New Delhi: When the president of the International Court of Justice (ICJ), Judge Abdulqawi Ahmed Yusuf, starts reading out the final verdict on India’s suit against Pakistan on Kulbhushan Jadhav on Wednesday, it will mark the end of the legal battle which began exactly 800 days ago and a period of severe downturn in relations between the two countries.
Pakistan has claimed that Kulbhushan Sudhir Jadhav is a serving Indian Navy officer, who was arrested in Balochistan in March 2016 after crossing over from Iran. He was charged with espionage and terrorism, and sentenced to death by a military court in April 2017.
Dismissing the allegation, India has stated that Jadhav had been kidnapped from Iran by Pakistani authorities. New Delhi had also denied that he was a serving officer and claimed that Jadhav had retired from the Indian Navy in 2001.
After Jadhav was sentenced to death, India went to the ICJ seeking an immediate stay on the proceedings. India also sought relief against Pakistan for the “egregious breach” of key provisions of two multilateral treaties.
India has asked for restitution from Pakistan’s actions based on these four points:
- Immediate suspension of the death sentence.
- Declaration that the sentence by the Pakistani military court was in “brazen defiance” of the Vienna Convention on Consular Relations (VCCR) and the International Covenant on Civil and Political Rights (ICCPR) since Pakistan had not given India consular access to Jadhav.
- Direction to Pakistan to annul the decision of the military court “as may be available to it under the law in Pakistan”.
- Declaration of the sentence as ‘illegal’ and the release of Jadhav if Pakistan is unable to annul the decision.
India and Pakistan have submitted a total of 375 pages in written arguments and hundreds of additional pages as annexure. There were at least five days of public hearings, including those for urgent provisional measures.
The Wire has parsed some of the key legal arguments used by the two countries.
India has dragged Pakistan before the ICJ for violating Article 36 of the VCCR, which rules that consular officers should have right to visit and access their nationals in a foreign state.
Here, India has invoked the jurisdiction of the ICJ only under paragraph 1 of Article 36, but not the second paragraph of the same Act. Article 36 (2) states that the rights in paragraph 1 “shall be exercised in conformity with the laws and regulations of the receiving state, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this article are intended”.
Pakistan reiterated that a 2008 bilateral agreement on consular access between India and Pakistan was the key pact in play in the current situation, instead of the VCCR.
“The 2008 Agreement was clearly intended to have legal effect, and can only be viewed as amplifying and supplementing the provisions of the VCCR 1963 as otherwise operative between these two states whose relationship has been fractious at times,” its submission to the ICJ, known as a counter-memorial, contended.
India asserted that the 2008 bilateral agreement could not supersede the 1963 agreement. Instead, it pointed out, the relationship between bilateral treaties and the VCCR was that of “agreements confirming, or supplementing or extending or amplifying the provisions (of Convention) thereof”.
Further, India stated that domestic law cannot, in any event, “be a defence for violation of international obligations”.
In 2004, ICJ had ruled in the ‘Avena case’ that US had violated VCCR by not providing consular access to Mexico for latter’s 50-odd nationals who were on death rows in various American states. Three years earlier, US had been similarly found wanting in applying article 36 of VCCR and depriving two German brothers from getting consular assistance.
Both India and Pakistan have accepted the VCCR and its Optional protocol, without any reservations. Optional Protocol’s Article 1 states, “Disputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the Court by an application made by any party to the dispute being a Party to the present Protocol.”
Pakistan further argued that VCCR’s article 36 is “not engaged until and unless the ‘sending state’ furnishes evidence of the nationality of the individual”.
— ANI (@ANI) July 17, 2019
Describing this argument as frivolous, India noted that in all communications, Pakistan had described Jadhav as an Indian national.
Referring to the 2004 Avena judgment, Pakistan claimed that the court had made an observation on the need for Mexico to prove the nationality of 52 persons. India contended that the ICJ had made that observation since US had claimed that most of persons listed were US nationals, rather than Mexican.
“The need to establish a fact arises where the fact is in dispute. This is elementary in adversarial proceedings,” India said.
