The curious case of Kulbhushan Yadav – Hearing in International Court of Justice. Eden IAS Current Affairs.

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The curious case of Kulbhushan Yadav – Hearing in International Court of Justice. Eden IAS Current Affairs.

In a major victory for India, the International Court of Justice ruled in favour of India and held Pakistan guilty of violating the Vienna Convention because it denied consular access to Kulbhushan Jadhav, an Indian national in its custody.

The ICJ at The Hague delivered its final verdict in the Kulbhushan Jadhav case. The top international court said Pakistan must grant consular access (diplomatic assistance) to Kulbhushan Jhadav and abide by the Vienna Convention. The court said Pakistan should provide a “review and reconsideration of the conviction and sentence”.

Reading out the verdict, President of the ICJ Judge Abdulqawi Ahmed Yusuf ordered an “effective review and reconsideration of the conviction and sentence of Mr. Kulbhushan Sudhir Jadhav“.

What this effectively means is that the death sentence that was awarded to Kulbhushan Jadhav by a military court in Pakistan is put on stay till the time the case and conviction are reviewed after Kulbhushan Jadhav gets diplomatic assistance.

Over the past few years, the Kulbhushan Jadhav case has gained much traction as India and Pakistan remained steadfast on their respective grounds.

The verdict in this high-profile case comes nearly five months after a 15-member bench of ICJ led by Judge Yusuf had reserved its decision on February 21 after hearing oral submissions by India and Pakistan. The proceedings of the case took two years and two months to complete.

Eight key points of ICJ verdict

Here are the eight points of the ICJ verdict which was delivered in favour of India by a ruling of 15:1

  • ‘Court has jurisdiction to entertain India’s application’-“The court finds that it has jurisdiction, on the basis of Article I 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
  • ‘Court rejects Pak’s objections on admissibility of India’s application’– The court rejects the objections by the Islamic Republic of Pakistan to the admissibility of the Application of the Republic of India and finds that the Application of the Republic of India is admissible.
  • ‘Pak has breached obligations incumbent upon it’-The court finds that, by not informing Mr. Kulbhushan Sudhir Jadhav without delay of his rights under Article 36, paragraph 1 (b), of the Vienna Convention on Consular Relations, the Islamic Republic of Pakistan breached the obligations incumbent upon it under that provision.
  • ‘Pak violated Vienna Convention on Consular Relations’- The court found 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;
  • ‘Pak deprived India the right to communicate with Kulbhushan Jadhav’– The court found that the Islamic Republic of Pakistan deprived the Republic of India of the right to communicate with and have access to Mr. Kulbhushan Sudhir Jadhav, to visit him in detention and to arrange for his legal representation, and thereby breached the obligations incumbent upon it under Article 36, paragraph 1 (a) and (c), of the Vienna Convention on Consular Relations.
  • ‘Pakistan is under an obligation to inform Kulbhushan Jadhav without further delay of his rights’-The court found 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
  • ‘Pak should provide effective review and reconsideration of the conviction and sentence of Kulbhushan Jadhav’- The court found 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 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 Convention.
  • ‘Continued stay of execution constitutes an indispensable condition’-The court 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.

WHAT IS THE VIENNA CONVENTION?

The Vienna Convention on Diplomatic Relations of 1961 is an international treaty that defines a framework for diplomatic relations between independent countries. It specifies the privileges of a diplomatic mission that enable diplomats to perform their function without fear of coercion or harassment by the host country. This forms the legal basis for diplomatic immunity. Its articles are considered a cornerstone of modern international relations. As of October 2018, it has been ratified by 192 states.

The treaty is an extensive document, containing 53 articles. The following is a basic overview of its key provisions

  • Article 9. The host nation at any time and for any reason can declare a particular member of the diplomatic staff to be persona non grata. The sending state must recall this person within a reasonable period of time, or otherwise this person may lose their diplomatic immunity.
  • Article 22. The premises of a diplomatic mission, such as an embassy, are inviolable and must not be entered by the host country except by permission of the head of the mission. Furthermore, the host country must protect the mission from intrusion or damage. The host country must never search the premises, nor seize its documents or property. Article 30 extends this provision to the private residence of the diplomats.
  • Article 24 establishes that the archives and documents of a diplomatic mission are inviolable. The receiving country shall not seize or open such documents.
  • Article 27. The host country must permit and protect free communication between the diplomats of the mission and their home country. A diplomatic bag must never be opened even on suspicion of abuse. A diplomatic courier must never be arrested or detained.
  • Article 29. Diplomats must not be liable to any form of arrest or detention. They are immune from civil or criminal prosecution, though the sending country may waive this right under Article 32.
  • Article 31.1c Actions not covered by diplomatic immunity: professional activity outside diplomat’s official functions.
  • Article 34 speaks about tax exemption of diplomatic agents while Article 36 establishes that diplomatic agents are exempted from custom duties.
  • Article 37. The family members of diplomats that are living in the host country enjoy most of the same protections as the diplomats themselves.

Article 36 of the Vienna Convention on Consular Relations, 1963

While the domestic laws of Pakistan and India do not provide any guidance on consular access to persons accused of espionage or terrorism, the Vienna Convention on Consular Relations, 1963, to which both India and Pakistan have acceded, allows states consular access to their nationals, arrested or detained in other states.

