What does the ICJ Judgement in the Kulbhushan Jadhav case mean for Pakistan?

It is a no brainer that in a major landmark, latest and laudable judgment that has endorsed India's plea that former Indian naval officer Kulbhushan Jadhav's trial under espionage and terror charges in Pakistan violated clearly and blatantly the international law, the International Court of Justice on July 17, 2019 clearly, categorically and convincingly ruled that Pakistan should 'review and reconsider' his conviction and death sentence. The ICJ which is based at the Hague in the Netherlands has also ruled that Pakistan should give the Indian government consular access to Mr. Jadhav, something Pakistan has miserably failed to do in the three years since his arrest, and to stay the execution of his sentence, pending the review process. Very rightly so!

Needless to say, the ICJ in its historic and praiseworthy judgment has very clearly held that the denial of consular access constituted a 'breach' of Article 36 para 1(b) of the Vienna Convention on Consular Relations which Pakistan is a signatory to, which clearly stipulates that all foreign nationals arrested must be given access to their government or local embassy, and rejected outright Pakistan's counter-claim that the Vienna Convention didn't apply in a case of espionage! If this is not the biggest slap by ICJ directly right on the face of Pakistan, then what else is? Can anyone please tell me? I would be glad to know it! The ICJ also upheld India's contention that the Vienna Convention overrides a 2008 bilateral agreement between India and Pakistan on consular access.

Be it noted, all the 16 Judges of ICJ on the panel unanimously ruled that the ICJ's jurisdiction held over the case. It said that the court 'unanimously, finds that it has jurisdiction, on the basis of Article 1 of the Optional Protocol concerning the Compulsory Settlement of Disputes to the Vienna Convention on Consular Relations of 24 April 1963, to entertain the Application filed by the Republic of India on 8 May 2017'. The judgment which was read out by Judge Abdulqawi Ahmed Yusuf who is the President of the ICJ at the Peace Palace on July 17, 2019 was decided with 15 judges in favour while only Pakistan's ad-hoc Judge – Justice Tassaduq Hussain Jilani was the lone dissenter! Pakistan must be gracious enough to accept this biggest slap on its face and comply with the order passed by the ICJ to save its own reputation in front of the world!

What's more, the ICJ specifically ruled that it 'finds that the Islamic Republic of Pakistan is under an obligation to inform Mr. Kulbhushan Sudhir 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 on Consular Relations'. Pakistan till now was totally opposed to giving any consular access to Kulbhushan Jadhav but now it has no option but to comply! The ICJ said that the court finds that the 'appropriate reparation in this case consists in the obligation of the Islamic Republic of Pakistan to provide by the means of its own choosing, effective review and reconsideration of the conviction and sentence of 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 Convention.'

Not stopping here, it added that a 'continued stay of execution constitutes an indispensable condition for the effective review and reconsideration of the conviction and sentence of Jadhav. The Court also found that, 'by not informing Jadhav without delay of his rights under Article 36, paragraph 1(b) of the Vienna Convention on Consular Relations', Pakistan 'breached the obligations' incumbent upon it under that provision. It also said that by 'not notifying the appropriate consular post of the Republic of India in the Islamic Republic of Pakistan without delay of the detention of Mr Kulbhushan Sudhir Jadhav and thereby depriving the Republic of India of the right to render the assistance provided for by the Vienna Convention to the individual concerned, the Islamic Republic of Pakistan breached the obligations incumbent upon it under Article 36, paragraph 1 (b), of the Vienna Convention on Consular Relations.'

It may be recalled that Kulbhushan Sudhir Jadhav who is a retired Navy officer was arrested allegedly on March 3, 2016 and India was informed of this on March 25, 2016, when the Pakistan Foreign Secretary raised the matter with the Indian High Commissioner in Islamabad. On that day itself, India sought consular access to Jadhav at the earliest. But Pakistan kept denying on one pretext or the other.

