The Kulbhushan case: Aftermath, recent progress and way forward - The Daily Guardian
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The Kulbhushan case: Aftermath, recent progress and way forward

The ICJ in its judgement noted that Kulbhushan Jadhav has been in the custody of the Pakistani authorities since 3 March 2016, however the circumstances of his arrest remain in dispute as India contended that he was kidnapped from Iran, where he was residing and carrying on business after retiring from the Indian Navy and was subsequently transferred to Pakistan and detained for interrogation.

Arindam Bharadwaj

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The International Court of Justice (ICJ) in the India vs. Pakistan case, also referred as the Kulbhushan Jadhav case, held Pakistan to be in violation of its obligation under the Vienna Convention and directed it to provide unimpeded consular access to Mr. Jadhav. More than a year has passed after the ICJ gave its judgement however Pakistan has not yet provided Mr. Jadhav was an unimpeded and credible consular access and have time and again failed to comply with the letter and spirit of the ICJ’s judgement. The ICJ also required Pakistan to provide Mr. Jadhav with an effective review and reconsideration of his conviction and sentence, which also has not been effectively complied by Pakistan.

Background of the case

The ICJ in its judgement noted that Mr. Jadhav has been in the custody of the Pakistani authorities since 3rd March, 2016 however the circumstances of his arrest remain in dispute as India contended that Mr. Jadhav was kidnapped from Iran, where he was residing and carrying on business after retiring from the Indian Navy and was subsequently transferred to Pakistan and detained for interrogation. Pakistan on the other hand contented that Mr. Jadhav was arrested in Balochistan, near the border with Iran, after illegally entering the Pakistani territory with an Indian passport bearing the name of ‘Hussein Mubarak Patel’. Pakistan thereafter booked Mr. Jadhav for performing the acts of espionage and terrorism on behalf of India, which was vehemently denied by India.

The trial of Mr. Jadhav, as per the submissions by Pakistan, started on 21st September, 2016 and was conducted before a Field General Court Martial. He was tied under Section 59 of the Pakistan Army Act of 1952 and Section 3 of the Official Secrets Act of 1923. After conducting the trial for less than seven months, Mr. Jadhav was sentenced to death by the Field General Court Martial on 10th April, 2017. Subsequently, the High Commission of India in Islamabad transmitted to Pakistan an appeal against the sentence of death penalty on behalf of Mr. Jadhav’s mother and a petition to the Federal Government of Pakistan under Section 131 of the Pakistan Army Act. On 22nd June, 2017 the Inter Service Public Relations of Pakistan issued a press release stating that Mr. Jadhav had made a mercy petition to the Pakistani Chief of Army Staff. However the status of both the appeal and the mercy petition were not further communicated to India by its Pakistani counterpart.

The Case at the ICJ

Since both India and Pakistan were parties to the Vienna Convention and the Optional Protocol to the Vienna Convention on Consular Relations Concerning the Compulsory Settlement of Disputes (“Optional Protocol”), India after failing to amicably resolve the dispute with Pakistan, sought it best to approach the Hon’ble International Court of Justice under Article 36 paragraph 1 of the Statute of the International Court of Justice and Article 1 of the Optional Protocol. On 8 May 2017, India filed an Application before the ICJ instituting proceedings against Pakistan.

 In the Court’s view the primary dispute between India and Pakistan was concerning the Consular assistance with regard to the arrest, detention, trial and sentencing of Mr. Jadhav. India also submitted that Pakistan has violated Mr. Jadhav’s elementary human rights, which are to be given effect as mandated under Article 14 of the International Covenant on Civil and Political Rights, 1966.

 India, on the Vienna Convention, contended that Pakistan acted in breach of its obligations under Article 36 (i) by not informing India, without delay, of detention of Mr. Jadhav; (ii) by not informing Mr. Jadhav of his rights under Article 36; and (iii) by denying consular officers of India access to Mr. Jadhav. Pakistan on Article 36 of the Vienna Convention contended that the same does not apply in prima facie cases of espionage.

The majority of the judges, on the applicability of Article 36 of the Vienna Convention, sided with India by holding that Pakistan breached its obligation under the treaty by not informing Mr. Jadhav of his rights under Article 36 and by informing India about the arrest of Mr. Jadhav after a considerable delay of three weeks, which constituted a breach of the obligation to inform ‘without delay’ as required by Article 36 of the Vienna Convention. The Court was also of the view that Pakistan had breached its obligations incumbent on it under Article 36 by denying Mr. Jadhav access to the consular services provided by the Indian High Commission at Pakistan. Not informing about his rights and denying consular access to Mr. Jadhav by Pakistan were considered as internationally wrongful acts of a continuing character. Accordingly, the Court was of the view that Pakistan is under an obligation to cease act which constituted a breach of its obligations and to comply fully with its obligations under Article 36 of the Vienna Convention. Consequently, Pakistan was directed to inform Mr. Jadhav without further delay of his rights under Article 36, paragraph 1 (b), and allow Indian consular officers to have access to him and to arrange for his legal representation, as provided by Article 36, paragraph 1 (a) and (c).

