Kulbhushan Jadhav case: Big win for India at ICJ

New Delhi: In a major victory for India in the high-profile Kulbhushan Jadhav case, the International Court of Justice (ICJ) at The Hague in the Netherlands on Wednesday held Pakistan guilty of a violation of the Vienna Convention on Consular Relations for its failure to give India consular access to the imprisoned former Indian naval officer, while directing Pakistan to provide “effective review and reconsideration of the conviction and sentence” (of death penalty) awarded earlier by a Pakistani military court to Jadhav. The ICJ also held that the “continued stay of execution constitutes an indispensable condition for the effective review and reconsideration of the conviction and sentence” of Jadhav.

Welcoming the judgment and “congratulating” the ICJ, Prime Minister Narendra Modi said “truth and justice have prevailed”. Pointing out that the ICJ has asked Islamabad to provide Indian consular officers access to Jadhav in accordance with the Vienna Convention, New Delhi said it expected “Pakistan to implement the directive immediately”. In its reaction, a defiant Islamabad merely said it would “proceed as per the law” even as it accused Jadhav of terror acts.

However, the ICJ did not grant India’s plea “to annul the decision of the (Pakistani) military court” and “to direct Pakistan to ... release Mr Jadhav and to facilitate his safe passage to India” on the grounds that “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”, and that it “is not to be presumed... that partial or total annulment of conviction or sentence provides the necessary and sole remedy” in cases of violations of Article 36 of the Vienna Convention.

A 16-member bench led by the court’s president, Judge Abdulqawi Ahmed Yusuf from Somalia, made almost all the rulings by a 15-1 vote margin, with only Pakistani ad hoc judge Tassaduq Hussain Jillani dissenting. On the other hand, the vice-president of the ICJ, Judge Xue Hanqin of China, also backed the majority judgment, signalling a huge setback for Islamabad despite the Sino-Pakistan all-weather friendship. India’s Justice Dalveer Bhandari was also part of the majority judgment. The ICJ is the “principal judicial organ of the United Nations” established in 1945, that “has a role to settle, in accordance with international law, legal disputes submitted to it by States”.

It may be recalled that a Pakistani military court had on April 10, 2017 sentenced former Indian naval officer Kulbhushan Jadhav to death on charges of “espionage and sabotage”. Islamabad had claimed that Mr Jadhav was “apprehended by Pakistan law enforcement agencies on March 3, 2016 after he illegally crossed over into Pakistan”, and that he had been engaging in “espionage, terrorist and sabotage activities aimed at destabilising and waging war against Pakistan”. But New Delhi has consistently rubbished these claims as false and baseless. India had argued that Mr Jadhav was “kidnapped from Iran, where he was carrying on business after retiring from the Indian Navy, and was then shown to have been arrested in Balochistan” on March 3, 2016 ...”. On May 18, 2017, in a major victory for India, the ICJ had barred Pakistan from executing Mr Jadhav till the court pronounced its final decision in the case.

The external affairs ministry said after the ruling: “We welcome the judgment delivered just now by the International Court of Justice in The Hague in favour of India in the case relating to Shri Kulbhushan Jadhav. The court, by a vote of 15-1, has upheld India’s claim that Pakistan is in egregious violation of the Vienna Convention on Consular Relations 1963 on several counts. We also appreciate the direction by the ICJ that Pakistan should review and reconsider the conviction and sentence given to Shri Jadhav by the Pakistani military court.”

The MEA added: “We note that the court has directed that Pakistan is under an obligation to inform Shri Jadhav without further delay of his rights and to provide Indian consular officers access to him in accordance with the Vienna Convention. We expect Pakistan to implement the directive immediately. This landmark judgment validates India’s position on this matter fully. We will continue to work vigorously for Shri Kulbhushan Jadhav’s early release and return to India.”

Senior BJP leader Sushma Swaraj, who was the external affairs minister in 2017 when India petitioned the ICJ, also welcomed the verdict and praised eminent lawyer Harish Salve “for presenting India’s case before the ICJ very effectively and successfully”.

But in its own statement from Islamabad, Pakistan skipped its indictment by the ICJ, instead saying that the ICJ “has decided not to acquit/release” Jadhav. “Having heard the judgment, Pakistan will now proceed as per law,” the Pakistan foreign office said.

In its 42-page order, the ICJ held that “appropriate reparation in this case consists in the obligation” of Pakistan to provide, “by the means of its own choosing, effective review and reconsideration of the conviction and sentence of Mr Kulbhushan Sudhir Jadhav, 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 (Vienna) Convention” .... The ICJ also “declared that 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.”

Criticising Islamabad for violation of the Vienna Convention, the ICJ found that “by not notifying the appropriate consular post of ... India in ... Pakistan without delay of the detention of Mr Jadhav and thereby depriving ... India of the right to render the assistance provided for by the Vienna Convention to the individual concerned, ... Pakistan breached the obligations incumbent upon it under Article 36, paragraph 1(b), of the Vienna Convention on Consular Relations”. The ICJ also ruled that Pakistan deprived India “of the right to communicate with and have access to Mr Jadhav, to visit him in detention and to arrange for his legal representation, and thereby breached the obligations incumbent upon it under Article 36 ... of the Vienna Convention on Consular Relations”.

The court also ruled that “by not informing Mr Jadhav without delay of his rights under Article 36 ... of the Vienna Convention on Consular Relations, ... Pakistan breached the obligations incumbent upon it under that provision”. The court ruled that Pakistan is “under an obligation to inform Mr 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”. It also “rejected” the objections by Pakistan to the admissibility of the application of India and ruled that the application of India on the matter before the ICJ was admissible.