Author: Akanksha Jamre, Prestige Institute of Management and Research
BACKGROUND
The Kulbhushan Sudhir Jadhav case relates to an arrest and trial of an Indian national by Pakistan on allegations of terrorism and espionage. Here, the governments of India and Pakistan have taken strong diplomatic and legal responses regarding such issues as the appointment of a trial judge, restriction on consular access, and some public international law violations, such as the VCCR. It was the scenario where the International Court of Justice decided that Pakistan must reconsider the case and provide access to consular officials.
FACTS OF THE CASE
Kulbhushan Jadhav was taken into custody by Pakistan on March 3, 2016, and when he crosses over from Iran and was apprehended in the province of Baluchistan in southern Pakistan on March 24, 2016, Pakistan’s military establishment and law enforcement agencies framed him in a case of spying. Meanwhile, Pakistan also unveiled a video in which Jadhav is said to be confessing to the charges against him.
Pakistan’s foreign minister wrote a letter on 23 January 2017 to the Indian High Commission in Islamabad seeking aid in his criminal prosecution as Indian national Kulbhushan Sudhir Jadhav but he never received any response. On 29 March 2016, India declared that all the charges against Jadhav were baseless since he is a retired naval officer and was illegally abducted from Iran by Pakistan official. Jadhav was also not granted access to the Consular.
16 demands made by New Delhi were cancelled after a year. Kulbhushan Jadhav was given the death sentence by the Pakistani Military Court on April 10, 2017, for “Espionage & Terrorism.” On April 14, 2017, the Indian government not only asked for consular access for Jadhav but also a genuine copy of the charge sheet and the ruling of the Pakistani military court that had sentenced him to death. On May 8, 2017, India lodged a complaint before the International Court of Justice in the Hague, Netherlands on the capital punishment verdict by the Pakistani Military Court on Mr. Jadhav with utmost displeasure over Pakistan’s stance and its refusal to cooperate on giving Consular access to Mr. Jadhav. “Jadhav’s execution was stayed. Only after extensive discussion and debate between Islamabad and New Delhi had Pakistan invited his mother and permitted Mr. Jadhav’s wife to visit “on humanitarian grounds.” They were promised independence and security by the country while they were in India. The short version is that “a Pakistani military court sentenced Jadhav to death for Espionage & Terrorism.” Problems Pakistan accuses Jadhav of spying and engaging in terrorist operations, while India denies the accusations, claiming that Jadhav was abducted and is innocent.
“Denial of Consular Access: India argues that Pakistan denied Jadhav consular access, thus violating the Vienna Convention.”
Bias of the trial: India claims the military trial of Jadhav was neither transparent nor fair, while Pakistan defends it as legal.
Coerced confession: Delhi says that it was a forced confession, but Islamabad argues that the confession was voluntary.
Jurisdiction of ICJ: India said that Pakistan’s argument to the International Court of Justice’s jurisdiction in the case had some substance because the issue in question concerned violations of international law.
Diplomatic tensions: Factors that increase diplomatic tensions between India & Pakistan include the wrongful detention & mistreatment of Jadhav, which is somewhat of a humanitarian concern. The matter has raised diplomatic tensions between India & Pakistan, particularly about national security & cross-border terrorism.
Humanitarian concerns: In fact, India seeks mercy for Jadhav with grounds that he was wrongfully detained & mistreated, & Pakistan has been pressing for his execution on charges of espionage.
ARGUMENTS
Pakistani Objections on Indian Application
Pakistan raised three different kinds of objections against the admissibility of India’s application, related to alleged unlawful activity, alleged abuse of rights, and alleged abuse of process.
In its argument regarding the first grievance of abuse of process, Pakistan submitted that India had totally ignored Jadhav’s constitutional right to request clemency (mercy), which is permissible within 150 days after conviction. “Articles 2 & other dispute settlement mechanisms provided for in Article 2 of the Optional Protocol” were not something India was ready to use.”
The second argument is based on alleged abuse of rights, where Pakistan presents three primary points:
India did not provide evidence to prove that Jadhav is a citizen of this country.