Apart from the submissions under Article 36 of the Vienna Convention, India also submitted before the ICJ that the Court must declare the sentence handed down by Pakistan’s military court as violative of international law and the provisions of the Vienna Convention. The Court however refused to pass any directions in this regard primarily because the Court’s jurisdiction in the present matter was just limited to the interpretation or application of the Vienna Convention and does not extend to India’s claims based on any other rules of international law. However the Court did hold that Pakistan was under an obligation to provide effective review and reconsideration of the conviction and sentence of Mr. 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 Vienna Convention.

Finally, the Court as a provisional measure, directed Pakistan to take all measures at its disposal to ensure that Mr. Jadhav is not executed pending the final decision in the present proceedings. The Court also considered that a continued stay of execution constituted an indispensable condition for the effective review and reconsideration of the conviction and sentence of Mr. Jadhav. The Judgement was delivered by the ICJ on 17th July, 2019.

 Jadhav meets his Family

Few months after the case was brought before the ICJ, the mother and the wife of Mr. Kulbhushan Yadav were called in Islamabad by the Pakistani Authorities to pay a visit to Mr. Jadav in December, 2017. The two Governments through its diplomatic channels worked out its modalities and formalities. However, after the meeting, the Ministry of External Affairs, Government of India, issued a strong statement against the way in which Pakistan conducted the meeting which was in violation of the understanding both the Governments previously entered into. The press was being allowed to approach the family members closely and they harassed and hectored the family members at several instances. The mother and the wife of Mr. Jadhav were being asked to remove there mangal sutra, bangles and bindi on the pretext of security, which was totally unwarranted and unreasonable. The mother of Mr. Jadhav was prevented from talking in their mother tongue, which was their natural medium of communication and the Deputy High Commissioner was being asked to stay away from the family members during the meeting and witness the meeting from behind an additional partition which did not allow him the access to the meeting, contrary to what was agreed upon by both the Governments. Moreover, from the feedback received from the Indian authorities and family members, it appeared to the authorities that Mr. Jadhav was under considerable stress and was speaking in an atmosphere of coercion whereby his responses seemed clearly tutored. His appearance also raised questions with respect to his health and well-being.

 Consular access to Jadhav

After the ICJ delivered its judgement in favour of providing consular access to Mr. Jadhav on 17th July 2019, the first consular access to Mr. Jadhav took place on September 2, 2019, when the Indian deputy high commissioner Gaurav Ahluwalia had met with Jadhav at a specially created sub-jail in the presence of Pakistani officials. The meeting lasted for nearly two hours which also was recorded by the officials. The then official spokesperson of the Ministry of External Affairs (MEA), Government of India issued a public statement after the meeting saying that Mr. Jadhav appeared to be under extreme pressure to parrot a false narrative to bolster Pakistan’s untenable claims.

 Recently on July 16th, 2020 the official spokesperson of MEA issued a statement condemning Pakistan’s failure to provide unimpeded and unconditional consular access to Mr. Jadhav. The official spokesperson stated that over the past year, India had requested Pakistan more than twelve times to provide unimpeded, unhindered and unconditional consular access to Mr. Jadhav, who remains to be incarcerated in the Pakistani Custody since 2016. Even on 13th July, 2020 India requested the Pakistani authorities for an unimpeded, unhindered and unconditional consular access and was also asked to ensure that the meeting be held in an atmosphere free from fear of retribution and without the presence of any Pakistani official in the close vicinity of Mr. Jadhav and the Indian consular officials. Pakistan was also requested to not record the video as well as the audio of the meeting and ensure privacy.

After intensive discussions, the Pakistani authorities agreed to give consular access and were ready to organise the meeting on 16th July, 2020 in consonance to the various requests made by the Indian authorities. On the basis of the assurance given two Consular Officers of the Indian High Commission proceeded to the meeting with Mr. Jadhav but regrettably, neither the environment not the arrangements of the meeting were in accordance to what was initially agreed. The Consular officers were not given an unimpeded, unhindered and unconditional consular access to Mr. Jadhav and the Pakistani officials with an intimidating demeanour were present in close proximity of the meeting. The meeting was being recorded contrary to what was agreed upon and Mr. Jadhav himself seemed under stress to the consular officers. The Consular officers were infact prevented from obtaining Mr. Jadhav’s written consent for arranging a legal representation and could not also discuss Mr. Jadhav’s legal rights with him.

