This is the first time India has initiated a case at the ICJ since 1971 and has chosen to do so because of the possibility that Pakistan might quickly carry put the death sentence imposed on the former Indian naval officer.
New Delhi: The Kulbhushan Sudhir Jadhav espionage case took a dramatic turn on Tuesday with the International Court of Justice accepting an Indian request – made on May 8 – for “immediate suspension of the death sentence” imposed on the former Indian naval officer by a Pakistani military court for espionage.
Though details are still awaited, Indian officials said late on Tuesday night that owing to the urgency of the matter, New Delhi had requested the ICJ in The Hague to act without the customary oral hearing, and that the court – which is the judicial arm of the United Nations – had agreed to request a stay from Pakistan on Jadhav’s execution until further notice.
“In my capacity as president of the court, and exercising powers conferred upon me under Article 74, paragraph 4, of the rules of the court, I call upon Your Excellency’s Government, pending the court’s decision on [India’s] request for the indication of provisional measures, to act in such a way as will enable any order the court may make on this request to have its appropriate effects,” Judge Ronny Abraham of France, the ICJ’s president wrote to the Pakistani government on May 9.
Jadhav was sentenced to death by a Field General Court Martial of the Pakistan army in a decision that was made public by the Pakistani military spokesman on April 10, 2017.
The Indian challenge is essentially based on what it says are Pakistan’s gross violations of the Vienna Convention on Consular Relations, the 1963 international treaty which governs the right of a country’s diplomatic representatives to visit their nationals held prisoner by the host country.
Ever since Pakistan announced Jadhav’s arrest at the end of March 2016, it has denied repeated Indian requests for consular access to the former naval officer. In its written submission, India accused Pakistan of kidnapping Jadhav from Iran, where he was working as a businessman, and then showing his arrest from Balochistan.
‘Egregious violations of Vienna Convention’
According to a press note issued by ICJ, India on Monday instituted proceedings against Pakistan for “egregious violations of the Vienna Convention on Consular Relations” in the Jadhav matter.
“The Applicant contends that it was not informed of Mr. Jadhav’s detention until long after his arrest and that Pakistan failed to inform the accused of his rights. It further alleges that, in violation of the Vienna Convention, the authorities of Pakistan are denying India its right of consular access to Mr. Jadhav, despite its repeated requests,” said the ICJ press release referring to India’s petition.
India also told the Court that it learnt about the death sentence of Jadhav from a press release. On 10 April, in fact, the ISPR director general had announced the death sentence through a tweet.
Pending the ICJ’s final judgment, India has asked for provisional measures, asserting that Jadhav “will be subjected to execution unless the Court indicates provisional measures directing the Government of Pakistan to take all measures necessary to ensure that he is not executed until the Court’s decision”. Jadhav’s execution would “cause irreparable prejudice to the rights claimed by India”. India also pointed out that “linking assistance to the investigation process to the grant[ing] of consular access” – as Pakistan had done by offering to consider access if India helped it in its investigation into the alleged espionage activities of Jadhav – was by itself a serious violation of the Vienna Convention”.
India said that the provisional measures should be urgently given as the appeal filed by Jadhav’s mother in Pakistan against the death sentence on her son “may soon be disposed of”.
The provisional measures that India has requested are:
- that Pakistan take all measures necessary to ensure that Kulbhushan Sudhir Jadhav is not executed
- that the Government of Pakistan report to the Court the action it has taken in pursuance of above measure.
- that Pakistan ensure that no action is taken that might prejudice the rights of India or Kulbhushan with respect of any decision the Court may render on the merits of the case.
India requested an order on the provisional measures immediately without “waiting for an oral hearing”.
However, India also asked the president of the court to exercise his power under the rules of the court to give an urgent direction so that the provisional order will have the required impact.
Article 74, section 4 of the rules of the court states: “Pending the meeting of the court, the president may call upon the parties to act in such a way as will enable any order the court may make on the request for provisional measures to have its appropriate effects”. In his letter to the Pakistani government, Judge Abraham said he was acting under his Article 74 (4) powers.
Interpreting Judge Abraham’s use of his authority as a stay on Jadhav’s execution, external affairs minister Sushma Swaraj informed Jadhav’s mother about the government’s move. She also said the senior lawyer Harish Salve would represent India when the ICJ takes up the matter for oral arguments.
Apart from its immediate prayer, India has sought four final “reliefs” from the ICJ. These are:
- an immediate suspension of the death sentence
- restitution in interregnum by declaring that the sentence of the military court arrived at, in brazen defiance of the Vienna Convention rights … and in defiance of elementary human rights of an accused which are also to be given effect as mandated under Article 14 of the 1966 International Covenant on Civil and Political Rights, is violative of international law and the provisions of the Vienna Convention.
- restraining Pakistan from giving effect to the sentence awarded by the military court, and directing it to take steps to annul the decision of the military court as may be available to it under the law in Pakistan
- if Pakistan is unable to annul the decision, then this court to declare the decision illegal being violative of international law and treaty rights and restrain Pakistan from acting in violation of the Vienna Convention and international law by giving effect to the sentence or the conviction in any manner, and directing it to release the convicted Indian National forthwith.”
India had been specifically making public the number of times that it has sought consular access to Pakistan. On April 25, Indian high commissioner Gautam Bambawale had asked for consular access to Jadhav for the 16th time.
