The International Court of Justice ordered Pakistan on Wednesday to review the death sentence for Indian spy Kulbhushan Jadhav, in a ruling hailed by nuclear rival New Delhi as a “complete victory”.
Former Indian navy officer Kulbhushan Sudhir Jadhav was arrested in Pakistan’s restive southwestern province of Balochistan in March 2016, and the case has stoked tensions between the two countries.
Judges at the UN’s top court ruled Pakistan had breached the Vienna Convention on diplomatic relations, which gives countries the right to consular access when their nationals are arrested abroad.
It has asked Pakistan to review Jadhav’s death sentence. It ruled that the Vienna Convention is applicable even if Jadhav is a spy.
It has rejected three of Pakistan’s objections to India’s petition admissibility. The judge said there is no basis to conclude that India has abused its procedural rights to request the court’s intervention in the case.
The court finds it has jurisdiction to entertain India’s claims based on alleged violations of the Vienna Convention, the judge said. India was under no obligation to consider other dispute reconciliation mechanisms, which Pakistan had based its objection on, said the judge. Its objection on alleged non-compliance cannot be upheld, it said.
The court said it does not consider this an exceptional circumstance that warrants rejecting India’s claims the grounds Pakistan has argued. Pakistan’s second objection — that India had abused various rights under international law — has also been rejected. Pakistan has argued that India refused to provide evidence of Jadhav’s Indian citizenship, such as his passport with his real name, and failed to engage in its request for help in the criminal investigation into his activities. However, the judge said that Pakistan had at numerous instances acknowledged that Jadhav was an Indian. It cited a letter sent by the Foreign Office to the Indian High Commission in which it also referred to him as an Indian.
The International Court of Justice told Pakistan on Wednesday to review the death sentence for an alleged Indian spy, saying Islamabad violated his rights to consular visits, according to AFP.
It ordered Pakistan to review the death sentence, ruling that Islamabad had violated New Delhi’s rights to consular visits after his arrest. The Hague-based ICJ ordered the “effective review and reconsideration of the conviction and sentence”, according to a document on the court’s website.
Judges at the UN’s top court ruled Pakistan had breached the Vienna Convention on diplomatic relations, which gives countries the right to consular access when their nationals are arrested abroad. Pakistan “deprived the Republic of India of the right to communicate with and have access to Mr Kulbhushan Sudhir Jadhav, to visit him in detention and to arrange for his legal representation”, the judges said.
“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,” it ruled.
The court observed that Pakistan argued that an individual convicted of espionage does not need to be informed of his rights, therefore it can be concluded that Pakistan did not inform him of his rights.
The court noted that the competent authorities must without delay inform the sending state and observed that Pakistan was under an obligation to inform the Indian consulate of his arrest and failed to do so. However, the Vienna Convention does not specify how the state should inform the sending state. Pakistan’s actions on March 25, 2016 were considered a notification to India under Article 36 of the Vienna Convention, according to the court. Its Foreign Office summoned the high commissioner to explain the case. This action enabled India to make counselor access on the same day.
Pakistan claimed that on March 3, 2016 Jhadav was arrested in possession of an Indian passport and the court ruled there was sufficient grounds for arrest.
There was a delay of three weeks between the arrest and the notification to India, and the court recalled that the terms of the Vienna Convention are to be interpreted as immediate. Without delay phrase may not have another interpretation and the court found that Pakistan violated the Convention by notifying India three weeks late.
India’s contentions include Pakistan’s failure to provide consular access to Jadhav. The court noted that counselor officers should be free to communicate with the prisoner and visit them.
It is undisputed that Pakistan has not granted any Indian counselor access to Jhadav and that India has made repeated requests, said the judge. He said Pakistan responded for the first time on March 21, 2017.
The judge said India’s lack of cooperation in the investigation does not justify Pakistan’s denial of consular services to the prisoner. Counselor officers have the right to arrange legal representation but Pakistan said that Jhadhav was allowed to choose a lawyer.
The court concluded that Pakistan breached is obligation by denying the India counselor his right to be visited and arrange for legal representation. Having concluded that Pakistan breached three clauses of the Vienna Convention, the court will now determine Pakistan’s abuse of rights.
The court says the Vienna Convention lays down certain laws to be followed by all member states and that there is no basis under the Convention for a state to abuse its rights. Otherwise, the whole system of counselor assistance would be severely undermined, it ruled. None of Pakistan’s allegations justifies its breaches and its arguments cannot be upheld.
India asked the court to declare the death sentence is in violation of the Convention and release Jhadav. The court said Pakistan already breached the Conventions.
The court recalled its jurisdictions has its spaces and is limited and that it does not extend to India’s claims of any other international law. It noted, however, that the remedy is to provide what falls within its jurisdiction, namely Pakistan’s breach of the Vienna Convention.
It said it considers that it’s not the conviction and sentence of Jhadav that are regarded as a breach of the Convention. On India’s request to annul the military court sentence and to direct Pakistan to take a step in that direction, the court found that this submission cannot be upheld.
The principle of international law is that any breach of an engagement involves reparation which wipes out all consequences of the said illegal act. The court considers the appropriate remedy in this case to be effective review and reconsideration of Jhadav’s sentence.
There is evidence that Jhadhav appealed to the military court against his sentence, which was confirmed by the COAS. He has made a mercy petition to the COAS and his mother has sought to file a petition with the government of Pakistan but there is no evidence before this court to indicate the outcome of this petition, read the judge. It noted that the high court of Pakistan can exercise a review according to Pakistani law.
The court can confirm that the clemency process is not sufficient in itself as an appropriate means of review but it can supplement judicial review. The evidence before the court suggests that two clemency procedures are available — a mercy petition to the COAS and one to the president within 90 days of the petition to the COAS. The mercy petition has, however, not been made known to the court.
In light of these circumstances, a review of the sentence must be effective. The court takes full cognisance of representation made by Pakistan and the the right to a fair trial cannot be taken away, it said. The process of judicial review is always available, it said, quoting Pakistan’s Constitution.
The court pointed out that fair trial is of cardinal importance. Pakistan shall tackle all measures to provide for effective review and consideration, including if necessary, by enacting necessary legislation.
Court says Pakistan must take measures to ensure that Jhadav is not executed till final proceedings.
The legal teams of both India and Pakistan are at The Hague for the verdict.
Jadhav, a commander of the Indian Navy associated with Indian spy agency Research and Analysis Wing, was arrested on March 3, 2016, from Balochistan on allegations of espionage and terrorism. During his subsequent trial in a military court, Jadhav confessed to his involvement in terrorist plots. The army chief endorsed on April 10, 2017, the death penalty for Jadhav.
On June 22 the same year, he filed a mercy petition against the death penalty in which he confessed to his involvement in espionage and terrorism plots.
India, however, claimed that Jadhav is not a spy and challenged his death sentence.
The ICJ urgently ordered Pakistan in 2017 to stay the execution of Jadhav, pending hearings on the broader Indian case that took place earlier this year in The Hague.
India also accused Pakistan in 2017 of harassing Jadhav’s family during a visit, saying their meeting was held in an “atmosphere of coercion”.
Islamabad reacted coolly to the ICJ’s urgent order to stay Jadhav’s execution at the time, saying it “has not changed the status of Commander Jadhav’s case in any manner”.