Alert Sign Dear reader, online ads enable us to deliver the journalism you value. Please support us by taking a moment to turn off Adblock on Dawn.com.

Alert Sign Dear reader, please upgrade to the latest version of IE to have a better reading experience

.

ICJ rejects India’s plea for Jadhav's return, grants consular access

Updated July 17, 2019

Email

Judges are seen at the International Court of Justice during the final hearing in the Kulbhushan Jadhav case in The Hague, the Netherlands, on  February 17.
— Reuters
Judges are seen at the International Court of Justice during the final hearing in the Kulbhushan Jadhav case in The Hague, the Netherlands, on February 17. — Reuters
Jadhav — a serving commander of the Indian Navy associated with Indian spy agency Research and Analysis Wing — was arrested on March 3, 2016, from Balochistan on allegations of espionage and terrorism. — DawnNewsTV/File
Jadhav — a serving commander of the Indian Navy associated with Indian spy agency Research and Analysis Wing — was arrested on March 3, 2016, from Balochistan on allegations of espionage and terrorism. — DawnNewsTV/File

The International Court of Justice (ICJ) on Wednesday announced its verdict on the Kulbhushan Jadhav case, ruling that Jadhav be allowed consular access immediately and asking Pakistan to ensure “effective review and reconsideration of his conviction and sentences”.

The ICJ, however, rejected all other remedies sought by India, which included the annulment of the military court decision convicting Jadhav, restricting Pakistan from executing the sentence, securing Jadhav's release and ordering his return to India.

(L-R) Attorney General Anwar Mansoor, diplomat Mohammad Faisal, Ambassador of Pakistan in the Netherlands, Shujjat Ali Rathore, and Barrister Khawar Qureshi listen to the judgment.
(L-R) Attorney General Anwar Mansoor, diplomat Mohammad Faisal, Ambassador of Pakistan in the Netherlands, Shujjat Ali Rathore, and Barrister Khawar Qureshi listen to the judgment.

Accompanied by Queen's counsel Barrister Khawar Qureshi, a 13-member Pakistani delegation, led by Attorney General Anwar Mansoor along with the Foreign Office’s Director General South Asia Dr Mohammad Faisal and comprising officials of the ministries of law and foreign affairs, was present in the courtroom.

The ICJ said that even though it had found Pakistan in violation of Article 36 the Vienna Convention on Consular Relations (VCCR), "it is not the conviction and sentence of Mr. Jadhav which are to be regarded as a violation of Article 36 of the Vienna Convention."

The most the ICJ said it could do was to order Pakistan to cease violation of Article 36 and review the case in light of how that violation may have affected the case's outcome.

"The Court notes that Pakistan acknowledges that the appropriate remedy in the present case would be effective review and reconsideration of the conviction and sentence," it observed.

To this end, Pakistan was directed to immediately inform Jadhav of his rights under Article 36, grant India consular access, and then review the case while considering, under the laws of Pakistan, how not doing so earlier may have impacted the case's outcome.


Article 36 of the Vienna Convention simply states that when a national of a foreign country is arrested, they must be informed of the right to have their country’s consulate notified and should also have the right to regular consultation with their consulate’s officials during their detention and trial.

Pakistan had argued that Article 36 is not applicable to persons believed to be involved in espionage.


"The Court considers that the violation of the rights set forth in Article 36, paragraph 1, of the Vienna Convention, and its implications for the principles of a fair trial, should be fully examined and properly addressed during the review and reconsideration process," the court directed.

(L-R) Indian lawyer Harish Salve and Dr V.D. Sharma and Deepak Mittal, joint secretaries, Indian Ministry of External Affairs, at ICJ during the final hearing of the Kulbhushan Jadhav case on Wednesday. ─ Reuters
(L-R) Indian lawyer Harish Salve and Dr V.D. Sharma and Deepak Mittal, joint secretaries, Indian Ministry of External Affairs, at ICJ during the final hearing of the Kulbhushan Jadhav case on Wednesday. ─ Reuters

"In particular, any potential prejudice and the implications for the evidence and the right of defence of the accused should receive close scrutiny during the review and reconsideration," it said.

"The Court notes that the obligation to provide effective review and reconsideration can be carried out in various ways. The choice of means is left to Pakistan," it added. However, it stressed that, "Pakistan shall take all measures to provide for effective review and reconsideration, including, if necessary, by enacting appropriate legislation."

While that matter is decided, Pakistan has been directed to suspend the execution of the death penalty awarded to Jadhav.

Read the full judgment below:

FO statement

"Pakistan, as a responsible member of the international community, upheld its commitment from the very beginning of the case by appearing before the honourable court for the provisional measures hearing despite a very short notice. Having heard the judgment, Pakistan will now proceed as per law," the Foreign Office said in a press release shortly after the verdict was announced.

"It is reiterated that Indian Naval Commander Kulbhushan Jadhav entered Pakistan without a visa on authentic Indian Passport with a fake alias, Hussain Mubarak Patel," it continued.

"Commander Kulbhushan Jadhav is responsible for acts of sabotage, espionage and multiple terrorist incidents in which scores of innocent Pakistani citizens were killed, resulting into umpteen women being widowed and numerous children becoming orphans. Commander Kulbhushan Jadhav has confessed to all these acts during his trial in Pakistani court in front of a judicial magistrate. This is a clear case of Indian state terrorism."

Foreign Minister Shah Mehmood Qureshi noted in a press briefing that "Kulbhushan Jadhav will remain in Pakistan. He shall be treated in accordance with the laws of Pakistan."

A timeline of the case. — Design: Leea Contractor
A timeline of the case. — Design: Leea Contractor

'Another Feb 27 for India'

Director General of Inter-Services Public Relations (ISPR) Major General Asif Ghafoor, while speaking to ARY News following the verdict, congratulated the nation on "the success achieved" and lauded the efforts made by the legal team and the FO which represented Pakistan.

"For the verdict to be upheld by an international court where there is no concept of capital punishment is a big victory for Pakistan.

"And for them to say that the review and reconsideration can be done by means of our own choosing is great validation for our judicial system," he said.

"Pakistan will follow the law," he said, reiterating FM Qureshi's statement on the way forward in the case.

"It's another Feb 27 for India; they have been surprised again. They thought that the kind of political capital they have, they can manipulate justice too but that did not happen," said Maj Gen Ghafoor.

He went on to say that India's "false narratives continue" and that "after this verdict they are practically certified to have undertaken state-sponsored terrorism and the world has seen what their role in Pakistan has been."

Case background

Jadhav — a serving commander of the Indian Navy associated with Indian spy agency Research and Analysis Wing — was arrested on March 3, 2016, from Balochistan on allegations of espionage and terrorism.

Read: Transcript of RAW agent Kulbhushan’s confessional statement

In his subsequent trial at a military court, Jadhav had confessed to his involvement in terrorist plots.

The spy was subsequently sentenced to death in 2017. However, India insisted that Jadhav was not a spy and said he was kidnapped from Iran.

On April 10, 2017, Army Chief Gen Qamar Bajwa had endorsed the death penalty for Jadhav. In June 2017, the Indian spy had filed a mercy petition against the death penalty, in which he again confessed to his involvement in terrorist activities.

However, before Pakistani authorities could make a final decision, the International Court of Justice (ICJ), after being approached by India, had ordered a stay in his execution through an interim order.

Related: 'Pakistan made a mistake': Criticism at home over ICJ decision

ICJ hearing

During the hearing of the case in the international court, India denied Jadhav was a spy and had asked the ICJ to order his release because he was denied consular access and not allowed to choose his own defence lawyer.

Attorney General of Pakistan Anwar Mansoor Khan had in turn argued that Jadhav was an Indian spy sent to Balochistan to destabilise the country and therefore not entitled to consular access. He had said that "India's claim for relief [...] must be dismissed."

Khan had told the court that Jadhav ran a network "to carry out despicable terrorism and suicide bombing, targeted killing, kidnapping for ransom and targeted operations to create unrest and instability in the country".

"His unlawful activities were directed at creating anarchy in Pakistan and particularly targeted the China-Pakistan Economic Corridor," Khan had told the 15-judge bench.

India's lawyers told the court in February that it was a “farcical case” based on “malicious propaganda”, while Pakistan's lawyers hit back by accusing Jadhav of “terrorism”.

The last hearing coincided with a sharp spike in tensions between the two nuclear-armed neighbours after a suicide bombing in occupied Kashmir's Pulwama, although relations have since improved.

Family meeting

India also accused Pakistan of harassing Jadhav's family in 2017 during a meeting that it said was held in an “atmosphere of coercion”.

It said Jadhav's conversation with his mother and wife was “tutored and designed to perpetuate the false narrative of his alleged activities in Pakistan”.

Jadhav, on the other hand, said he "saw fear" in the eyes of his mother and wife when he met them in Islamabad on December 25, 2017, adding that an Indian diplomat accompanying them was "yelling at them".