Kalbhushan Jhadav – the legal battle


By Akhtar Nawaz 

​CASE of Indian national KulBhushan Jhadav is set to be heard by the International Court of Justice (ICJ) from February 18th. The case has been much discussed and debated in media in not only India and Pakistan but globally also. Still, in all those debates and discussions, the legal grounds of the case have been obscured.

​Jhadav was arrested by the Government of Pakistan in March 2016 from Balochistan province on the charges of terrorism and spying for the RAW, India’s intelligence agency. In April 2017, a Field General Court Martial sentenced Jhadav to death following a confession by Jhadav before the magistrate and the court.

​In May 2017, Indian authorities approached ICJ in Jhadav case on the plea that Pakistan did not provide consular access to Jhadav, and this denial of consular access was in violation of Article 36(1) of the Vienna Convention on Consular Relations (VCCR). According to this clause, if a foreign national is detained or arrested by a country, that foreign national has the right to access and consultation with the officials of that foreign national consulate.

​India further argued that ICJ has the jurisdiction in this case because both India and Pakistan have signed the Optional Protocol to the VCCR that allows ICJ to be approached in case there is a dispute between any of the contracting parties related to the said treaty, i.e. VCCR.

​However, Jhadav was no ordinary foreign national that was arrested. Pak Government alleges that he was involved in terrorism and espionage in Pakistan. Pakistan further argued that VCCR does not apply to spies or terrorists due to the inherent nature of these crimes. Moreover, India and Pakistan have signed a bilateral agreement in 2008 which overrides the obligations under VCCR.

​When India took this case to ICJ, it requested the court not only to annul the death sentence of Jhadav but also to direct Pakistan to release Jhadav. Here, we should keep in mind that the jurisdiction of ICJ in this matter goes only as far as consular access is concerned, and nothing more than that.

​To probe the case in detail, on May 18, 2017, the ICJ directed Pakistan to stay the execution of the death penalty awarded to Jhadav. Subsequently, both Pakistan and India have submitted their detailed arguments in the court. The final decision of the court is expected to be announced in a couple of weeks.

​The only thing to be decided by the court is whether Jhadav had a right under international law to consular access or not. Pakistan has highlighted in front of the global community that Jhadav is a terrorist who orchestrated many terrorist attacks inside Pakistan and he was involved in espionage activities.

Pakistan arrested him; gave him a fair trial under the laws of the land; found him guilty; and sentenced him to die. It is hoped that ICJ would see through the rhetoric of India’s plea to get Jhadav released when there is no legal grounds for that. Moreover, it can also be hoped that given the terrorist activities of Jhadav, his right to consular access is not accepted by ICJ.