India has not responded to the requests of Pakistan for cooperation in criminal investigations.
ndia has participated in Jadhav’s terrorist and espionage activities in Pakistan. “The third objection was regarding the said unlawful activity of India on which basis Pakistan has relied upon the doctrine of “clean hands” & principles of “ex turpi causa non oritur action.” The court took into considerations all the objections raised and rejected all of them and declared that the application by India is admitted.”
Exceptions sought by Pakistan
However, India’s proposal was accepted when Pakistan’s objections against it were discarded, and Pakistan moved for an exemption under Article 36 of the Vienna Convention on three grounds:
“Overt acts of espionage” fall outside the Vienna Convention.
Under the consular access framework, governments are authorized to make exclusions to the rules while at the same time consular espionage falls under customary international law.
In this case, the element of consular access is governed by the Consular Access Agreement between India and Pakistan signed in the year 2008. The court thoroughly discussed all these factors and stated that nowhere under Article 36 or in any other portion of Vienna Convention does it place a mention of cases of espionage. It therefore held that Article 36 excludes no class of persons, including suspected spies. The Court determined that this issue falls under Article 36 since the VCCR’s preamble provides that “in matters not covered by the provisions of this Convention, customary international law applies” in such circumstance.. Moreover, it further indicated that the 2008 agreement shall not be made to abrogate the obligations set forth in Article 36.
VIOLATION OF ARTICLE 36 VCCR
1. In the name of India, consuls assert that is the rightful law for any detainee held in a foreign country to have direct contact with the people of his own country for justice, which is regulated by what is referred to as consular access.
2. The lawyers also claimed that the consular officers should be allowed to communicate inter alia exchange correspondence and visit their nationals who are detained in other countries or on their territories and granted them unrestricted freedom of communication.
3. Hence, legal representation cannot at any given time be refused because it is one of the fundamental conditions that will ensure that there is a fair trial in the light of international & international humanitarian law.
4. In other words, Pakistan seriously erred with its application to the International Court of Justice and violated the VCCR and ICCPR terms in that: (a) it did not report Mr Jadhav’s arrest promptly and rightly to India; (b) it did not report to the arrested person his rights and available remedies; and (c) it violated India’s inherent right of access to consular assistance as conferred upon them and their consular officers by Article 36 of the VCCR.
REMEDY SOUGHT BY INDIA
From the above analysis, it is obvious that Pakistan flagrantly and grossly violated Article 36 of the Vienna Convention. It is now time to test the relief which India claimed from the ICJ. India had filed exact demands before the Court. It averred that it prayed for a decree and declaration in the nature of mandamus and declaring that Pakistan had gravely contravened Article 36. Some of the declarations India asked the Court to make were as follows
• Claim of restitutio in integrum for India:
• Prevents Pakistan from carrying out the capital punishment and puts an end to the death sentence at once.
• Directing Pakistan to release the convicted Indian national without delay.
The Court was further requested by the Pakistan Council to order Pakistan to release immediately the Indians who had been convicted. The court was also requested by India to set aside the decision of the military court or to order Pakistan to act to rescind the order unless it ordered the release of Jadhav. In fact, India had also requested the ICJ to issue orders directing it to make Jadhav’s confession. It argued that the restoration of status quo is not the appropriate remedy, and relief which India sought can be provided by the Criminal Appellate Tribunal only. Pakistan claims that the best course of action would be to thoroughly review and reevaluate the conviction and sentence. Pakistan further argued that Jadhav had already been granted judicial review and pardon procedures. In fact, Pakistan remarked that when determining whether or not relief should be given, the actions of India and of its citizen, Jadhav, need also to be taken into account.
