ICJ tells Pakistan to review Kulbhushan Jadhav death penalty
The International Court of Justice (ICJ) on Wednesday ruled that Pakistan had violated former Indian naval officer Kulbhushan Jadhav’s right to consular access and called for a review of the death sentence handed to him by a military court at an appropriate forum of Islamabad’s choice.
In a ruling seen as a significant victory for India’s efforts to prevent the execution of the 49-year-old, the UN’s principal court ruled that a continued stay of Jadhav’s death sentence was an “indispensable condition” for an effective “review and reconsideration” of his conviction.
Noting the review could be done in various ways, ICJ left the “choice of means” to Pakistan. The court, based in The Hague, Netherlands, said the review must be unconditional and lead to a result. It also called on Pakistan to take all measures for an effective review, including “enacting appropriate legislation”.
Jadhav was arrested by Pakistani security agencies in Balochistan on March 3, 2016, and charged with involvement in spying and subversive activities. In April 2017, Pakistan announced that Jadhav had been given the death sentence by a military court.
Hours after the ICJ verdict, Prime Minister Narendra Modi tweeted: “We welcome today’s verdict in the ICJ. Truth and justice have prevailed. Congratulations to the ICJ for a verdict based on extensive study of facts. I am sure Kulbhushan Jadhav will get justice. Our Government will always work for the safety and welfare of every Indian.”
External affairs ministry spokesperson Raveesh Kumar described it as a “landmark judgment” that validated India’s position and said: “We will continue to work vigorously for Kulbhushan Jadhav’s early release and return to India.”
Kumar said ICJ, by a vote of 15-1, upheld India’s stance that Pakistan was in “egregious violation” of the Vienna Convention on Consular Relations.
“We note the court has directed that Pakistan is under an obligation to inform 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,” he added.
External affairs minister S Jaishankar tweeted: “Spoken to #Kulbhushan’s family. Applaud their courage. Satyameva Jayate.”
It was not clear from Pakistan’s initial reactions if it would abide by the ICJ’s verdict. Pakistan’s Foreign Office announced it will “proceed as per law” and reiterated its allegations that Jadhav was involved in espionage, sabotage and terror acts that it claimed were a “clear case of Indian state terrorism”.
India has rejected the allegations against Jadhav and said he was kidnapped by Pakistani operatives from the Iranian port of Chabahar, where he was running a business. In May 2017, New Delhi petitioned ICJ, which stayed Jadhav’s execution.
However, ICJ ruled on Wednesday that it could not uphold India’s demand to annul the Pakistani military court’s death sentence and direct Islamabad to release and repatriate Jadhav. The 16-judge bench said it was not the conviction and sentencing of Jadhav that violated Article 36 of the Vienna Convention relating to consular access.
ICJ emphasised that the review of Jadhav’s case by Pakistan must be effective as the outcome of his mercy petition to the Pakistan Army chief was not known, and no evidence was submitted to the court on the presidential clemency procedure.
ICJ noted that Pakistan had stated during arguments that its high courts were competent to carry out a review. But it also observed Article 199 of Pakistan’s Constitution had been interpreted by the Supreme Court as limiting the availability of such a review for a person like Jadhav, who is subject to the Pakistan Army Act. “Thus, it is not clear whether judicial review of a decision of a military court is available on the ground that there has been a violation of the rights set forth in Article 36, paragraph 1, of the Vienna Convention,” the verdict said.
The verdict, however, added that Pakistan “contends that its domestic legal system provides for an established and defined process whereby the civil courts can undertake a substantive review of the decisions of military tribunals, in order to ensure procedural fairness has been afforded to the accused, and that its courts are well suited to carrying out a review and reconsideration that gives full weight to the effect of any violation of Article 36 of the Vienna Convention”.
Rahul Gandhi of the Congress welcomed the verdict. “My thoughts tonight are with Kulbhushan Jadhav, alone in a prison cell in Pakistan & with his distraught family for whom this verdict brings a rare moment of relief, joy & renewed hope, that he will one day be free to return to his home in India,” he tweeted.
Lawyer Harish Salve, who appeared for India in the case, said: “I see this as a sense of relief, gratification. I see this as something which we are very happy with. It is now the moment for us to help Jadhav get justice.”
While the 16-judge bench was unanimous in ruling that the UN’s principal court had jurisdiction to hear India’s petition, the seven other conclusions were endorsed by 15 of the judges on the panel led by ICJ president Abdulqawi Ahmed Yusuf, and opposed by Pakistan’s ad hoc judge Tassaduq Hussain Jillani.
These seven conclusions included the rejection of Pakistan’s objections to the admissibility of India’s petition and violation of Jadhav’s rights to consular access under the Vienna Convention by Pakistan as it failed to notify him and the Indian government without delay of his detention. This, the judges ruled, deprived India of the right to communicate with Jadhav, and have access to him in detention and arrange for his legal representation. The bench concluded that Pakistan was under an obligation to inform Jadhav without further delay of his rights and to provide Indian consular officers access to him.
The bench further held the “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 Jadhav.
It also declared a “continued stay of execution constitutes an indispensable condition for the effective review and reconsideration” of Jadhav’s death sentence.
Sanjay Hegde, a senior advocate of India’s Supreme Court, said there was still a lack of clarity on whether the review of Jadhav’s case will be done by a civil or military court.
“The execution has been stayed, the trial remains, but we don’t know if the review suggested by ICJ will be by a military court or a civil court. However, I don’t see any difference between the two because Pakistani civil courts are permeable to military influence as has been seen in the cases of former president Zulfikar Ali Bhutto and former prime minister Nawaz Sharif,” Hegde said.
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