New Delhi: The International Court of Justice (ICJ) in The Hague on Thursday stayed Pakistan’s death sentence on Indian national Kulbhushan Jadhav.
Right at the outset, the court declared that the ICJ does have jurisdiction in the case India has filed against Pakistan, as the Vienna Convention on Consular Relations does not exclude those who have been accused of spying. Pakistan had argued that the ICJ does not have jurisdiction. “On the date the application was filed a dispute existed between the parties as to consular access with regard to trial and sentencing of Mr Jadhav. The acts alleged by India are culpable of falling under the Vienna Convention guaranteeing the right to communicate and have access to consular access rights,” The Hindu quoted Judge Ronny Abraham, president of the court, as saying.
ICJ says 2008 bilateral agreement stage does not preclude application of Vienna Convention and its Optional Protocol giving ICJ jurisdiction
— Siddharth (@svaradarajan) May 18, 2017
The ICJ also said that the rights India claimed under the Vienna Convention are “plausible,” and that there exists a link between the rights claimed by India and the action India seeks. Since Jadhav is under the death sentence, the court said there are “real risks to irreparable prejudice” to the rights India is claiming.
“It [the court] considers that the mere fact that Mr. Jadhav is under a death sentence and might therefore be executed is sufficient to demonstrate the existence of a risk of irreparable prejudice to the rights claimed by India. The Court further observes that Pakistan has indicated that any execution of Mr. Jadhav would probably not take place before the month of August 2017. This means that there is a risk that an execution could take place at any moment thereafter, before the Court has given its final decision in the case. The Court also notes that Pakistan has given no assurance that Mr.Jadhav will not be executed before the Court has rendered its final decision. In those circumstances, the Court is satisfied that there is urgency in the present case,” the ICJ said in a statement after today’s ruling.
Pakistan said Jadhav won't be executed before his appeal period but ICJ may not give verdict by then, so there is risk of irreparable damage
— Siddharth (@svaradarajan) May 18, 2017
Given this analysis, the ICJ has said that Pakistan must take all measures at its disposal to ensure that Jadhav is not executed before the final settlement of the case at the international court. The matter is sub judice while it is in front of the court, Judge Abraham said, and so Pakistan cannot execute Jadhav in the meanwhile.
“The International Court of Justice (ICJ), principal judicial organ of the United Nations, today indicated to the Islamic Republic of Pakistan that it must “take all measures at its disposal” to ensure that Mr. Kulbhushan Sudhir Jadhav, of Indian nationality, is not executed pending a final judgment of the Court in the Jadhav Case (India v. Pakistan),” the ICJ statement said.
“In its Order indicating provisional measures, which was adopted unanimously, the Court also stated that the Government of Pakistan shall inform it of all measures taken in implementation of that Order. It further decided to remain seised of the matters which form the subject of the Order until it has rendered its final judgment.”
Pakistan has responded to the ruling by saying that the ICJ “has clearly underscored that the provisional measures are without prejudice to the final determination of the merits and jurisdiction of the case.”
A press release issued by the office of the Attorney General stated that the provisional measures are a procedural process only to enable the court to have “full consideration at a later hearing,” and that these measures “have no bearing whatsoever on the final decision of the court.”
“As far as Pakistan is concerned, the court’s decision today has not changed the status of commander Jadhav’s case in any manner.”
Read the full ICJ statement: