On July 17 the International Court of Justice (ICJ) passed an interesting verdict on India’s plea of no case regarding its spy cum terrorist Indian Navy’s active service Commander Kulbhushan Jadhav. He was working for India’s Research and Analysis Wing (RAW) and was arrested on March 3, 2016 from Balochistan on charges of espionage and sentenced to death by a military court the following year. ICJ’s stimulating middle of the course verdict has been claimed as victory by both the contesting states.
Pakistan has welcomed the ‘fitting’ verdict because it rejected New Delhi’s plea to acquit and release its self-confessed spy. The ICJ has out rightly gone out of the way by setting a new precedence in contemporary history by allowing consular access to a spy. The international court also ordered Pakistan for “effective review and reconsideration of the conviction and sentence.”
Addressing a news conference Foreign Minister Shah Mehmood Qureshi said that India could not achieve what it desired by going to the international court. “The ICJ didn’t annul the military court’s verdict against Jadhav this shows its confidence on Pakistan’s judicial system which is very fair and transparent.” Qureshi added that the country’s Army Act is very clear on capturing a serving Indian Navy officer who was travelling on fake passport. “It is very obvious that the case would be run in a military court the same would’ve happened in India.” Qureshi said, “We thank the Almighty who has made Pakistan victorious at the international forum.” He said by respecting the verdict, Islamabad will proceed further on the matter by remaining within the ambit of laws of the land. “India still has the right of review and appeal, so we don’t want to make any unnecessary comment on the issue,” he said in response to a question. The ICJ was set up in 1946 to rule in disputes between countries. It, however, has no means to enforce its rulings which are final and without appeal.
Pakistan, as a responsible member of the International community upheld its commitment from the very beginning of the case by appearing before the court for the provisional measures hearing despite a very short notice. “Having heard the judgment, Pakistan will now proceed as per law,” Foreign office said in a statement. Indian newspaper The Hindu reported on July 19 “A day after the International Court of Justice at The Hague urged Pakistan to grant consular access to death row prisoner Kulbhushan Jadhav, Islamabad on Friday (July 19) declared that Mr. Jadhav will be granted the right to get in touch with the diplomats and officials from India”.
“Pursuant to the decision of the ICJ, Commander Kulbhushan Jadhav has been informed of his rights under Article 36, Paragraph 1 (b) of the Vienna Convention on Consular Relations. As a responsible state, Pakistan will grant consular access to Kulbhushan Jadhav according to Pakistani laws, for which modalities are being worked out” stated a press release from the Office of the Spokesperson of Pakistan’s Ministry of Foreign Affairs (MOFA).
Jadhav had entered Pakistan without a visa on an authentic Indian passport under the fake alias of Hussain Mubarak Patel. He is responsible for acts of sabotage, espionage and multiple terrorist incidents in which scores of innocent Pakistani citizens were killed resulting into umpteen women being widowed and numerous children becoming orphans. Jadhav had confessed all these acts during his trial in Pakistani court in front of a Judicial Magistrate. This is a clear case of Indian state terrorism.
The UN’s top court has ruled that Pakistan had breached the Vienna Convention on diplomatic relations, which gives countries the right to consular access when their nationals are arrested abroad. Indian Prime Minister Narendra Modi tweeted, ”We welcome today’s verdict today. Truth and justice have prevailed.” The Indian premier claimed that New Delhi would always work for the safety and welfare of every Indian.
During his trial at a Field General Court Martial (FGCM) Kulbhushan had confessed to his involvement in hatching terror plots against Pakistan. He was sentenced to death by the FGCM in April 2017 on charges of espionage. India had approached the ICJ in May 2017 against Pakistan for denying consular access to Commander Jadhav in line with Vienna Convention on Consular Relations 1963.India had also challenged the “farcical trial” by the military court of Pakistan. As immediate relief to India, the ICJ had, after preliminary hearing, restrained Pakistan from executing Commander Jadhav till adjudication of the case with the pronouncement of the verdict, however this restraint is no longer operative.
India had based its case on two broad issues breach of Vienna Convention on consular access and the process of resolution. Pakistan had rejected India’s plea for consular access because New Delhi wanted to get the consular access for its spy. Earlier in five cases requesting consular access, the ICJ had given consular access to the applicant state; but it is the first case in which the ICJ has determined that even a spy be given consular access. Indian is the first country in the 60 years history of ICJ that had shamefully demanded such a concession from the court by invoking the Vienna Convention.
