KULBHUSHAN JADHAV: JUSTICE DELIVERED OR JUSTICE DENIED?

Authors:

Riya Mathur, Durham University England

Sameera Naiyar, Jamia Millia Islamia University

Ishita Mishra, Presidency University, Bengaluru

Jyotsana Singh, CNLU Patna

Editor: Masoom Israney, Middlesex University Dubai



Introduction

The Court began dealing with this case by setting out the factual background of the case. It recalled that since 3rd March 2016, an individual named Kulbhushan Sudhir Jadhav had been in the custody of Pakistani authorities. The circumstances of his apprehension remained in dispute between the Parties. According to India, Mr. Jadhav was kidnapped from Iran and subsequently transferred to Pakistan and detained for interrogation. Pakistan contends that Mr. Jadhav, whom it accuses of carrying out acts of espionage and terrorism on behalf of India, was arrested in Baluchistan near the border with Iran after illegally entering Pakistani territory.[1] Pakistan explains that, at the moment of his arrest, Mr. Jadhav was in possession of an Indian passport bearing the name "Hussein Mubarak Patel." However, India denied these allegations.[2]


Background

Kulbhushan Jadhav's case is a prime example of the impact that the International Court of Justice (ICJ) can have on inter-country disputes. Kulbhushan Sudhir Jadhav (additionally spelled Kulbhushan Yadav, assumed name Hussain Mubarak Patel) (born 16th April 1970) is an Indian national who was captured in the Pakistani area of Baluchistan on charges of psychological oppression and spying for India’s knowledge office, the Research and Analysis Wing. On 10th April 2017, Indian secret service said he had been “hijacked a year ago from Iran, and his resulting proximity in Pakistan has never been clarified thoroughly."

The Pakistani government claimed that he was an officer in the Indian Navy, who was associated with incendiary exercises inside Pakistan and was captured on 3rd March 2016 during a counter-knowledge activity in Baluchistan. The Indian government perceived Mr. Jadhav as a former maritime official; however, they denied any current connections with him and kept up that he took untimely retirement and had been kidnapped from Iran.


Kulbhushan Jadhav Case

India has contended its case on two extensive grounds:

1) Pakistan violated the Vienna Convention as they continually denied consular access to Kulbhushan Jadhav;

(2) The procedure of the goal of this case:

Harish Salve, who contended for India at the ICJ, scrutinized the working of Pakistan’s infamous military courts and encouraged the top UN court to repeal Jadhav’s capital punishment, which he said depended on a "discharged admission." India contended that Pakistan disregarded worldwide law by not permitting India to provide strategic help to Kulbhushan Jadhav before he was sentenced by a military court.

On 10th April 2017, Jadhav was sentenced to death by a Field General Court Martial in Pakistan. On 18th May 2017, the International Court of Justice prevailed the execution, pending the last judgment looking into it. Later on 17th July 2019, the ICJ dismissed India's appeal for Jadhav's delivery and requested Pakistan to suspend the execution. It decided that Pakistan should audit the whole procedure of the preliminary conviction of Kulbhushan Jadhav and give India consular access. Pakistan then conceded consular access to India once. In any way, resulting demands were blocked.

Later, there was a confession video leaked by Pakistan where Kulbhshan confessed to being a RAW agent, which was denied by India who instead claimed that the video was fake. They also claimed that the video had been shot with different cameras from different angles without any actual interrogation and looked like a stitched up video, which was further denied by the ICJ.

Jadhav was granted capital punishment after a preliminary mystery trial. There is, however, a chance that the preliminary trial was a hoax. In the event that India gets consular access to Mr. Jadhav, it could possibly destroy the Pakistani case by educating him on the different aspects regarding the case. Likewise, consular access may lead to Mr. Jadhav’s original perspective being ultimately discovered, since Pakistan had taken a video admission from Jadhav unfairly under power. They could only manage to so by denying consular access to India.

Consular access would have come during the course of sentencing Mr. Jadhav after the preliminary mystery trial. Regardless of whether Pakistan gave India consular access to Jadhav at this stage, India could help Mr. Jadhav and his family with their uphill legal battle. India would likewise gain insight into Mr. Jadhav’s actual order of circumstances, prompting his capture. This data could assist India in detecting Pakistan's alleged unjust.


Present Scenario

Pakistan later offered him consular access for the second time. "Kulbhushan Jadhav has been sentenced to execution through a farcical trial. He remains under custody of Pakistan’s military. He had clearly been coerced to refuse to file a review in his case”, the foreign ministry said.

But a sigh of relief for Mr. Jadhav is the August 2020 (two-judge bench) Islamabad High Court Judgement. According to this, India has been allowed to appoint a lawyer to defend him, after he was sentenced to death. And for the execution of this judgement, Islamabad High Court has even appointed three senior advocates as amicus curie. But according to India, there has been no communication from Pakistan yet.