Review of Jadhav’s death sentence

As per the ICJ’s directives, Mr. Jadhav was to be given all the opportunities and afforded all the resources for the effective review and reconsideration of his conviction and sentence. Accordingly in May 2020, the Government of Pakistan promulgated an ordinance named the International Court of Justice (Review and Reconsideration) Ordinance, 2020 which mandated that a petition for review and reconsideration of conviction by military tribunal could be made to the Islamabad High Court through an application within 60 days from the day the ordinance was brought into force. The petition under this Ordinance could be filed by Mr. Jadhav himself, a legally authorised representative or a consular officer of the High Commission of India in Islamabad. As per the Pakistani authorities, Mr. Jadhav was invited to file a review petition for his sentence and conviction but it was claimed that Mr. Jadhav refused to file a petition for review and conviction and rather insisted to follow up on his pending mercy petition. India however dismissed this claim by Pakistan and saw it as a sign of coercion.

 Recent Developments

In a unilateral move, the Ministry of Law and Justice vstan filed a petition before a two judge bench of the Islamabad High Court on July 22nd, 2020 seeking the appointment of a legal representative for Mr. Jadhav under the recent Ordinance passed by the Government of Pakistan. However, the Government of India was not consulted ahead of the filing of this application. The Islamabad High Court on August 3rd, 2020 ordered the Pakistan Government to give India a chance to appoint a representative for Mr. Jadhav. The hearing thereafter has been adjourned to September 3rd, 2020.

The Way Forward

Article 60 Statute of the International Court of Justice states that the judgement delivered by ICJ shall be final and without any appeal. Further even Article 94(1) of the Charter of the United Nations states that each member of the United Nations (UN) undertakes to comply with the decision of the International Court of Justice in any case to which it is a party. Both India and Pakistan, being parties in the case and members of the UN have to comply with the judgement of the ICJ.

However, recent incidents have shown us that Pakistan has time and again failed to honour their part of the obligation and has failed to comply with the letter and spirit of the ICJ’s judgement by not providing unimpeded, unhindered and unconditional consular access to Mr. Jadhav. An unimpeded consular access would mean a meeting in an environment free from the fear of intimidation and reprisal, where Indian officials would be able to have a private, confidential conversation with Jadhav, without being heard or recorded. At two instances consular access was being offered but they were neither meaningful nor credible and were not in consonance with the ICJ’s directives and the understanding between both the governments.

 The ICJ in its judgement in the Mexico vs. United States of America (2004) case, while discussing the essentials of the Vienna Convention, pointed out that there are certain standards to be observed by all State parties, with a view to the “unimpeded conduct of consular relations”, which is important in present-day international law in promoting the development of friendly relations among nations, and ensuring protection and assistance for aliens resident in the territories of other States. Pakistan’s conduct in refusing consular access despite repeated reminders by India, plainly violates its obligations under Article 36. It is now obvious that Pakistan has violated, and continues to violate the Vienna Convention, knowingly and wilfully.

While eminent lawyer Shri Harish Salve (QC), who also represented India in the Jadhav case, has said that the Government of India might have to go back to the ICJ since Pakistan has shown no signs of implementing the July 2019 judgement, the proper course however would be to approach the United Nations Security Council. Article 94(2) of the Charter of the United Nations states that if any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the ICJ, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment. The powers provided to the Security Council under Art. 94(2) are discretionary powers and the same has been conferred upon to make recommendations or take appropriate measures that are necessary to give effect to the ICJ judgments.

India, in June 2020, successfully confirmed its seat as a non-permanent member (for a two year term) in the United Nations Security Council with an overwhelming majority. India gained 184 votes out of a total of 193 votes in the General Assemble. Moreover India was the sole candidate from the Asia-Pacific region vying for the non-permanent membership. We have also witnessed India being at the forefront in fighting the COVID-19 virus, boosting up its economy in such unprecedented times and helping several countries like the USA, Afghanistan etc. by supplying food grains and important medicines like hydroxycloroquine for fighting against the COVID-19 virus. India, emerging as a world leader today and having such a strong position in the Security Council, can definitely deal with Pakistan with a firmer hand and make it discharge its legal obligations owed towards Mr. Jadhav and India under the Vienna convention and the ICJ’s judgement in the India vs. Pakistan case.

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