CASE COMMENTARY:  JADHAV CASE (INDIA V. PAKISTAN), I.C.J. 2019, p. 418

By: Anushka pandey

The International Court of Justice (ICJ) is the principal judicial organ of the United Nations. It was established by the United Nations Charter in June 1945 and began its activities in April 1946. The seat of the Court is at the Peace Palace in The Hague (Netherlands). Of the six principal organs of the United Nations, it is the only one not located in New York. 

Pakistan’s military court decided to award death sentence to Kulbhushan Jadhav (Indian ex-navy officer) in a secret trial on the charge of espionage. India approached ICJ seeking provisional measures for the stay of Jadhav’s execution in light of this. The Indian Government instructed the team led by Senior Advocate Harish Salve to represent the country at ICJ. And on the other hand the Counsel, Mr. Khawar Qureshi, Legal Counsel & Advocate, appeared on behalf of the Islamic Republic of Pakistan.

Facts of the Jadhav case

On 3^rd march 2016, Kulbushan Sudhair Jadhav, the 50-year-old retired Indian Navy officer was arrested by Pakistan. On 24^th march 2016, Pakistani military and law enforcement agencies accused him of being a spy, having crossed over from Iran and was caught in Balochistan. In the meanwhile, Pakistan also shared a video, wherein Jadhav is seen confessing to the allegations leveled against him. Later however, The Ministry of External Affairs rejected the video saying it was doctored and fake.

On 23^rd of January 2017, the eternal affairs minister of Pakistan sent a letter of Assistance for criminal investigation against Indian national Kulbhushan Jhadav to the High Commission of India but no response was received. Later on, 29^th march 2017, all the allegation over jhadhav was claimed baseless as he is a retired Indian navy officer by India. Commission stated that Mr. Jhadav was allegedly kidnapped by Pakistani officials from Iran where he was running a business in the port city of Chabahar after a “premature retirement” from the Navy.

The Indian government also sought consular access for Mr. Jhadav from Islamabad which was denied. And as many as 16 requests from new Delhi were turned down by Pakistani authority for over a year. Then on 10^th of April 2017, the Pakistani military sentenced Kulbhushan Jhadhan to death on the account of ‘Espionage and Terrorism’. The Indian government on 14^th april 2017 demanded an authentic copy of the charge sheet. They also asked for the verdict of the Court of Pakistan according to which Jhadav was sentenced to death and request access for consular for Jhadhav.

Appeal to International Court of Justice

Later on, 8^th may 2017, India knocked the doors of The International Court of Justice at Hague Netherlands alleging that Pakistan has violated the Vienna Convention on Consular relations of 24^th April 1963 in the matter of the detention of Mr. Kulbhushan Jhadhav. He had been sentenced to death by Pakistani official in April 2017. India also claimed that Pakistan had not informed about the detention of the Indian national at the time of arrest.

India further contended that Mr. Jhadhav had not been informed of his rights under Article 36 of the Vienna Convention on Consular Relations. And Indian Consular had been denied access to Mr. Jhadhav while he was in the prison and had been unable to arrange his legal representation. As the basis for the Court’s jurisdiction, India referred in its Application, the Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes as per to the Article 36, paragraph 1, of the Statute of the Court and Article I.

India also approached ICJ seeking provisional measures for the stay of Jadhav’s execution. ICJ gave the decision in favor of India “Pakistan shall take all measures to ensure that Jadhav is not hanged until a final decision by the court” on 18^th may 2017. 

Issue raised

1. Whether the sentence awarded by Pakistan’s Military Court is illegal?
2. If Pakistan has violated the standards laid down by the Vienna Convention on Consular Relations (VCCR) and International Covenant on Civil & Political Rights (ICCPR) by not granting Consular access to Kulbushan Jadhav?
3. Whether or not the ICJ had jurisdiction to preside over the present matter and entertain an application therein?
4. Whether the Vienna Convention on Consular Relations were implicitly inapplicable in cases of terrorism or espionage?
5. Is “Pakistan’s demand correct that India should assist in the investigations of the case concerning Jadhav which will serve as a precondition to granting consular access to India pursuant to Article 36 acceptable or is the obligation under Article 36” unconditional?
6. Whether the 2008 bilateral agreement entered into between India and Pakistan supersede the already existing Vienna Convention on Consular Relations?
7. Whether the rights enshrined in the bilateral agreement limit the applicability of VCCR?
8. Does ICJ has jurisdiction in the present matter under Article 1 of the Options Protocol?

JUDGEMENT OF JADHAV CASE 

The ICJ delivered the judgment with an overwhelming majority of 15:1 ratio. The judgment 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 countries is about ‘consular assistance’ of arrest, detention, trial, and sentencing of Kulbhushan Jadhav.

In its judgment of 17 July 2019, The Court concluded that India’s Application was admissible. Before concluding that it had jurisdiction to entertain India’s claims based on alleged violations of the Vienna Convention it first outlined the background of the dispute. The Court next addressed the three objections to admissibility, raised by Pakistan. This was based on India’s alleged abuse of process, abuse of rights and unlawful conduct

The Court examined, in turn, each of Pakistan’s three contentions concerning the applicability of the Vienna Convention. The Court concluded that the Vienna Convention was applicable in the case after finding that none of the arguments raised by Pakistan could be upheld. 

Next, the Court examined India’s claim that Pakistan had acted in violation of its obligations under Article 36 of the Vienna Convention, by failing to inform India, without delay, of Mr. Jadhav’s detention. The Court observed that Pakistan did not contest India’s declaration  that Mr. Jadhav had not been informed of his rights under Article 36, paragraph 1 (b), of the Convention. Hence it concluded that Pakistan had breached its obligation under that provision.

Court’s final decision

The Court then pointed out that Pakistan had notified India of Mr. Jadhav’s arrest and detention on 25 March 2016, some three weeks after his arrest. The Court considered that Pakistan had thus breached its obligation to inform the consular post “without delay”. This was required by Article 36, paragraph 1 (b), of the Vienna Convention. These were all part of the VCCR agreement which Pakistan had agreed without any reservations or declarations. Hence, the court has found Pakistan to be in violation of international laws. 

With regard to India’s contention for following:

1. it was entitled to restitutio in integrum,
2. its request for the Court to annul the decision of the military court
3. restrain Pakistan from giving effect to the sentence or conviction
4. its request for the Court to direct Pakistan to take steps to annul the decision
5. release Mr. Jadhav and clear the way for his safe passage to India,

the Court found that the submissions made by India could not be upheld.

However, that Pakistan was under an obligation to provide, by means of its own choosing, effective review and reconsideration of the conviction and sentence of Mr. Jadhav. This was to ensure that full weight was given to the effect of the violation of the rights set forth in Article 36 of the Vienna Convention.

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 on the ground of humanitarian grounds. 

After the judgement in July 2019, the Pakistan Government agreed to grant consular access to Jadhav. On 2^nd september2019, the Indian representatives met 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 video which would have helped Pakistan to win the case. Later on 11^th September, 2019 Pakistan notified that it will not grant another consular access to Jhadav.

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 this 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.