The International Court of Justice on Wednesday concluded that Pakistan had violated the Vienna Convention in its treatment of Kulbhushan Jadhav, a former Indian Navy officer who had been sentenced to death for espionage by a Pakistani military court.
Finding that Pakistan had breached international law by not giving consular access, the court ordered Islamabad not to execute Jadhav. However, the ICJ also rejected India’s demands for Jadhav to be released, and said instead that Pakistan would have to decide how to review the trial and conviction of the Indian.
The decisions were overwhelmingly in favour of India on most counts, with 15 of the 16 judges on the court concluding that Pakistan violated the Convention. The only dissenting vote came from Tassaduq Hussain Jillani, an ad-hoc Pakistani judge who was placed on the bench, since it already included an Indian judge.
Breached convention
Jadhav is an Indian citizen who is on death row in Pakistan. Pakistan has claimed that Jadhav had been spying for India’s Research and Analysis Wing when he was caught in 2016 – a claim that India denies. India, which rarely approaches international forums for justice, had decided to approach the ICJ in this matter, asking for a review of Pakistan’s treatment of Jadhav which it claimed was illegal.
In its judgment, the court first decided that it had clear jurisdiction in the matter, despite Pakistan’s objections. It also found that the treatment of Jadhav was in contravention of the Vienna Convention, which both countries are party to. Since this treatment breached international law, the court said Pakistan would now have to review and reconsider the case against Jadhav.
It added that Pakistan must not execute Jadhav before that, calling this an “indispensible condition” for the review and reconsideration of the case.
While the court concluded that Pakistan had violated international norms, it also rejected most of the remedies sought by India, including the annulment of military court decision convicting Jadhav and a demand for him to be released to India.
“With regard to India’s contention that it is entitled to restitutio in integrum and its request to annul the decision of the military court and to restrain Pakistan from giving effect to the sentence or conviction, and its further request to direct Pakistan to take steps to annul the decision of the military court, to release Mr. Jadhav and to facilitate his safe passage to India, the Court reiterates that 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 judgement said.
India had contended before the Hague court that disallowing consular access is a violation of the Vienna Convention on Consular Relations, Article 36 of which says that consular officers have the right to visit a national of their country who is detained or taken into custody in on foreign shores “to converse and correspond with him and to arrange for his legal representation”.
India maintains that Jadhav, a former naval officer, was working on his private business in Iran when he was kidnapped by Pakistan. Pakistan has repeatedly denied India access to Jadhav. The latest was on April 6 when Pakistan said India’s request for consular access to Jadhav was “not appropriate” at this point because a verdict on his case is pending at the International Court of Justice.
On February 20, India had delivered its final arguments in the case before ICJ. Indian counsel Harish Salve had said that Jadhav has become a pawn in Pakistan tool to divert international scrutiny from itself. He then referred to the terror attack in Pulwama on February 14 that killed at least 40 CRPF personnel.
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