While India has been talking about the Vienna Convention, Pakistan has repeatedly claimed that the 2008 bilateral agreement on Consular Access allowed for both sides to make an exception to the granting of access when issues of “national security” were involved.
“We have made it clear time and again that Pakistan and India have signed an agreement on consular access in 2008, and according to clause VI of that agreement, decision to grant consular access in cases where detentions and arrests relate to political or security matters, the request of consular access will be decided on merits of the case,” the Pakistani foreign ministry spokesman told reporters on April 27.
While India has not officially responded to this argument, Indian officials told The Wire that this clause from the 2008 bilateral agreement cannot be implemented by either side in a way that violates their commitments to the 1963 Vienna Convention.
ICJ’s jurisdiction not an obstacle
Although India and Pakistan have limited the circumstances under which they are willing to subject themselves to the compulsory jurisdiction of the ICJ in so-called ‘contentious cases’, the court has complete locus standi in the Jadhav matter because both countries are party to the Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes, 1963. India acceded to the Optional Protocol, in November 1977, while Pakistan signed on in March 1976. The protocol says that any dispute arising out of the interpretation or application of the VCCR shall lie within the compulsory jurisdiction of the ICJ, and may accordingly be brought before the court by any party to a dispute.
According to Yateesh Begoore, an international law specialist,, India is not the first nation to invoke this protocol in order to defend the rights of its nationals in the custody of another country.
In an article for The Wire, he described how Mexico took the US to the ICJ in 2004 over the fact that a number of Mexicans had been sentenced to death in different states of the US without Mexican diplomatic representatives being informed at the appropriate time as envisaged by the VCCR. The ICJ found the US had violated its obligations under the Vienna Convention and asked Washington to review and reconsider the cases of the Mexicans. Earlier, the ICJ had issued a similar ruling in a case where a US court had sentenced German nationals to death without informing them of their rights under article the VCCR.
Yateesh says the “Indian recourse to the ICJ may be expected to produce similar results with the ICJ ordering Pakistan to review and reconsider Jadhav’s trial, in which he may be afforded adequate legal representation arranged by the Indian government. This would satisfactorily protect India’s – and Jadhav’s – interests in the present dispute.”
The Indian request marks the first time the country has itself approached the ICJ in 46 years and only the second time it has opted to take a dispute to the court since 1947. In 1971, India went to the ICJ to challenge the jurisdiction of the International Civil Aviation Organisation to interfere in its sovereign to right to ban Pakistani overflights in its airspace following a terrorist hijacking of an aircraft. India lost that case with the court ruling that ICAO was indeed competent to adjudicate on the overflight issue.
India has figured in the court’s proceedings on at least four other occasions because of cases files by Portugal (1955) on the question of right of passage through Indian territory from Goa to Dadra and Nagar Haveli, Pakistan (in 1973, over the trial of Pakistani prisoners of war, and in 1999 over the aerial incident in which India shot down a Pakistani plane over the Rann of Kutch). Most recently, the Marshall Islands, which accused India and other countries possessing nuclear weapons of violating their legal obligations to pursue disarmament, took India to the ICJ.
No danger of downside
Since the Indian request in the Jadhav case is driven by the specifics of the VCCR and its Optional Protocol, the Ministry of External Affairs appears to have taken the view that there is little downside to invoking the compulsory jurisdiction of the ICJ for this matter. In 2015, the Supreme Court had asked the government to consider going to the ICJ over the torture and mutilation of an Indian officer, Saurav Kalia, by the Pakistanis during the Cold War.
The proposal was a “non-starter”, argued V.S. Mani, one of India’s leading experts in international law before his untimely death last year, because India has already told the ICJ that it cannot exercise jurisdiction over disputes involving a country like Pakistan – other than when it has compulsory jurisdiction (as in the Jadhav case).
Mani explained: “The Declaration made by India on September 18, 1974 accepting the optional jurisdiction of the International Court of Justice specifies, inter alia, that the following categories of disputes shall be outside the purview of the Court’s jurisdiction:
(2) disputes with the government of any State which is or has been a Member of the Commonwealth of Nations;
(4) disputes relating to or connected with facts or situations of hostilities, armed conflicts, individual or collective actions taken in self-defence;
(7) disputes concerning the interpretation or application of a multilateral treaty unless all the parties to the treaty are also parties to the case before the Court or Government of India specially agree to jurisdiction.
The 1960 Declaration made by Pakistan under the Optional Clause of the ICJ Statute embodies a similar multilateral treaty reservation.”
In 1999, Pakistan had dragged India to the ICJ over the shooting down by Indian Air Force of a Pakisani Breguet Atlantique patrol plane, carrying 16 persons, for allegedly violating Indian airspace near the Rann of Kutch.
At that time, India argued that there was no treaty in force between the two countries which conferred jurisdiction upon the ICJ. Further, India said that both South Asian rivals were Commonwealth members and since New Delhi’s acceptance of the court’s jurisdiction specifically excluded Commonwealth states, the ICJ could not hear the case.
The ICJ accepted all of India’s arguments that the court had no jurisdiction by a majority of 14 to 2 in June 2000.
In the Jadhav case, however, the court will have jurisdiction because both India and Pakistan granted it this power when they signed the Optional Protocol of the Vienna Convention on Consular Relations.