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Setback as ICJ ‘stays’ Indian spy’s execution

Updated May 19, 2017 06:58am
THE HAGUE (The Netherlands): Presiding judge Ronny Abraham of France (right) prepares to read the International Court of Justice’s verdict in the Kulbhushan Jadhav case on Thursday.—AP
THE HAGUE (The Netherlands): Presiding judge Ronny Abraham of France (right) prepares to read the International Court of Justice’s verdict in the Kulbhushan Jadhav case on Thursday.—AP

•Court rules it does have jurisdiction
•Islamabad to appoint ad hoc judge to world court

ISLAMABAD: The Inter­national Court of Justice (ICJ) on Thursday restrai­ned Pakistan from executing convicted Indian spy Kulbhushan Jadhav until a final verdict in the case.

The decision ordering “provisional measures” was adopted unanimously by the 10-member bench at The Hague, which directed Pakistan to “take all measures at its disposal to ensure that Mr Kulbhushan Sudhir Jadhav, of Indian nationality, is not executed pending a final judgement of the court in the Jadhav case (India v. Pakistan)”.

But Pakistani officials are still confident of their chances. In a statement issued from the Attorney General’s office, Ashtar Ausaf Ali explained that as far as Pakistan was concerned, the ICJ decision had not changed the status of Jadhav’s case in any manner, adding that the Indian spy still has ample time to petition for clemency.

Speaking to reporters in Islamabad, the attorney general said that Pakistan would appoint an ad hoc judge to the ICJ when formal proceedings began.

Under ICJ rules, “a state party to a case before the ICJ which does not have a judge of its nationality on the bench may choose a person to sit as judge ad hoc in that specific case”.

India already has Judge Dalveer Bhandari, who has been a member of the court since April 27, 2012, on the panel.

In his statement, the attorney general recalled that Pakistan had assured the world court that the Indian spy would be provided every opportunity and remedy available under the law to mount a defence.

He also pointed out that Jadhav had not yet exhausted all the forums of appeal available to him, including a request filed by his mother, which was currently pending before the appropriate forum.

In its order, the ICJ has asked the Pakistani government to inform it about all measures taken for the implementation of the order.

On May 8, India asked the ICJ to initiate proceedings against Pakistan for allegedly violating Article 36 of the Vienna Convention on Consular Relations (VCCR) by denying it consular access to Jadhav, who has been sentenced to death by a Field General Court Martial (FGCM) over his involvement in espionage and terrorism.

The court held a single round of oral observations on Monday, both by India and Pakistan, during which India pressed for provisional measures, while the Pakistani counsel called for the rejection of the Indian plea on the grounds that the court lacked jurisdiction in the matter, since Jadhav’s execution was not imminent and the petition was not maintainable.

ATTORNEY General Ashtar Ausaf Ali says ruling ‘changes nothing’.
ATTORNEY General Ashtar Ausaf Ali says ruling ‘changes nothing’.

The verdict read out by ICJ President Judge Ronny Abraham listed the reasons for granting the provisional measures sought by India. The court rejected all three elements of the Pakistani argument — reservations about the court’s jurisdiction, maintainability of the petition and urgency of the matter.

Jadhav still has the opportunity to appeal before the military appellate tribunal and seek clemency from the president of Pakistan, but the Indian media has been celebrating the ICJ ruling as a victory in the case.

The world court ruled that denying consular access to Jadhav and not allowing him communication with his government and family appeared to be “capable of falling within the scope of the [VCCR]”.

The court maintained that its jurisdiction in the case was established through the optional protocol, signed by Pakistan. “In the view of the court, this is sufficient to establish that it has prima facie jurisdiction under Article I of the Optional Protocol.”

The Pakistani plea that it has a separate bilateral agreement on consular access with India, which agrees to limitations in political and security related cases, was also turned down. “The court further observes that the existence of a 2008 bilateral agreement between the Parties on consular relations does not change its conclusion on jurisdiction,” Judge Abraham held.

Dismissing Pakistani contention that there was no urgency in the case, the ICJ said the very fact that Jadhav had been sentenced to death was sufficient to indicate the urgency in the matter as it carried the risk of irreparable prejudice to the rights claimed by India.

The court further used Pakistani argument that Jadhav’s execution was still at least months away to observe that there was “a risk that an execution could take place at any moment thereafter (August 2017), before the Court has given its final decision in the case”.

The decisions of the world court are binding, even though it has no means to ensure compliance. Moreover, there have been instances where powerful countries refused to comply and got away with it. But a country such as Pakistan may not be in a position to ignore the ruling.

Reema Omer, a legal adviser for the International Commission of Jurists, told Dawn: “Pakistan is legally bound by ICJ’s verdicts, including orders for provisions measures. Disregarding the order now would not only be legally, but also politically and diplomatically costly for Pakistan”.

She warned that where states did not comply, the ICJ had powers to refer cases to the UN Security Council for action.

But Attorney General Ashtar Ausaf maintained that Pakistan had attended the hearing out of its utmost respect for the ICJ and pursuant to established jurisprudence that the challenge to jurisdiction can be made via appearance and not by abstaining from the process.

In addition, he said, Pakistan attended because of its conviction that the only way to resolve all outstanding issues is through peaceful means.

“We are confident that India would not be able to hide the subversive activities it is trying to carry out through its agents such as Jadhav,” the AG observed.

Published in Dawn, May 19th, 2017