JUDGEMENT
The Court specifically stated what the appropriate remedies for the case at hand should be after determining that Pakistan had violated Article 36 of the Vienna Convention. First, it ordered that Pakistan inform Jadhav of his rights under Article 36(1 (b)) and allow Indian consular officials to visit Jadhav, as well as provide legal counsel for him. The Court held that in this case, the conviction and sentence of Jadhav should, at the very least, be effectively reviewed and reconsidered. It found the appropriate case under review. It disapproved the procedure of pardon and held that there was remedy not satisfactorily provided; it expressed that proper pardon procedure shall go along with judicial review and revision. This is how the ICJ concluded by putting emphasis: “principles of a fair trial were of fundamental importance for any review & revision”. Pakistan was left to decide how to conduct an efficient review and reconsideration. “A continued stay of execution constitutes an indispensable condition for the effective review & reconsideration of the conviction & sentence of Jadhav,” further explained the ICJ. In fact, the judgment clarified that under Article I of the Optional Protocol, its jurisdiction was only extended to the interpretation or application of the Vienna Convention, and provided no other relief, as sought for by India. Therefore, India argued that conviction and sentence of Jadhav fall within Article 36 of the Vienna Convention and beyond the court’s jurisdiction.
CASE LAWS
The cases which were referred while deciding the Jadhav Case-
LaGrand Case (Germany v. United States, 2001)
“In the LaGrand case, the ICJ ruled that the U.S. violated the Vienna Convention on Consular Relations by failing to inform two German nationals of their consular rights after their arrest, leading to their execution. The Court emphasized that consular access is crucial for fair trial protections & the right to communication with consular officers. This case set a precedent for enforcing consular access rights & for judicial review if violated, which was applied in the Jadhav case.
Avena Case (Mexico v. United States, 2004)
“In Avena, the ICJ ruled that the U.S. violated the Vienna Convention by not informing 52 Mexican nationals of their consular rights when arrested, which affected their right to legal defence. The ICJ ordered the U.S. to review the convictions of those affected & ensure fair trial protections. The case reinforced that failure to grant consular access could lead to the invalidation of a trial & the need for judicial reconsideration, principles upheld in Kulbhushan Jadhav’s case regarding consular access & review of his death sentence.
CONCLUSION
About this issue, there is no question about Pakistan’s intentions. “Pakistan has long been searching for a silver bullet to blame India for Pakistani terror incidents,” as Ambassador Vivek Katju puts it. Even though this miracle solution is artificial, Pakistan has managed to come up with it. The security establishment wants to elongate the “silver bullet” for as long as possible because the Pakistani state is intrinsically security-centric and because of the nature of the Indo-Pakistani relationship. Pakistan will not think twice about influencing the International Court of Justice’s ruling for this reason. This, however, is too early to determine how Pakistan will perceive this particular ruling, and the conditional grant of consular access falls in the same category. Nothing has been lost thus far, and hopes are placed that diplomatic efforts will eventually help both countries settle on the issue at hand.
FAQS
What remedy did India seek from the ICJ?
India asked the ICJ to:
Declare Pakistan in violation of international law.
Order a stay on Jadhav’s execution.
Direct Pakistan to release Jadhav immediately.
Mandate a fair trial with full legal and consular rights.
Set aside the Pakistani military court’s judgment if due process was not followed.
What were the Pakistan’s arguments?
What did Pakistan have to say about the VCCR and espionage? Pakistan contended that espionage participants are not entitled to consular access under the VCCR. The bilateral consular access arrangement between India and Pakistan from 2008 was also mentioned. But according to the ICJ, Article 36 of the VCCR does not bar any group of people, even those who might be accused of spying.
What were the major legal issues raised in the case?
Espionage & terrorism charges: Pakistan accused Jadhav of spying and subversive activities; India denied these claims.
Consular access denial: India maintained that Pakistan violated the VCCR by not allowing Indian officials to meet Jadhav.
Jurisdiction of the ICJ: Pakistan questioned the ICJ’s authority to hear the case, which was ultimately dismissed.
Why did India file a case at the ICJ?
India argued that Pakistan had violated Article 36 of the Vienna Convention on Consular Relations (VCCR) by not informing India of Jadhav’s arrest promptly and by denying him access to Indian consular officials. On these grounds, India sought relief from the ICJ, including a stay on Jadhav’s execution and a review of his military court conviction.
What is Article 36 of the VCCR, and why is it important in this case?
Article 36 of the VCCR guarantees the right of foreign nationals to access consular support when arrested in another country. This includes the right to communication, visits by consular officers, and legal representation. India claimed Pakistan denied these rights to Jadhav, making the arrest and trial a violation of international law.
