Kulbhushan Jadhav
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Contents |
The background
2016-Feb 2019
July 17, 2019: The Economic Times
(With inputs from agencies)
From: July 18, 2019: The Times of India
See graphic:
The Kulbhushan Jadhav case, 2016-Feb 2019
Kulbhushan Jadhav case: What you need to know before the verdict
India moved the ICJ in May 8, 2017 for the "egregious violation" of the provisions of the Vienna Convention by Pakistan by repeatedly denying New Delhi consular access to Jadhav.
The International Court of Justice will deliver its verdict today at 3 pm (6.30 pm IST) in a case relating to Indian national Kulbhushan Jadhav, whose death sentence by a Pakistani military court based on an "extracted confession" has been questioned by India.
India is hoping for a favourable verdict at The Hague-based International Court of Justice (ICJ), which could pave the way for Jadhav's release. But before that here's all that you need to know about this case, which has evoked a sharp reaction in India.
Kulbhushan Jadhav, 49, who is on death row in Pakistan on charges of spying for India’s intelligence agency, the Research and Analysis Wing, is a retired Indian Navy officer. The Pakistani military court sentenced Jadhav on charges of "espionage and terrorism" after a closed trial in April 2017.
India moved the ICJ in May 8, 2017 for the "egregious violation" of the provisions of the Vienna Convention by Pakistan by repeatedly denying New Delhi consular access to Jadhav.
Rubbishing Pakistan’s claims that Jadhav was arrested on March 3, 2016, from Pakistan’s Balochistan province, India had said that the retired Indian Navy officer was kidnapped from Iran, where he was running a business. India has based its case on two broad issues – breach of the Vienna Convention on consular access and the process of resolution.
India has sought annulment of Jadhav’s death sentence and his immediate release, saying the verdict failed to satisfy even the minimum standards of due process. In December 2017, Jadhav’s mother and wife travelled to meet him in Pakistan.
India called the exercise “lacking in any credibility” and said the “overall atmosphere of the meeting was intimidating”. Jadhav’s mother and wife were forced to change their clothes and not allowed to speak in their mother tongue, and his wife’s shoes were never returned, the external affairs ministry said.
There is a possibility that the ICJ may ask Pakistan to hold a fresh trial of Jadhav in the background of two cases involving Indians in Pakistani jails. Sarabjit Singh, who was given the death sentence on charges of espionage, died in an attack by other inmates after languishing in Pakistani jail for 22 years.
In February, India presenting its case in the Jadhav case in ICJ, asserted that Pakistan had nothing beyond an extracted confession.
Representing India advocate Harish Salve said, “Pakistan claims to have clinching evidence on the basis of articles in the Indian press. The story contradicts facts in Pakistan’s FIR.”
Responding to Pakistan’s questions about Jadhav’s nationality, Salve said that Jadhav is a former Indian Navy officer, which is proof of his nationality. “Unlike Pakistan, India has never needed to deny nationality of its nationals. Indian nationals are not the kind whose nationality needs to be denied.” He argued that Pakistan had made three attempts to derail proceedings in the ICJ, all of which failed.
He said Pakistan did not uphold Article 36 of the Vienna Convention which states that consular access applies to all nationals, regardless of espionage claims.
Salve said that the ICJ had already upheld the importance of consular access under Article 36 in two previous cases — LaGrand (Germany vs USA) and Avena (Mexico vs USA).
Pakistan, on its part, accused India of using the ICJ for “political theatre” as it urged judges to dismiss India’s case seeking to save Jadhav from execution.
Pakistan Foreign Office spokesperson Muhammad Faisal said that Pakistan has fully contested the case before the ICJ.
"Pakistan was hoping for the best and would accept the decision of ICJ," he was quoted as saying by state-run Associated Press of Pakistan.
2019: ICJ asks Pakistan to review death sentence
Sachin Parashar, July 18, 2019: The Times of India
From: Sachin Parashar, July 18, 2019: The Times of India
In a major legal and diplomatic victory for India, the International Court of Justice in The Hague held that Pakistan violated the Vienna Convention in the Kulbhushan Jadhav case and it should review and reconsider his conviction and sentencing while allowing India consular access to him.
Importantly, the ruling said the stay on the death sentence pronounced on Jadhav must remain. “The court considers that a continued stay of execution constitutes an indispensable condition for the effective review and consideration of the conviction and sentence of Jadhav,” the court said.
Rejecting all major contentions put forward by Pakistan, the ICJ said the Vienna Convention was applicable in the Jadhav case regardless of allegations that he was engaged in espionage. “Pakistan must inform Jadhav without further delay of his rights under Article 36 (of the Vienna Convention) and allow Indian consular officers to have access and arrange for his legal representation,” it said.