The International Court of Justice has accepted that Pakistan has, in various instances, violated the Vienna Convention on Consular Relations. But no conclusion has been drawn to date.


Was the issue resolved or not?

Although the ICJ ruled in favour of India, the issue has not been solved yet. The ICJ refused the plea to set him free. It held that the conviction and sentence of Mr. Jadhav are not a violation of Article 36 of the Vienna Convention. The Court also said that annulment of conviction or sentence does not provide the necessary and sole remedy" in violations of Article 36 of the Vienna Convention.


What were Pakistan's conditions for granting consular access?

After the ICJ’s verdict, Pakistan had assured that it would comply with it. But Pakistan wanted one of their officers to be present in the meeting and also wanted CCTV cameras installed. India responded by saying that Pakistan must provide consular access to Jadhav in an environment "free from the fear of intimidation and reprisal." [3]


What was the Indian response?

India had demanded "immediate, effective, and unhindered" consular access to Jadhav from Pakistan.[4] India argued that Article 36 Paragraph 1(a) of the Vienna Convention says that “consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom…to communication with and access to consular officers of the sending State.”


What happened?

Pakistan, on 2nd September 2019, granted the first consular access to the Indian death-row convict, Kulbhushan Jadhav. An Indian diplomat met Kulbhushan Jadhav at a sub-jail for an hour. Despite India's objections, the Pakistani officials were also present in the room where the meeting between Kulbhushan Jadhav and the Indian envoy took place. The entire proceeding was also recorded. Pakistan said that the session was recorded to "ensure transparency[5] India said that Kulbhushan Jadhav appeared to be under "extreme pressure" to parrot a false Pakistani narrative in his case.


Why India wants independent consular access for Jadhav?

Jadhav was granted a capital punishment after a secret trial; therefore, any information from Jadhav can prove that the trial was a sham. Consular access to Jadhav can essentially destroy Pakistan's case. India can also advise Jadhav on the various aspects concerning the case. India can even get Jadhav's genuine version of events leading to his arrest.


What are the International norms regarding this case?

The Vienna Convention

The Vienna Convention on Diplomatic Relations (1961) is a treaty that defines the framework for the conduct of diplomatic relations between countries.

Important articles under the Vienna Convention

Article 27: The host country must permit and protect free communication between the diplomats of the mission and their home country.

Article 36: Foreign nationals who are arrested or detained be given notice "without delay" of their right to have their embassy or consulate notified of that arrest.


What crucial part did the judgement leave out?

Although India welcomed the ICJ verdict as a sign of victory, a massive shortcoming of the judgement relates to the inability of the Court to ensure implementation by the Pakistani authorities. This is because no mechanism exists for the Court to enforce its decisions, although its judgements in contentious cases are final and without appeal.

Even the LaGrand case (Germany v. the United States) and the Avena case (Mexico v. the United States), from which the ICJ drew precedence, saw poor implementation by the United States, who was in breach of its obligations under Article 36 Vienna Convention on Consular Relations, and did not follow the verdict asking for “effective review and reconsideration” to sentences and convictions of foreign nationals.[6]

In order to ensure the directive given by the ICJ is followed, the case must be reviewed in a civilian court, which will ensure a fair trial instead of a military court where there is a high chance of the death sentence being upheld. Apart from this, there is little control that India can exercise over the judicial procedure Pakistan will choose to adopt.


Next steps for India

In a situation where India feels that Pakistan has not served the directive issued by the ICJ, it can follow two courses of action-

1. It can approach the ICJ and argue that the review did not meet the standards mandated by it. It is impossible to predict the Court’s response in that situation, but the scope of its scrutiny will inevitably be limited. 2. The United Nations Security Council can be approached for this purpose. This is due to the fact that it has the power to take binding measures to give effect to an ICJ judgment.

However, this does not come without its share of loopholes.

1. This requires the concurrence of the Security Council’s Permanent Members, one of which includes China, Pakistan’s long-time ally.

2. In such a situation, it is very likely that the decision is not implemented as dissent expressed by even one of the Members can veto the whole decision.

3. The Security Council adopts a binding measure such as this only in cases where it feels that international peace and security are compromised. The Security Council has never done that so far.


Was the judgement right or wrong?

The verdict given by the ICJ was viewed by both sides as favourable. Although India’s ultimate plea was the release of Jadhav, the ICJ rightfully dismissed this on the grounds that conviction and sentence of Mr. Jadhav are not a violation of Article 36 of the Vienna Convention. The Court further said that in a case concerning violations of Article 36 of the Vienna Convention, the appropriate remedy did not lie in the annulment of conviction or sentence. Pakistan’s decision to hold a trial in a civilian court can ease the previously tumultuous relationship between the two countries and prevent disruption of bilateral and diplomatic relations.