As it turned out, Pakistan claimed that its security forces arrested Jadhav from restive Balochistan province on March 3, 2016 after he reportedly entered from Iran. But India has consistently maintained that Jadhav was kidnapped at gun point from Iran where he had business interests after retiring from the Navy. Later he was falsely charged with terror related activities and espionage!

By all accounts, New Delhi then rightly moved the ICJ in May in 2017 against the 'farcicial trial' by the military court of Pakistan against 48-year-old Jadhav. He was sentenced to death on charges of espionage and terrorism in April 2017. India had first approached the ICJ on May 8, 2017, for the 'egregious violation' of the provisions of the Vienna Convention on Consular Relations, 1963 by Pakistan by repeatedly denying it consular access to Jadhav.

To put things in perspective, on May 9, 2017, the ICJ asked the two countries to present their arguments and till such time, asked Pakistan from not doing anything. In other words, the ICJ clearly forbid Pakistan from proceeding further with Kulbhushan Jadhav's case any further! On May 15, the two sides presented their arguments at a public hearing and on May 18, the 10-member Bench of the ICJ restrained Pakistan from executing Jadhav – until a final verdict.

Truth be told, after written submissions by both sides in mid 2018, the ICJ then fixed oral arguments to be made by representatives from both countries from February 18 to 21, 2019. While India argued on February 18 and 20, Pakistan responded on February 19 and 21. India was represented by former Solicitor General and eminent Supreme Court senior lawyer Harish Salve and Ministry of External Affairs's Joint Secretary (Pakistan-Afghanistan-Iran), Deepak Mittal. Pakistan was represented by Anwar Mansoor Khan who is the Attorney General of Pakistan and the legal counsel was Khawar Qureshi.

No doubt, it is quite ostensible that Pakistan could not submit anything concrete to prove before the ICJ which is the United Nations top court that Kulbhushan Jadhav had indulged in some kind of terror activity or spy activity and this alone explains that why ICJ too has asked Pakistan to review and reconsider his conviction and death sentence! Pakistan was thus reduced to a laughing stock in front of the entire world! If this is not a rap on the knuckles of Pakistan then what else can be?

This alone explains that why our Foreign Minister S Jaishankar rightly demanded that Pakistan should respect the International Court of Justice ruling on Kulbhushan Jadhav and release and repatriate the Indian national immediately. He was making a statement on the ICJ landmark ruling slamming Pakistan for violating the Vienna Convention in the Jadhav case. Jaishankar also very rightly minced no words in stating it quite upfront that the ICJ judgment was not only a vindication for India and Jadhav but for all those who believed in the rule of law and the sanctity of international conventions.

Of course, it needs no Albert Einstein to conclude that the Union Foreign Minister's remarks clearly manifest that India will continue to forcefully demand Jadhav's return having rejected allegations of spying levelled against him. While rightly describing the ICJ ruling on Kulbhushan Jadhav as a landmark judgment, the Foreign Minister of India S Jaishankar rightly said that no forced confession, that too without legal representation and due process, would change the fact that Jadhav was innocent of the charges levelled against him. We all know that India has always maintained that Jadhav was kidnapped by Pakistan in Iranina waters at gun point and made to confess after torturing him to acts of terror in a bid to falsely depict Indian involvement in Balochistan.

To be sure, Foreign Minister S Jaishankar rightly said in Rajya Sabha that, 'In 2017, the government made a commitment on the floor of the House to undertake all steps necessary to protect the interest and welfare of Jadhav. The government has made untiring efforts in seeking his release including through legal means in the International Court of Justice. I am sure that the House will join me in appreciating the efforts of all those involved, especially the legal team led by Harish Salve.' It is Harish Salve who has single handedly ensured that ICJ rules in India's favour for which the whole nation shall always remain indebted to him and took a token fee of just Rs 1! It is again this same Harish Salve who commendably ensured that Lt Col Prasad Shrikant Purohit rightly got bail after unlawfully remaining in jail for nearly 9 years without even charge sheet being framed against him as the whole system got after him who is still a serving Army Officer in the Malegaon blast case and is determined to ensure that just like Kulbhushan Jadav, he too gets justice at the earliest! Very rightly so! This is the real reason that why Harish salve commands so much of respect in the hearts of each and every Indian!