Details
Sachin Parashar, July 18, 2019: The Times of India
The International Court of Justice indicated its unhappiness with the judicial process in Pakistan regarding Kulbhushan Jadhav, and said, “The court considers it imperative to re-emphasise that the review and reconsideration of the conviction and sentence of Jadhav must be effective.” This amounts to an indictment of Jadhav’s trial in secret military “black” courts where the evidence against him and his legal defence remains unknown.
The decision means that Jadhav will continue to be protected from the death sentence as Pakistan may find it difficult to risk international criticism by ignoring the ruling. Though Pakistani commentators sought to play down the setback, arguing that the ICJ did not order Jadhav’s release, the court clearly said Pakistan was “under obligation” to review the conviction.
The ICJ rejected Pakistan’s contention that it had no jurisdiction and that India’s complaint was not admissible. It also held that the 2008 India-Pakistan bilateral agreement in no way trumped Islamabad’s obligations under the Vienna Convention. TOI had reported that the ICJ was likely to find that Pakistan had violated Article 36 of the Vienna Convention in denying consular access to Jadhav. The MEA too welcomed the ruling, saying justice had been delivered. “We note that Pakistan is under obligation to inform Jadhav without further delay of his rights and to provide India consular access to him in accordance with the Vienna Convention. We expect Pakistan to implement the directive immediately. We will continue to work vigorously for Jadhav’s early release and return to India,” MEA spokesperson Raveesh Kumar said.
The ICJ ruling could mean that Pakistan will need to try Jadhav in a more transparent manner. Even if the prospects of the Indian national getting a fair trial in any form are dim, it will mean a scrapping of the military court verdict. It remains to be seen whether Pakistan adheres to the ruling or drags its feet over any effective review as ordered by the ICJ.
The judgment was also in line with its earlier rulings in the Avena and LaGrand cases, both related to alleged violation of the Vienna Convention, where it had held the US guilty. While the court unanimously found that it had jurisdiction to entertain India’s plea, its other rulings were delivered 15 to 1. The dissenting judge was a Pakistani national, Tassaduq Hussain Jilani, an ad hoc judge brought in to give representation to Pakistan.
The ICJ held that the appropriate reparation in this case meant “that full weight is given to the effect of the violation of the rights set forth in Article 36 of the Vienna Convention”.
While the court left the choice of an “effective” review to Pakistan, it also held the obligation to provide effective review and reconsideration was “an obligation of result” which “must be performed unconditionally”. Consequently, the court said, Pakistan shall take all measures to provide for effective review and reconsideration, including, if necessary, by enacting appropriate legislation.
How India won the legal battle
July 18, 2019: The Times of India
How India won the legal battle
New Delhi:
After a Pakistani military court awarded death sentence to Kulbhushan Jadhav, India was left with no other option but to approach the ICJ for relief in 2017. India maintained all along that Jadhav was a civilian who was kidnapped and moved to Pakistan by armed groups and that Islamabad was using him to blame India for its problems in Balochistan.
According to India, Jadhav was denied the right to be defended by a legal counsel of his choice. His conviction and death sentence was based on “confessions” taken in captivity, India maintained. India’s case was all along built around the fact that Pakistan was in breach of Article 36(1) (b) of the Vienna Convention on Consular Relations (VCCR) which obliged Pakistan to inform India of the arrest of an Indian national “without delay”. Jadhav was purportedly “arrested” on March 3, 2016, and it was only on March 25, 2016, that the Pakistani foreign secretary informed the Indian high commissioner in Islamabad of this “arrest”. According to Indian authorities, Pakistan never offered any explanation as to why it took over three weeks to inform the Indian high commissioner of Jadhav’s arrest.
Pakistan violated the Vienna Convention also by not informing Jadhav of his rights and by denying Indian officials access to him. The entire trial and sentence by a military court, which was based on “confession taken under custody”, without adequate legal representation was farcical, according to Indian authorities. It was said to be in brazen defiance of the rights and protections provided under the Vienna Convention and the international law, including ICCPR (International Covenant on Civil and Political Rights). The jurisprudence on ‘human rights’, including under the ICCPR, recognises ‘due process’ rubric.
Perhaps the most important aspect was the way India countered Pakistan’s claim that the 2008 bilateral agreement overrode the Vienna Convention. According to India’s argument, the Vienna Convention recognises that states may have bilateral arrangements that “amplify or supplement” the principles engrafted in the multilateral convention/treaty. However, it said Article 73(2) of the Law of Treaties did not recognise dilution of the provisions of the multilateral convention by bilateral treaties.
India successfully convinced ICJ that Pakistan’s attempt to claim an exception to the rights under Article 36 of Vienna Convention suggesting that such rights are not to be made available to an individual against whom there is a prima facie case of “espionage” was not tenable.
India also found the use of military courts for the trial of civilians violative of due process standards. “The trial of foreign national civilians by military courts is per se violative of the ICCPR, and also of the minimum standards recognised as ‘principles of international law’,” said an official.