Conclusion

On 24th March 2016, Pakistani security agencies recognized him as an 'On-Duty Raw Agent' from Balochistan. Jadhav confessed, in his statement, that he’s presently a serving officer within the Indian Navy, working for the covert agency to destabilize West Pakistan, a claim the Republic of India has repeatedly denied. The operative had contacts with prohibited organizations and performed on plans to interrupt the metropolis and Balochistan off from West Pakistan and sabotage the billion dollar China-Pakistan Economic passageway (CPEC) project.

On every quarter-day, the Indian Ministry of External Affairs have claimed that the aforementioned Indian man in remission from Balochistan has no reference to the government. However, they have admitted that Kulbhushan Jadhav might be a former officer of the Indian Navy. On 10th April 2017, Chief of Army Staff General Qamar Javed Bajwa confirmed his death sentence given by Field General Court Martial (FGCM). The alleged spy was tried through (FGCM) below the West Pakistan Army Act (PAA) and received a death sentence.

He confessed before the jury and the Court that he was tasked by RAW to set up, coordinate, and organize spying or sabotage activities to destabilize and wage war against Pakistan by blocking the efforts of enforcement agencies for restoring peace in Balochistan and metropolis. India had approached the International Court of Justice once Mr. Jadhav, was sentenced to death by a national court on charges of spying. A 10-member bench of the International Court of Justice in 2017 had restrained Pakistan from conducting the death penalty for Jadhav until the complete assessment of the case. In its written plea, India had highlighted Pakistan's violation of the Vienna Convention, since they had failed to give consular access to Jadhav. However, the convention had failed to specify if such access would be available to a private in remission on spying charges. In response, through its counter-memorial in January 2017, Pakistan told the ICJ that Vienna Convention on diplomat Relations 1963 applied solely to legitimate guests and did not cover spy or secret operations.

Kulbushan Jadhav had been sentenced by judicature. Pakistan denied the Indian embassy's request for consular access; however, ICJ rejected Pakistan's appeal to waive the consular access. India made the demand for privacy for the meeting ab initio. Despite the request, they met him under government-controlled conditions, and he was found to be under duress throughout the entire session. Nonetheless, India is unable to demand the right to privacy currently. This case will most probably come back to civilian courts; though, there is no plan as to when. In the meantime, Pakistan lowered the diplomatic standing further, thus creating may obstacles. Pakistan was required to take the issue to ICJ, and since they would be reprimanded for not providing consular access, they eventually decided that giving Mr. Jadhav consular access was the best option. Therefore, it'll be time-intensive; however, Mr. Jadhav should be physically and mentally able to face the courts when his alleged Pakistani parroting version is expressed. But another version of the issue states that India had caught several Pakistani spies and that Pakistan has conducted this capture of Jadhav to plot their return. Therefore, these people claim that if India agrees to exchange one among several spies, Pakistan should settle for it and thus resolve the issue. This give-and-take, however, could be cumbersome and time-intensive given the India-Pakistan international relations.

[1] ‘ICJ judgment in Kulbhushan Sudhir Jadhav case’ (Scribd, July 17, 2019) <https://www.scribd.com/document/418177465/ICJ-judgment-in-Kulbhushan-Sudhir-Jadhav-case> accessed 20 august 2020 [2] INTERNATIONAL COURT OF JUSTICE (Jadhav case (India v. Pakistan) 17 July 2019)https://www.icj-cij.org/files/case-related/168/168-20190717-JUD-01-00-EN.pdf [3] India Seeks Environment Free from Intimidation as Pakistan Lays Down 3 Conditions for Consular Access (News18 India August 2, 2019)< https://www.news18.com/news/india/india-seeks-environment-free-from-intimidation-as-pak-lays-down-3-conditions-for-consular-access-2255633.html> accessed 20 august 2020 [4] Mathrubhumi September 2, 2019) <https://english.mathrubhumi.com/news/world/india-gets-consular-access-to-kulbhushan-jadhav-for-first-time-1.4089127> accessed 21 august 2020 [5]."Consular access to Kulbhushan Jadhav issues concerns (Live Law, 24 August 2019) <https://www.livelaw.in/top-stories/consular-access-to-kulbhushan-jadhav-issues-concerns-146920?infinitescroll=1> accessed 20 august 2020 [6] 'Kulbhushan Jadhav Verdict: Key Findings By International Court Of Justice & What’S Next For India' (TheQuint, 2020) <https://www.thequint.com/news/india/kulbhushan-jadhav-icj-judgment-pakistan-violated-international-law-highlights-takeaways-what-next-for-india> accessed 21 August 2020.

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