It also cannot be lost on us that Gautam Bambawale who as India's envoy to Pakistan when Jadhav was arrested had bombarded the Pakistani government with repeated official requests for consular access, thereby creating the right conditions for India's case at the ICJ has said most unequivocally that, 'ICJ has clearly ruled that Pakistan must review the case. This implies that the earlier military court proceeding did not give Jadhav due process. So a retrial must take place which must be fairer than earlier, with full consular access and a defence attorney for Jadhav.' The ICJ has worked with precedents in the cases of Germany vs the United States (LaGrand) and Mexico vs the United States (Avena), and in both these cases it had ruled that the US was in violation of the Vienna Convention and ordered a 'review and reconsideration' of its process!

Put simply, it is quite ostensible that Pakistan by terming ICJ's verdict as its own victory is only making a mockery of its ownself! Who does not know that Pakistan itself is standing on the verge of being declared a terror state and is already in the grey list of Financial Action Task Force and in the October month could be considered to be placed in the black list along with other rogue states like North Korea and Yemen? It is under world pressure that Pakistan recently itself re-opened the Pakistan's airspace, made concessions on Kartarpur corridor and also re-arrested Hafiz Saeed who is the mastermind of 26/11 attack on Bombay! It goes without saying that the ICJ landmark verdict has admittedly made it enormously difficult for Pakistan to re-impose the death sentence on Jadhav! To put pressure on Pakistan, India must put on hold Kartarpur Corridor which Khalistani terrorists and ISI along with Pakistani Army are determined to abuse to further the Khalistan 2020 agenda propagated in US, UK and Canada and if still Pakistan does not budge then India must nuke all relations with Pakistan!

Truth be told, in its ruling, the ICJ said that the continued stay of Jadhav's execution was an 'indispensable condition' for the review of his conviction at a forum of Pakistan's choice. Union External Affairs Ministry spokesperson Raveesh Kumar rightly said that, 'We expect Pakistan to implement the directive immediately without any further delay. Pakistan must now grant consular access to Jadhav and conduct an effective review of his case. Each and every point was ruled in favour of India and there is no confusion.'

To say the least, former Union Law, Defence and Finance Minister Arun Jaitley rightly summed up by saying that, 'A plain reading of the International Court of Justice (ICJ) judgment in former naval officer Kulbhushan Jadhav's case shows that India has won on almost all counts. Pakistan lost conclusively before the ICJ. Its farcical process through which innocent are held guilty stand exposed. The ICJ had given Pakistan an opportunity to comply with the rule of law and reform its processes. Will Pakistan use this opportunity or will they squander it? Pakistan is now under a global gaze as to what direction it follows. The ICJ judgment in this case is a comprehensive victory for India.'

Going forward, Harish Salve also very rightly said that, '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 to get justice.' Pakistan must always remember that ICJ has declared a 'continued stay of execution constitutes an indispensable condition for the effective review and reconsideration' of Jadhav's death sentence. Indicating its unhappiness with the opaque judicial process in Pakistan regarding Jadhav, the ICJ said that, 'Court considers it imperative to re-emphasise that the review and reconsideration of the conviction and sentence of Jadhav must be effective.'

To conclude, Pakistan in its own larger national interests must be gracious enough to concede that Kulbhushan Jadhav was wrongly arrested, wrongly tortured, wrongly framed and wrongly tried. They should initiate the process of setting him free and handing him over to India. This will only serve to smoothen the ruffled feathers in India who are very agitated over India opening Kartarpur Corridor with Pakistan and also help normalize relations between the two countries which will be in Pakistan's own best interests!' Now let's see what Pakistan decides! The ball is clearly in Pakistan's court!

 

Sanjeev Sirohi 
on 02 August 2019
Published in Others
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