Consular access granted to India, complex legal battle ahead
THE HAGUE: In a much awaited and sensational case ofIndian national Kulbhushan Jadhav, the International Court of Justice (ICJ) announced its verdict on Wednesday (17th July) ruling that Jadhav be allowed consular access immediately and asking Pakistan to ensure “effective review and reconsideration of his conviction and sentences”. The ICJ, however, did not accept all other remedies sought by India,whichincludedthe annulment
of the military court decision convicting Jadhav, restricting Pakistani from executing the sentence,securing Jadhav’srelease and ordering his return to India.The decisionwasfifteen votesto one, with ad hoc judge Tassaduq Hussain Jillanifrom Pakistan delivering the dissenting vote
In its order, the world court ordered Pakistan to review a 2017 military court verdict to execute an Indian naval officer convicted of espionage. The case revolves around the fate of Kulbhushan Sudhir Jadhav, arrested by Pakistan in 2016 after allegedly entering the country from Iran, and accused of fomenting “terrorist activities” in the restive southwest province of Baluchistan. Pakistani authorities have pointed to Jadhav’s arrest as evidence of India’s involvement in militancy in the volatile province where the Pakistanmilitary isfighting a long-running separatist insurgency. India deniesJadhav is a spy and brought his case before the International Court of Justice (ICJ), the top United Nations legal body for hearing disputes between states, arguing that the Indian citizen had been given an unfair trial and denied diplomatic assistance by Islamabad. According to legal experts, thisis unprecedented in terms of establishing ICJ’s jurisdiction over a case that was tried in Pakistan. It was Modi government’s consistent efforts to prove innocence of KJ, which dragged this entire matter to international court. The consular access was the main demand of India, which was granted by the court And this accessis bound to affect the credibility of confessional evidences used by the military court. The experts opined that it will complicate Pakistan’s efforts to prove the alleged charges against him henceforth, every action by Pakistan will be closely monitored by ICJ and international public opinion and hence bring in bigger challenges. “It will be open to India to approach ICJif Pakistan failsto prove that ‘fair process’ to ‘review the conviction”, the experts commented strengthening New Delhi’s position. In May 2017, the ICJ had ordered Pakistan to stay the execution ofJadhav until the 11-member court gave its final decision. Pakistan and India regularly convict each other’s citizens of espionage but executions are rare.
In a fresh ruling on Wednesday, the ICJ ordered Pakistan to review and reconsider the conviction and sentence of Jadhav “by the means ofits own choosing…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 Convention.” The court also ordered Pakistan to grant India consular access to Jadhav, saying Islamabad had deprived India of the right to communicate with and have access to the convict, to visit himin detention and arrange for his legal representation. The court also ruled that Islamabad had breached its obligations under the Vienna Convention on Consular Relations by not notifying the appropriate Indian consular post in Pakistan of Jadhav’s detention, “thereby depriving theRepublic ofIndia ofthe right to render the assistance provided for by theViennaConvention to the individual concerned.” “The IslamicRepublic of Pakistan is under an obligation to inform Mr. Kulbhushan Sudhir Jadhav without further delay of his rights and to provide Indian consular officers access to him in accordance with Article 36 of the Vienna Convention on Consular Relations,” the court said. In a video recorded by Pakistani authorities,Jadhav was heard confessing to being assigned by India’sintelligence service to plan, coordinate and organize espionage and sabotage activitiesinBalochistan “aiming to destabilize and wage war against Pakistan.” India then asked the ICJ for the injunction barring Pakistan from executing Jadhav. Pakistan has maintained that the ICJ need not intervene in the case as the Vienna convention on consular relations did not apply to “spies and terrorists,” and also that a 2008 bilateral treaty with India, that Pakistan says supersedes the Vienna pact, allowed the right to consular accessto be waived where “national security” was at risk. Islamabad has also noted that Jadhav’s sentence was subject to appeal and he wasin no immediate danger of execution. The ICJsaid that even though it had found Pakistan in violation of Article 36 the Vienna Convention onConsularRelations(VCCR), “it is not the conviction and sentence of Mr. Jadhav which are to be regarded as a violation of Article 36 of the Vienna Convention.” The most the ICJsaid it could do was to order Pakistan to cease violation of Article 36 and review the case in light of how that violation may have affected the case’s outcome. “TheCourt notesthat Pakistan acknowledges that the appropriate remedy in the present case would be effective review and reconsideration of the conviction and sentence,” it observed. To this end, Pakistan was directed to immediately inform Jadhav of his rights under Article 36, grant India consular access, and then review the case while considering, under the laws of Pakistan, how not doing so earlier may have impacted the case’s outcome. “The Court considers that the violation of the rights set forth in Article 36, paragraph 1, of the Vienna Convention, and its implicationsforthe principles of a fairtrial, should be fully examined and properly addressed during the review and reconsideration process,” the court directed. “In particular, any potential prejudice and the implications for the evidence and the right of defence ofthe accused should receive close scrutiny during the review and reconsideration,” it said. “The Court notes that the obligation to provide effective review and reconsideration can be carried out in various ways. The choice of meansisleft to Pakistan,” it added. However, itstressed that, “Pakistan shall take all measures to provide for effective review and reconsideration, including, if necessary, by enacting appropriate legislation.” While that matter is decided, Pakistan has been directed to suspend the execution of the death penalty awarded to Jadhav. Pakistan’s team, headed by Attorney GeneralAnwarMansoorKhan, had reachedTheHague earlierin the day to hearthe verdict.The teamalso included Foreign Office Spokesperson Dr Muhammad Faisal.