Kulbhushan Jadhav gained a temporary reprieve on Thursday as the International Court of Justice ordered Pakistan not to execute the former Indian Navy officer convicted of alleged espionage and terrorism, rejecting Islamabad’s argument that the UN’s top legal body did not have jurisdiction in the case.
Pakistan sought to play down the significance of the order, saying it amounted to maintaining “status quo” in Jadhav’s case and that it was determined to take the matter to its “logical end”. It added Jadhav “would be provided every opportunity and remedy” to defend his case and had “ample time to petition for clemency”.
Three days after India and Pakistan presented their arguments, Ronny Abraham, president of the United Nations’ highest court in The Hague, read out the order: “Pakistan shall take all measures at its disposal to ensure that Mr Jadhav is not executed pending the final decision in these proceedings and shall inform the court of all the measures taken in implementation of the present order.”
External affairs ministry spokesperson Gopal Baglay said the order was “unanimous, clear and unambiguous” and would will help remedy the violation of Jadhav’s rights. He noted the ICJ’s order was internationally binding. However, the ICJ has no means to enforce its rulings and they have sometimes been ignored.
The ICJ order has come as a great relief to the familly of Kulbhushan Jadhav and people of India.— Sushma Swaraj (@SushmaSwaraj) May 18, 2017
In “provisional measures” adopted unanimously, the 12-judge tribunal said it would remain “seized of the matters” in its order until it gives a final judgment.
At the hearing on Monday, India described Jadhav’s trial as a “serious miscarriage of justice” because Indian diplomats were not granted consular access to him and he wasn’t allowed to choose his defence lawyer. India argued these restrictions amounted to a breach of the 1963 Vienna Convention on Consular Relations.
Pakistan claimed the ICJ did not have the jurisdiction to take up Jadhav’s case as it was a “national security” issue, and that the court did not need to issue an order to stay the execution because it wasn’t imminent.
However, the ICJ concluded on Thursday it had “prima facie jurisdiction” as Pakistan’s “alleged failure” to provide consular notifications about Jadhav’s arrest and to allow communication and provide access to him fell within the scope of the Vienna Convention.
India’s contention about the violation of Jadhav’s rights to consular access “are plausible”, the ICJ added, without making it clear whether Pakistan must now allow Indian diplomats to meet him.
The ICJ also agreed with India’s arguments about the urgency of Jadhav’s case, saying “the mere fact that Mr Jadhav is under a death sentence and might therefore be executed is sufficient to demonstrate the existence of a risk of irreparable prejudice to the rights claimed by India”.
The ICJ noted that Pakistan had indicated that any execution “would probably not take place before the month of August 2017”.
“This means that there is a risk that an execution could take place at any moment thereafter, before the court has given its final decision in the case. The court also notes that Pakistan has given no assurance that Mr Jadhav will not be executed before the court has rendered its final decision,” it said.
Former attorney general Harish Salve, India’s lead lawyer at the ICJ, was praised by Prime Minister Narendra Modi and Sushma Swaraj for his strong defence of Jadhav. Modi telephoned Swaraj to thank her and appreciate the efforts of Salve, officials said.
Salve, who took a token fee of Re 1 to appear in the ICJ, told a TV news channel: “I felt a positive energy when I was arguing the case. I felt judges were connecting. I felt gratified. I did not feel that connection when the other side was arguing.”
He added, “It was a complicated subject. We worked hard and prima facie got acceptance on all our points. We are now a lot more emboldened and a lot more invigorated.”
Pakistan says Jadhav, 46, was arrested in March last year in the restive Balochistan province. In April, a military court sentenced him to death for alleged involvement in spying and subversive activities. India has contended he was kidnapped from the Iranian port of Chabahar and his secret trial was a “farce”.