Relevance of nature of charges against Jadhav
Pakistan has also claimed that customary international law or state practice “provides no support (or clear and cogent support) to the contention that Article 36 is applicable to individuals accused of espionage”.
It has cited several cases from 1938 to modern times to show the “reluctance of states to provide consular access to espionage agents has been maintained, up to and beyond the entry into force of the VCCR”.
However, India pointed out that the examples mentioned by Pakistan were wanting in detail and that digging into their particulars gave a different picture.
For example, Pakistan referred to the case of Chinese-American Xue Feng, who was arrested and convicted for illegally obtaining state secrets from the Chinese oil industry. The Pakistani counter-memorial emphasised that China had not given consular access to US for 32 days.
India pointed out that as a “matter of principle, examples where states have granted consular access after considerable delay or have denied access cannot affect the interpretation of the treaty and of Article 36 in particular”.
In the background to the Jadhav case, Pakistan stated that Jadhav was arrested on March 3, 2016, but was only announced on March 25 after he “confessed”.
“There is no material placed which would establish that giving consular access prior to extracting a confession would have so imperilled its security or hampered investigation, that delaying making available of this information by 22 days was justified,” said the Indian rejoinder.
During the public hearings in February 2019, Pakistan had sought to play the video ‘confessions’, but India had objected, stating that it had no material relevance.
Incidentally, India’s reply mentions that it had conducted an independent forensic study into the video confession of Jadhav which shows that it was “anything but voluntary and a heavily edited version”.
Case of the passport
Pakistan states that the “central question” is that India had provided a passport to Jadhav to travel frequently using a false identity in a Muslim name, ‘Hussain Mubarak Patel’. It furnished a report written by an independent expert, a former UK government official, to claim that the travel document found with Jadhav was an “authentic” Indian passport.
Islamabad argued that even if the Indian government had “merely facilitated” Jadhav’s travels, it was enough for the ICJ to dismiss the case on grounds of either “abuse of process”, “abuse of rights” or “unclean hands”.
India contended that it “does not accept that in the first instance such a passport was recovered from Jadhav”.
The key issue, as per New Delhi, is that the allegations of espionage were not established in a trial that would meet the standards of minimum due process. “Not having established in a fair trial by an independent judicial tribunal and by a process that conforms to the minimum due process standards, that Jadhav was engaging in any illegal activities, Pakistan seeks to fill this gap between allegations and proven facts by resorting to hyperbole,” it said.
Pakistan had also referred to Indian media reports to claim that Jadhav was an Indian spy. The Indian side replied that it was “a measure of the freedom of the press in India, where no curbs are placed retorted expression of individual opinions even if they be contrary to the stated position of the government of India”.
Pakistan seeks Indian assistance for investigation
On January 23, 2017, Pakistan had sent a note verbale to India, saying that it wanted assistance for an investigation into allegations against Jadhav as mentioned in FIR ‘6/2016,’ dated April 8, 2016. Following that, Pakistan sent other missives to link the issue of India’s request of consular access to Jadhav to the assistance provided in an investigation.
India pointed out that requests for assistance amongst states are subject to bilateral mutual legal assistance treaties. “India invited Pakistan to enter into a Mutual Legal Assistance Treaty (MLAT), but Pakistan has not responded,” it contended.
However, by refusing assistance, Pakistan asserted that India had violated Article 2 (f) of the UN Security Council resolution 1373 which was a failure “to act in good faith to the standard required by international law”.
Pakistan countered that a lack of mutual legal assistance treaty does not affect the “applicability and binding nature of an obligation contained in a Chapter VII UN Security Council Resolution”
India retorted that Pakistan’s request did not satisfy the standards, as it failed “to provide any evidence of material that would prima facie establish the commission of an offence”.
“A reading of the letter of request leaves no manner of doubt that it is yet another step in the same direction of propaganda warfare,” India stated.
Credibility of military courts
Pakistan has accused India of using language to insinuate that military courts were “akin to kangaroo courts”. “This is most unfortunate, not least because the military courts of India and Pakistan share the same origins,” it said.
