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Violation of Vienna Convention, misuse of military courts, ICJ asks Pak to suspend Jadhav death sentence

July 18, 2019

Violation of Vienna Convention, misuse of military courts, ICJ asks Pak to suspend Jadhav death sentence

In what can be termed as a virtual victory for India in the long-pending case of Kulbhushan Jadhav, the International Court of Justice (ICJ) on Wednesday asked Pakistan to ensure retired navy officer Kulbhushan Jadhav’s right to consular access and also issued a direction to India’s neighbouring country to review the conviction of the latter on the charges of spying for India.

Pakistan was left red-faced as the verdict swung in India’s favour 15:1, and now the country, often accused of being ruled by its high-handed army, will have to conduct fresh trials in the case.

While reading out the judgement President of the ICJ, Judge Abdulqawi Ahmed Yusuf stated, “Jadhav’s death sentence should remain suspended until Pakistan effectively reviews and reconsiders the conviction/sentence in light of Pakistan’s breach of Art 36(1) i.e. denial of consular access and notification”.

Violation of Vienna Convention

As India had maintained in the Court during the entire trial that by not allowing consular access to Jadhav, Pakistan has violated Article 36(1) of Vienna Convention, Pakistan, in its argument, had said: “Surely (it) was not allowed for good reason in terms of the agreement of 2008, specially for the reason that commander Jadhav being involved in espionage.”

In its verdict, the Court finally noted that Pakistan had violated Vienna convention and not given consular access to Jadhav.
The ICJ also slammed Pakistan and stated, “The court has found that Pakistan deprived India of the right to communicate with and have access to Kulbhushan Jadhav, to visit him in detention and to arrange for his legal representation, and thereby breached obligations incumbent upon it under Vienna Convention on Consular Relations”.

It was a diplomatic victory for India that had on May 8, 2017 instituted proceedings in the International Court of Justice against Pakistan for egregious violation of the Vienna Convention on Consular Relations, 1963 and asked the Court to issue ‘Provisional Measures’. India also asked the Court to issue immediate instructions to Pakistan to not take any action on the death sentence awarded to Jadhav till India’s request for provisional measures was considered.

Soon after the judgment, former minister of Foreign Affairs Sushma Swaraj tweeted, “I thank Prime Minister Shri Narendra Modi for our initiative to take Jadhav’s case before International Court of Justice”. In continuation of tweets she wrote, “I hope the verdict will prove much needed solace to the family members of Kulbhushan Jadhav”.

Another step forward to bring Jadhav home

The latest ICJ verdict is being taken as a huge blow to Pakistan’s stand in the case and victory for India, but it will not be soon that Jadhav will be sent back to India. The ICJ has rejected most of the remedies sought by India, including annulment of military court decision convicting Jadhav, his release and safe passage to India.

Pakistan had, in March 2016, claimed that it arrested Jadhav from Balochistan for spying for India. However, there were many holes in Pakistan’s arrest theory citing which India had rejected the claims and stated that Jadhav is a retired navy officer and has his own business in Iran.

Later a military court in Pakistan issued death sentence to Jadhav on the basis of “confessions” taken in captivity and with no access to any consular. Military courts were set up after 2015 in Pakistan as an instrument for the military to engage in summary trials. These courts are responsible for several death sentences after April 2017.

What’s the case
On May 18, 2017, ICJ unanimously issued a binding order indicating Provisional Measures asked by India to take all measures to prevent the execution of Jadhav pending final judgment of the Court.

India accused Pakistan in ICJ of violating the provisions of Vienna Convention in case of Jadhav by not allowing consular access to him. Representing India in the case, noted lawyer Harish Salve argued in the court on two points that included breach of Vienna Convention and process of resolution of the case.
India also argued that Pakistan is in breach of Article 36(1) (b) of the Vienna Convention which obliged Pakistan to inform India of the arrest of an Indian national “without delay”. Jadhav was purportedly arrested on March 3, 2016, and it was only on March 25, 2016 that the Foreign Secretary of Pakistan informed the Indian High Commissioner in Islamabad of his arrest.