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IN a verdict which was awaited with great anticipation by both Pakistani and Indian authorities, the International Court of Justice on Wednesday made its decision in the case of Indian national Kulbhushan Jadhav, a spy arrested in 2016 in Balochistan and subsequently sentenced to death by a military court in 2017 for his involvement in espionage and sabotage activities. The ICJ’s findings in this case come a year after India approached the judicial body to stay Jadhav’s execution and declare his trial void.
To avoid drawing an oversimplified conclusion which paints only one side as the winner — as Indian authorities have been doing — it is imperative to deconstruct the court’s decision on Jadhav with restraint.
The ultimate question being considered by the court was whether the 1963 Vienna Convention on Consular Relations applies in cases of espionage, as argued by Pakistan, and whether the denial of consular access to Jadhav can be viewed as a breach of obligations under the Convention, as argued by India.
In its findings, the ICJ has granted India consular access to Jadhav and held Pakistan’s argument on the denial of access as incongruent with the VCCR of 1963.
Although Pakistan made several contentions about the applicability of the Convention in light of a 2008 bilateral agreement between Pakistan and India — which makes exceptions for access in cases of espionage — the court found that the agreement did not override the Convention but was supplementary to it.
In a dissenting note, ad hoc judge Justice Tassaduq Hussain Jillani maintained that the Vienna Convention doesn’t apply to spies, and that even if it did, Pakistan had not breached Article 36.
While the court has stayed Jadhav’s execution pending a reconsideration of his conviction and sentence, the exhaustive list of remedies requested by India have not been entertained — that is, India’s request to annul the military court verdict; its appeal for the release and safe passage of Jadhav; its plea for a retrial in civilian courts.
These unconventional requests by India were rightly not granted as the ICJ is not an appellate court and does not have the jurisdiction to even consider such demands. In fact, it is important to note that the court specifically maintains that Jadhav’s conviction and sentence are not regarded as a violation of the Convention and that the obligation to provide effective review can be carried out in various ways. “The choice of means is left to Pakistan,” the order reads.
It is now time for diplomacy to take centre stage in Pakistan-India relations, the future of which will be determined by the engagement of both sides on the issue of consular access. Now that the ICJ has ruled on this matter, Islamabad and Delhi must move forward with maturity and avoid hyperbole which may cause hindrance in the judicial process.
Published in Dawn, July 19th, 2019
Comments (34) Closed
Fair enough but the hyperbole created in this very paper about how Indian requests (made purely for political purposes) were some how rejected when not in the preview of the court speak volumes about the state of press freedom in Pakistan in mho
This is the correct interpretation of the judgement. However there is a sliver of hope that rather than another military court a civilian court will try him and he will be well represented. If a military court does the review then India will surely go back to the ICJ. This and counsellor access were India's main points as all of us know everything else is not within the ICJs mandate.
I am glad Pakistan considered the verdict, a victory of it's stance. This increases possibility of the verdict being honoured; as now Pakistani state will not have to deal with adverse public opinion, while implementation of the verdict.
Well written!Hopefully,both countries act according to prescribed laws,and not to create tense situations
Its time for Indian leadership to show maturity considering all elections drams are over!
Any civilian court will declare a mistrial and release Kulbushan Jhadav. If it is again tried by the military court, no justice will be served!
No sensible person wants to see world moving fast and two neighbors stuck in we 2 era tactics of mutually assured death and destruction.
Very well said.
Well said. We must not forget we are ethnically related and just some 70 years ago we were actually one nation.
at last a well balanced comment ....well said.
Will depend upon whether what follows is really an "effective review and reconsideration" or just an eyewash.
Justice must be served regardless of any allegations. If we can prove he is a spy and have played a part to to destabilize the country or harmed us in any way then surely he deserves to be punished but if there is no evidence then Pakistan should restrict in punishing an innocent guy in the name of Patriotism. A fair trial must be conducted. It will be a big challenge for Pakistan if we are unable to provide any evidence in the fair trial because we already issued his confessional tapes and if we can't provide any evidence that means those confessions will be termed as Forced.
Indian authorities were not the only ones painting one side as a winner.
Can somebody explain me . If ICJ ruling favoured Pakistan position , why Pakistan Judge in the panel opposed the ruling .
Good article.Move on Now please.
A 15-1 verdict clearly pointing gross violation of Vienna convention and yet you guys want to state you have won.In a military controlled environment bitter truth will not be allowed to surface.
The immature one has to move forward with maturity now. Denying consular access so many times was gross immature.
Fact remains and now it stands confirmed on the w o rod stage: He was, is and will remain a spy sent for nefarious purposes by one sovereign state into the other sovereign State. He will remain where he was apprehended, tried and convicted. Nothing changes there. Does it?
@Rohit, Agreed.
A sane voice in stark contrast to the jingoistic TV debates on both sides of the border.
Well done, Dawn.
and what about the judicial process that has to be created in pakistan as per viena convention will that be subverted
@Deepak Talwar, If you knew the other stuff were not in the jurisdiction of the ICJ, then why did India make the plea? So India is trying to joke and fool around? Pakistan is NOT obligated towards any of that ruling. But being a same country it may allow consular access. The remaining is "as Pakistan choses".
@JusticE, The trial was already fair.
@NR, Canada, How was it fair. A verdict without evidence and proper legal representation can not be fair. May be in Pakistan.
punish him in open civil court with proper evidence , if you have to prove that pakistan speaks the truth
@Siyal A, and he was the only one dissenting all others agreed
@NR, Canada, No trial can be fair if it is held in camera and by a military court without providing the accused the help of an attorney. In peace time Natural justice requires ALL trials must be held in open court and due process MUST be followed. Justice must not only done but seems to have been done. If we have so much evidence, what is there to lose?
Well said! Stop this public bickering. Back channel diplomacy should take up from here. Let the gentlemen return to respective countries.
What councilor accesse?? The guy is a spy article 36 does not apply on him the Military court will put him on trial again and he will be executed according the law per land but rather giving him the death sentence hopefully we can come up with some trade and get something in return from him
@Shahidam, If the only proof was the confession then that will be thrown out and he has to be allowed to go free.
@Shahidam, Others here have answered you. There is no proof that he was a spy. That is the reason for all the secrecy. Consular access will expose the truth.
For improving peace and friendship with India, Pakistan should hand over Mr.Jadhav to India on humanitarian grounds.
So many comments and opinions about this subject in the last year or so. Nobody clearly accepts that confession in custody without consular access or attorney is not acceptable evidence in any civilized country
Wishful thinking. There is goodwill gesture here.