India, however, asserted that it “had not used any such expression despite provocation, for using such language does not advance the case of a party”.
It lashed out against any attempts to show similarity between Indian and Pakistani military courts, saying that the claim was “misleading” as Indian military courts had absolutely no jurisdiction over civilians. “In Pakistan, military courts have been authorised to try civilians to the exclusion of the regular criminal courts. No such thing has even been mooted in India,” India said.
Here, India mentioned that the trial of the sole-surviving 26/11 terrorist, Ajmal Kasab “showed the rigorous standards of due process in the Indian legal system”
Violation under ICCPR
India has described Article 36 of VCCR as an “inextricable constituent” of the “due process” rubric of human rights jurisprudence that evolved after the International Covenant on Civil and Political Rights (ICCPR) was brought into force on March 23, 1976.
“A vital element of due process is the right to an effective defence against criminal charges, and to a fair and impartial trial, in which the accused is represented by a lawyer of his choice. This is the due process guarantee, whether viewed in the context of ‘minimum standards’, or through the prism of Article 14 of the ICCPR,” India asserted.
It claimed that “states which signed and ratified the treaty should be judged by the standards of the covenants of that multilateral treaty”.
Further, India noted that the UN human rights committee had, in cases of allegations of violation of the ICCPR, applied principles of state responsibility by ordering the release, or a retrial with all the guarantees, and if not possible, then release of the detenu whose rights were violated. Pakistan had signed and ratified the ICCPR.
Pakistan argued that India was not a party to the First or Second Optional Protocols to the ICCPR, which recognised the jurisdiction of the human rights committee and the abolition of death penalty respectively.
India asserted that this was not relevant as ICCPR has played a “vital role” in Indian domestic jurisprudence. The Indian Supreme Court has frequently relied on ICCPR to “give an expansive meaning to the provisions of the Constitution which recognise civil rights and liberties”, it added.
Relief sought by India
While India has requested the court to annul the death sentence and order the release and transfer of Jadhav, Pakistan asserted that the ICJ could at most order for the “review and reconsideration” of the process.
Pakistan claimed that India was seeking for the ICJ to act as an appellate criminal court, which it said was contrary to the Court’s own observations in previous contentious cases. It asserted that Pakistan’s legal system allowed for appropriate clemency procedures, which were already utilised by Jadhav.
In reply, India pointed out that Pakistan was itself asking ICJ to act as an appellate criminal court by bringing up the issue of Jadhav’s passport and alleged “confession”.
It noted that the only remedy available to those convicted under Pakistani military courts is by judicial review “which by their very nature are narrow in their scope”.
India asserted that Pakistani law does not have an appellate procedure by which a trained independent judge dispassionately reviews the findings of a military court. “In the absence of any independent procedure of trial or review of the evidence de novo by an independent appellate court, India claims that the relief that should be granted is as has been sought in its memorial,” it asserted.
Pakistan’s contention that the ICJ does not have the power to grant such relief would “seriously curtail” its power to grant protection to victims of human rights abuses and facing capital states and those of states to help its nationals to effectively defend themselves, India stated.
The written reply filed by Pakistan in July 2018 insisted that in the previous one year, Pakistani civilian courts had stayed death sentences of military courts on three occasions and also set aside capital punishment against another in one case.
Pakistan had annexed a report from “independent pre-eminent military law experts from the United Kingdom” which ostensibly showed that the military court was “soundly based”. Yet, quoting from the same report, India said the experts “hardly support” Pakistan, but rather “substantially confirm what India has said about the failings in the system of trial by military courts”.
Even if the ICJ does take cognisance of India’s claims of VCCR violation, Pakistan has asserted that the conduct of the Indian state or of Jadhav must be taken into account when deciding any compensation “including whether the conduct is of such grave illegality that it militates against the granting of any relief at all”.
India had again dismissed this line of argument asserting that state responsibility was not a factor when deciding violations of Article 36 of VCCR that plainly states that consular access had to be given “without delay”.