Pakistan, sought it best to approach the Hon'ble International Court of Justice under Article 36 paragraph 1 of the Statute of the International Court of Justice and Article 1 of the Optional Protocol. On 8 May 2017, India filed an Application before the ICJ instituting proceedings against Pakistan.

the Court's view the primary dispute between India and Pakistan was concerning the Consular assistance with regard to the arrest, detention, trial and sentencing of Mr. Jadhav. India also submitted that Pakistan has violated Mr. Jadhav's elementary human rights, which are to be given effect as mandated under Article 14 of the International Covenant on Civil and Political Rights, 1966.

  1. by not informing India, without delay, of detention of Mr. Jadhav
  2. by not informing Mr. Jadhav of his rights under Article36
  3. by denying consular officers of India access to Mr. Jadhav. Pakistan on Article 36 of the Vienna Convention contended that the same does not apply in prima facie cases of espionage.

The majority of the judges, on the applicability of Article 36 of the Vienna Convention, sided with India by holding that Pakistan breached its obligation under the treaty by not informing Mr. Jadhav of his rights under Article 36 and by informing India about the arrest of Mr. Jadhav after a considerable delay of three weeks, which constituted a breach of the obligation to inform 'without delay' as required by Article 36 of the Vienna Convention.

The Court was also of the view that Pakistan had breached its obligations incumbent on it under Article 36 by denying Mr. Jadhav access to the consular services provided by the Indian High Commission at Pakistan. Not informing about his rights and denying consular access to Mr. Jadhav by Pakistan were considered as internationally wrongful acts of a continuing character.

Accordingly, the Court was of the view that Pakistan is under an obligation to cease act which constituted a breach of its obligations and to comply fully with its obligations under Article 36 of the Vienna Convention. Consequently, Pakistan was directed to inform Mr. Jadhav without further delay of his rights under Article 36. the submissions under Article 36 of the Vienna Convention, India also submitted before the ICJ that the Court must declare the sentence handed down by Pakistan's military court as violative of international law and the provisions of the Vienna Convention.

The Court however refused to pass any directions in this regard primarily because the Court's jurisdiction in the present matter was just limited to the interpretation or application of the Vienna Convention and does not extend to India's claims based on any other rules of international law. However the Court did hold that Pakistan was under an obligation to provide 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.

Finally, the Court as a provisional measure, directed Pakistan to take all measures at its disposal to ensure that Mr. Jadhav is not executed pending the final decision in the present proceedings. The Court also considered that a continued stay of execution constituted an indispensable condition for the effective review and reconsideration of the conviction and sentence of Mr. Jadhav. The Judgement was delivered by the ICJ on 17th July 2019.

Consular access to Jadhav:
The ICJ delivered its judgement in favour of providing consular access to Mr. Jadhav on 17th July 2019, the first consular access to Mr. Jadhav took place on 2 September2019, when the Indian deputy high commissioner Gaurav Ahluwalia had met with Jadhav at a specially created sub-jail in the presence of Pakistani officials. The meeting lasted for nearly two hours which also was recorded by the officials.

The then official spokesperson of the Ministry of External Affairs Government of India issued a public statement after the meeting saying that Mr. Jadhav appeared to be under extreme pressure to parrot a false narrative to bolster Pakistan's untenable claims. on July 16th, 2020 the official spokesperson of MEA issued a statement condemning Pakistan's failure to provide unimpeded and unconditional consular access to Mr. Jadhav. The official spokesperson stated that over the past year, India had requested Pakistan more than twelve times to provide unimpeded, unhindered and unconditional consular access to Mr. Jadhav, who remains to be incarcerated in the Pakistani Custody since 2016.

Even Mr.Jadhav's death sentence:
The ICJ's directives, Mr. Jadhav was to be given all the opportunities and afforded all the resources for the effective review and reconsideration of his conviction and sentence. Accordingly in May 2020, the Government of Pakistan promulgated an ordinance named the International Court of Justice Review and Reconsideration Ordinance, 2020 which mandated that a petition for review and reconsideration of conviction by military tribunal could be made to the Islamabad High Court through an application within 60 days from the day the ordinance was brought into force.

The petition under this Ordinance could be filed by Mr. Jadhav himself, a legally authorised representative or a consular officer of the High Commission of India in Islamabad. As per the Pakistani authorities, Mr. Jadhav was invited to file a review petition for his sentence and conviction but it was claimed that Mr. Jadhav refused to file a petition for review and conviction and rather insisted to follow up on his pending mercy petition. India however dismissed this claim by Pakistan and saw it as a sign of coercion.
  • Article 60 Statute of the International Court of Justice states that the judgement delivered by ICJ shall be final and without any appeal. Further even Article 94(1) of the Charter of the United Nations states that each member of the United Nations (UN) undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.

    Both India and Pakistan, being parties in the case and members of the UN have to comply with the judgement of the ICJ.Pakistan has time and again failed to honour their part of the obligation and has failed to comply with the letter and spirit of the ICJ's judgement by not providing unimpeded, unhindered and unconditional consular access to Mr. Jadhav.

    An unimpeded consular access would mean a meeting in an environment free from the fear of intimidation and reprisal, where Indian officials would be able to have a private, confidential conversation with Jadhav, without being heard or recorded. At two instances consular access was being offered but they were neither meaningful nor credible and were not in consonance with the ICJ's directives and the understanding between both the governments. eminent lawyer Shri Harish Salve, who also represented India in the Jadhav case, has said that the Government of India might have to go back to the ICJ since Pakistan has shown no signs of implementing the July 2019 judgement, the proper course however would be to approach the United Nations Security Council.

    Article 94(2) of the Charter of the United Nations states that if any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the ICJ, the other party may have recourse to the Security Council, which may if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment. The powers provided to the Security Council under Art. 94(2) are discretionary powers and the same has been conferred upon to make recommendations or take appropriate measures that are necessary to give effect to the ICJ judgments.

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