Pakistan’s National Assembly passed an ordinance in May, in light of the ICJ’s ruling in the Kulbhushan Jadhav death-row case. The ordinance amends the existing court-martial rules of the Pakistan Army and allows Jadhav the right to appeal in a civilian court.
Jadhav And His Court-Martial
Kulbhushan Jadhav is a Commander of the Indian Navy. The Pakistani Army arrested him in March 2016 in Balochistan on charges of espionage and terrorism. Pakistan had claimed that Jadhav worked on instructions of the Indian Research and Analysis Wing (RAW). He came to Balochistan with the motive of destabilizing the province, an area of an ongoing separatist movement. In contrast, India had claimed that Jadhav is a “premature retire[d]” Navy Officer. Pakistani authorities “kidnapped” him from the port city of Chabahar, Iran.
On 11th April 2017, the Field General Court Martial (FGCM) charged Jadhav with espionage and terrorism and awarded him a death sentence. In response, India brought proceedings against Pakistan in the International Court of Justice (ICJ) for violating the Vienna Convention on Consular Relations of 1963 (VCCR 1963).
Arguments Made In The ICJ Hearings
Harish Salve, representing India, invoked the jurisdiction of the ICJ under Art 36(1) of the Statute of the ICJ in conjunction with Art I of the Optional Protocol to the VCCR 1963 concerning Compulsory Settlement of Disputes. Pakistan did not object to this jurisdictional claim. Pakistan instead asked the ICJ to reject the admissibility of the claim on three grounds. It argued that India abused the process of law and abused its rights. Furthermore, approached the courts with unclean hands. Hence, its application must not be admitted.
The ICJ rejected all these arguments made by Khawar Qureshi, representing Pakistan. The ICJ held that State parties were not required to exhaust all resolution mechanisms available under Art II and Art III before initiating the Optional Protocol. Moreover, Pakistan’s allegations of India acting contrary to Security Council Resolution 1373 of 2001, amongst other claims, concerning the merits of the case and not the admissibility claim per se. It also held that the Clean Hands doctrine on its own could not make a claim inadmissible.
Moreover, according to Art 36(1)(b) of the VCCR 1963, the detaining State must inform the detainee of his rights under the provision. It also imposed an obligation to inform the consular post of the sending State about such detention. Pakistan maintained that he was not entitled to the benefits of consular access as a result of his admission to allegations of espionage.
The ICJ held that Pakistan violated its international obligation under Art 36 of the VCCR 1963. Not only did Pakistan fail to inform Jadhav of his rights, but it also failed to inform India, without delay about his arrest and detention. Despite India’s best efforts, Pakistan maintained to deny consular access to Jadhav. In conclusion, the Court held that Pakistan was under an obligation to provide consular access to Jadhav immediately. Furthermore, the Court urged Pakistan, “by means of its own choosing”, an effective review and reconsideration of Jadhav’s sentence.
In regards to India’s submission, the ICJ held that the remedies sought by India about the annulment of the decision of the FGCM, and securing Jadhav’s release and ordering his return to India were not well-founded. Effectively, the Court dealt only with violation of Pakistan’s international obligations but did not delve into the correctness of the decision of the FGCM on merits.
Reaction To ICJ’s Ruling
In response to the ICJ’s ruling, on 20th May, Pakistan passed an ordinance in its National Assembly called the “International Court of Justice Review and Reconsideration Ordinance 2020”. Under this ordinance, Jadhav was afforded the right to petition for a review of the military Court’s decision in the Islamabad High Court (IHC) within 60 days of its promulgation. On 8th July, the Additional Attorney General of Pakistan, however, informed the media that Jadhav has refused to petition in the IHC. Meanwhile, the Office of Foreign Affairs of Pakistan informed that they had invited the Indian authorities to petition on Jadhav’s behalf.
The difficulty with India initiating petition was that Pakistan’s laws require a lawyer to hold a license to advocate in the respective Court. As a result, an Indian lawyer may not advocate for Jadhav but may merely assist Jadhav’s counsel. Consequently, on 19th July, the right to file a review petition expired. On 24th July, Pakistan’s Law Minister, Farogh Naseem has informed the National Assembly that Jadhav would not be offered any concessions. At the moment, Jadhav may only request for a mercy petition to the President of Pakistan as he awaits his execution.
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