Article 36(1) of the Vienna Convention affords the following privileges to the consular officers of states for communicating with their national detained in another state:

  • Consular officers can freely communicate with nationals of the state where the individual has been detained;
  • Upon request of the detainee, the detaining state must immediately inform the consular post of the detainee’s state and
  • Consular officers can visit the detained individual and arrange for legal representation.

Pakistan’s rejection of India’s request for consular access to Jadhav is a direct violation of sub-clause (c) of clause (1) of Article 36. Article 36(1) (c) of the Vienna Convention imposes a mandatory obligation on the detaining state to allow consular officers of the detainee’s state to visit.

INDIA’s STANCE ON THE ARREST AND SUBSEQUENT TRAIL

Kulbhushan Jadhav is a 49-year-old retired officer of the Indian Navy. He was arrested by security forces in Pakistan on March 3, 2016. Pakistan claims Kulbhushan Jadhav was arrested near the Pakistan-Afghanistan border of Chaman in Balochistan over illegal entry into the country. On the other hand, India argues that Pakistan abducted Kulbhushan Jadhav from Iran.

In April 2017, a Pakistani military court (Field General Court Martial (FGCM)) sentenced him to death based on an “extracted confession”. FGCM is a military court consisting Pakistan Army officers. The judges on the FGCM aren’t required to possess law degrees.

India rubbished these charges and condemned the Pakistan military court’s verdict. India maintains that after retiring from Indian Navy, Kulbhushan Jadhav had business interests in Iran from where Pakistan abducted him.

What happened after Pak military court’s verdict?

India demanded consular access to Kulbhushan Jadhav after he was awarded a death sentence by a military court in Pakistan. India argued that Pakistan violated the Vienna Convention and Kulbhushan Jadhav did not have adequate representation during the trial. India also rejected Pakistan’s claim that Kulbhushan Jadhav had confessed to being a spy. India summarily rejected the “extracted confession” based on which he was sentenced to death.

How did the matter reach ICJ?

When Pakistan refused to grant consular access to Kulbhushan Jadhav and faced with the likelihood that he may be executed anytime soon, India decided to move the International Court of Justice at The Hague on May 8, 2017.

In its plea, India accused Pakistan of “egregiously violating” provisions of the Vienna Convention by denying New Delhi consular access to Kulbhushan Jadhav.

On May 18, 2017, a bench of the ICJ restrained Pakistan from executing Kulbhushan Jadhav till the court adjudicated the case.

What have India, Pakistan argued at ICJ?

India has argued its case on two broad grounds: 1) Pakistan breached the Vienna Convention as it repeatedly denied consular access to Kulbhushan Jadhav; (2) the process of resolution of this case.

Harish Salve, who argued for India at the ICJ, questioned the functioning of Pakistan’s notorious military courts and urged the top UN court to annul Jadhav’s death sentence, which he said was based on an “extracted confession”. India argued that Pakistan violated international law by not allowing India to give diplomatic assistance to Kulbhushan Jadhav before he was convicted by a military court.

Pakistan’s counsel Khawar Qureshi meanwhile argued, “India’s claim for relief must be dismissed or declared inadmissible.”

Pakistan has also refuted India’s argument that judges in Pakistan’s military courts do not have sound legal understanding because they are primarily military officers. It argued that Pakistan’s courts are “extremely independent”. Pakistan also claimed that its military had “sufficient evidence” to prove that Kulbhushan Jadhav was a spy.

The Dawn, Pakistan’s leading newspaper, in a report said: “Attorney General of Pakistan Anwar Mansoor Khan had argued that Jadhav was an Indian spy sent to Balochistan to destabilise the country and therefore not entitled to consular access.”

According to the paper, Khan had told ICJ that Jadhav “ran a network to carry out despicable terrorism and suicide bombing, targeted killing, kidnapping for ransom and targeted operations to create unrest and instability in the country”.

These charges have been denied and declared useless by India.

CONCLUSION

The problem with this is that Pakistan retains the discretion to decide how to review Jadhav’s conviction and to secure his Vienna Convention rights. In theory, Pakistan could provide consular access, repeat the trial procedure, reach the same result, and then argue that it had fulfilled its obligations under the judgment.

In that situation, India’s options will be limited. The only legal one would be to go back to the ICJ and argue that the review did not meet the standards mandated by it. One cannot predict how the ICJ will respond in that situation, but the scope of its scrutiny will inevitably be limited.

Mexico tried this strategy in the Avena case and met with limited success. The problem is that, in this case, the jurisdiction of the ICJ is restricted to assessing compliance with consular rights under the Vienna Convention. It cannot undertake a broader inquiry into the fairness of the trial.

In closing, however, it is important to acknowledge one very positive aspect of the judgment – the successful strategic invocation of the jurisdiction of the ICJ by India. The Indian government must be lauded for its decision to involve the ICJ in this case. Pakistan’s efforts to sensationalise its arrest and conviction of Jadhav as an Indian spy and terrorist would undoubtedly have harmed Indian interests. The vindication of India’s case by the ICJ brings into question the veracity of Pakistan’s claims as to Jadhav’s antecedents. Taking the case to the ICJ was a clever and effective way to undermine Pakistan’s narrative.

 

 

 

 

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