India had also urged the ICJ to cancel Jadhav’s death sentence and order his immediate release, saying the verdict by a Pakistani military court was based on a “farcical case” and it failed to satisfy even the minimum standards of due process. India maintained that Jadhav was kidnapped from Iran where he had business interests after retiring from the Navy. Pakistan on its part insisted that the Indian Navy officer was a spy and not a businessman. Pakistan reported that its security forces had arrested Commander Jadhav from Pakistan’s Balochistan province after he had entered from Iran. On the question of legality of trial, ICJ has repeatedly adjudicated that it is not a “Criminal Court of Appeal” and effective review of a conviction was available before the respective domestic courts; same principle has been upheld in Jadhav’s case.
In the run-up to the verdict renowned legal experts had opined that ICJ would reject India’s plea to release Kulbhushan Jadhav. However, his conviction could be set aside and he may be allowed consular access. The verdict is a victory for Pakistan in the sense that the relief given to India is limited to granting consular access. However, the Indian media had raised expectations at their end to the extent that their public was expecting an acquittal, which was quite unlikely if not impossible. The people of India and its media outlets have, in the meanwhile, unduly tried to spin the verdict in their favour by narrowing their objective to provision of consular access.
Queen’s Counsel Khawar Qureshi argued on behalf of Pakistan while Harish Salve gave oral submission on behalf of India. During the hearing, India could not explain why Jadhav possessed two passports and argued that Commander Jadhav was an innocent businessman who was kidnapped from Iran, brought to Pakistan and tortured to confess that he was a Commander in the Indian Navy and working for RAW. India argued that it was entitled to obtain consular access to Jadhav as soon as his detention was made public by Pakistan. India also argued that the trial and conviction of Jadhav for espionage and terrorism offences by a military court was ‘a farce’. It contended that the denial of consular access to Jadhav requires the ICJ to ‘at least’ order his acquittal, release and return to India.
In its written pleadings, India had accused Pakistan of violating the Vienna Convention by not giving consular access to Jadhav, arguing that the convention did not say that such access would not be available to an individual arrested on espionage charges. Pakistan rejected all of the Indian allegations. It argued that evidence obtained from Jadhav after his arrest and during the criminal process leading to his conviction was amply demonstrative of his activities in fomenting terrorism and engaging in espionage within Pakistan. Islamabad maintained that it would be incompatible with international law for someone sent as a spy/ terrorist by a state to be afforded access to officials of that state. The Court however did not take Pakistan’s point on consular access.
Pakistan had also pointed out to ICJ that in its previous decisions concerning Article 36 of the Vienna Convention (which involved death sentences imposed by the US) the court had made it clear that it was not a court of criminal appeal and the presence of ‘effective review and reconsideration’ by domestic courts was an appropriate remedy even if a breach of the right to consular access had been established. In Pakistan the High Courts and the Supreme Court provide such review as acknowledged by the leading UK-based military law experts.
Pakistan had also referred to an express bilateral Agreement on Consular Access dated May 21, 2008 between India and Pakistan which allows each state to consider a request for consular access ‘on its merits’ in a case involving national security. This argument by Pakistan has not been accepted by the court. ICJ’s verdict on this aspect reinforces the point that once the two states are a party to an International Convention, they could not subsequently enter into a bilateral treaty which is against the spirit of such international instrument. Pakistan had pointed out that Jadhav was provided with an authentic Indian passport under a Muslim name by the Indian authorities which served as a clear and obvious link between his conduct and the government of India. And such conduct was a blatant violation of international law and should bar any claim for relief from a court. Interestingly. India refused to reply on this issue and [unconvincingly] described it as “mischievous propaganda”.
The 15-1verdict came with a detailed dissenting note authored by Justice Tassaduq Hussain Jillani (former Chief Justice of Pakistan) a case specific ad hoc judge of the court an appointee of Pakistan government. He wrote that the court should have found India’s application to be inadmissible because its conduct amounted to abuse of rights. He recalled that the 2008 agreement between India and Pakistan specifically governed questions of consular access and assistance in cases of arrest and detention on national security grounds. Pakistan lawfully withheld consular access and assistance while examining the case of Jadhav on its merits. Even if the Vienna Convention was applicable in the case, Pakistan had committed no breach of its Article 36 because the country had already in place the procedures necessary for ensuring effective review and reconsideration of the conviction and sentence of Jadhav, he added. According to him, the Vienna Convention does not apply to spies. Justice Jillani said in his dissenting note “The Court’s judgment appears to set a dangerous precedent at the time when states are increasingly confronted with transnational terrorist activities and impending threats to national security. Terrorism has become a systemic weapon of war and nations would ignore it at their own peril. Such threats may legitimately justify certain limits to be imposed on the scope of application of Article 36 of the Vienna Convention on Consular Relations, in the bilateral relations between any two states at any given time.” Justice Jillani added “The present case is distinguishable from the Court’s Avena and LaGrand jurisprudence on which the Court has heavily relied. Among various distinguishing factors, the most important one is that the Court was faced here with special circumstances of an individual arrested, detained, tried and convicted for espionage and terrorism offences.”
The ad hoc judge further said the Vienna Convention had been concluded to contribute ‘to the development of friendly relations among nations’ and it could hardly be the case that the drafters of the convention intended for its rights and obligations to apply to spies and nationals of the sending state (India) on secret missions to threaten and undermine the national security of the receiving state. Jillani added that India had provided no rebuttal throughout the proceedings to the circumstances in which it had provided an authentic Indian passport, with false identity, to Jadhav and the particulars of Jadhav’s mission in Pakistan, despite the serious nature of the crimes he had committed the court should have drawn the necessary inferences there from.
Jillani further said:
“Since 31 May 2017, Pakistan has sent six requests to India for necessary cooperation in the investigation of the criminal case [against Jadhav] and about the passport issue, but these were of no avail. Pakistan even offered to extradite Mr. Jadhav to India, if India was prepared to indict him under the Indian laws. The accounts of three respected Indian journalists, Mr. Karan Thapar, Mr. Praveen Swami and Mr. Chandan Nandy, based on interviews conducted with Indian officials, confirm that Mr. Jadhav was a RAW agent.”
Jillani added that “India’s persistent refusal to cooperate in the investigation against Jadhav was contrary to the United Nations Security Council resolution 1373, which inter alia, mandated that all United Nations member states shall “(f) afford one another the greatest measure of assistance in connection with criminal investigations or criminal proceedings relating to the financing or support of terrorist acts, including assistance in obtaining evidence in their possession necessary for the proceedings”. India claims that Mr. Jadhav is a retired naval officer who was kidnapped from Iran where he was doing business. ‘‘However, neither in its memorial nor in its reply has India given his date of retirement from the Indian Navy. It has not placed any document on record either to indicate the kind of business he was carrying in Iran or when and how he was kidnapped. If Mr. Jadhav was in fact kidnapped, as contended by India, India could have lodged a complaint with the Government of Iran, but it failed do so.” And that “the main factor which marred the relations between the two neighbouring countries is the non-implementation of the United Nations Security Resolution No 47 of 1948, which mandated India and Pakistan to hold plebiscite in occupied Kashmir to decide its future”. [Note of dissent related text adapted from the article “India’s conduct amounted to rights abuse Justice Jillani” Published in Dawn, July 18th, 2019 and Editorial by Express Tribune captioned “The ICJ verdict”, on July 21, 2019]
In Pakistan, the judgment is being celebrated because the ICJ while accepting Pakistan’s stance, denied the Indian plea to annul the conviction and sentence of Jadhav, and his retrial in a civilian court. The judgement had a two-fold effect Expression of trust in the power of judicial review of the High Courts under Article 199 of the Constitution in Pakistan and Provision of an opportunity to Pakistan and India to mend fences under the rule of law.
All said and done, despite Modi’s comic claim to victory, Jadhav continues to be at the disposal of Pakistan’s judicial process. While India may have gotten just a petty technical relief, ICJ’s verdict is a major gain for Pakistan. Now it will be interesting to see how things unfold further. Hopefully, both sides would proceed in the letter and spirit of the ICJ verdict and would not get bogged down in tangential interpretations of the judgement. Moreover, the opinion of ad hoc judge on Kashmir enables the two countries to open a new chapter in their bilateral relations.
