ICJ stays execution of Kulbhushan Jadhav

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The Hague/Islamabad

The International Court of Justice (ICJ) on Thursday asked Pakistan to halt the execution of Indian RAW agent Kulbhushan Jadhav until a final decision in the proceedings. International Court of Justice stayed execution of Kulbhushan Jadhav, sentenced to death by a court martial in Pakistan on charges of espionage, terrorism and subversion.
The ICJ in its interim verdict has accepted the Indian petition regarding Kulbhushan Jadhav. The ICJ said Pakistan shall take all measures at its disposal to ensure that Jadhav is not executed pending the final decision in these proceedings and shall inform the court of all the measures taken in the implementation of the present order.
The ICJ rejected the Pakistani stance that ICJ did not enjoy jurisdiction to hear the Indian petition regarding Kulbhushan Jadhav.
The ICJ said the appeal fall in the jurisdiction of ICJ under Vienna Convention.
Judge Abraham stated that the ICJ had prima facie jurisdiction under Article 1 of the Optional Protocol to the Vienna Convention.
“Pakistan shall inform the court of all measures taken in implementation of the present order. The court also decides that, until it has given its final decision, it shall remain seized of the matters which form the subject-matter of this order,” the order stated
According to the judgment, It then turned to the question whether the rights alleged by India are at least plausible and decided in the affirmative.
The court then focused on the issue of the link between the rights claimed and the provisional measures requested, and observed that a link exists between the rights claimed by India and the provisional measures being sought.
The court then examined whether there is a risk of irreparable prejudice and urgency. It considered that the mere fact that Jadhav is under a death sentence and might therefore be executed is sufficient to demonstrate the existence of a risk of irreparable prejudice to the rights claimed by India. The court further observed that Pakistan has indicated that any execution of Jadhav would probably not take place before August 2017. “This means that there is a risk that an execution could take place at any moment thereafter, before the court has given its final decision,” it stated, adding that Pakistan has [also] not given any assurance that Jadhav will not be executed before the court has rendered its final decision. “In those circumstances, the court is satisfied that there is urgency in the present case,” it stated.
“The Court begins by considering whether it has jurisdiction prima facie to hear the case. It recalls that India seeks to ground its jurisdiction in Article I of the Optional Protocol to the Vienna Convention, which provides that the Court has jurisdiction over “[d]isputes arising out of the interpretation or application of the [Vienna] Convention”.
“In this regard, the Court notes that the Parties do indeed appear to have differed, and still differ today, on the question of India’s consular assistance to Mr. Jadhav under the Vienna Convention. It further notes that the acts alleged by India, i.e., the alleged failure by Pakistan to provide the requisite consular notifications with regard to the arrest and detention of Mr. Jadhav, as well as the alleged failure to allow communication and provide access to him, appear to be capable of falling within the scope of the Convention. 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 Court further observes that the existence of a 2008 bilateral Agreement between the Parties on consular relations does not change its conclusion on jurisdiction.
“The Court then turns to the question whether the rights alleged by India are at least plausible. It observes that the rights to consular notification and access between a State and its nationals, as well as the obligations of the detaining State to inform the person concerned without delay of his rights with regard to consular assistance and to allow their exercise, are recognized in Article 36, paragraph 1, of the Vienna Convention, and that India has alleged violations of this provision. In the view of the Court, therefore, it appears that the rights alleged by India are plausible.
“The Court then focuses on the issue of the link between the rights claimed and the provisional measures requested. It considers that the measures requested are aimed at ensuring that the rights contained in Article 36, paragraph 1, of the Vienna Convention, are preserved. Therefore, a link exists between the rights claimed by India and the provisional measures being sought.
“The Court then examines whether there is a risk of irreparable prejudice and urgency. It considers that the mere fact that Mr. Jadhav is under a death sentence and might therefore be executed is sufficient to demonstrate the existence of a risk of irreparable prejudice to the rights claimed by India.
“The Court further observes that Pakistan has indicated that any execution of Mr. Jadhav would probably not take place before the month of August 2017. This means that there is a risk that an execution could take place at any moment thereafter, before the Court has given its final decision in the case.
“The Court also notes that Pakistan has given no assurance that Mr. Jadhav will not be executed before the Court has rendered its final decision. In those circumstances, the Court is satisfied that there is urgency in the present case.
“The Court concludes by indicating the following measures: “Pakistan shall take all measures at its disposal to ensure that Mr. Jadhav is not executed pending the final decision in these proceedings and shall inform the Court of all the measures taken in implementation of the present Order.
“The Court also decides that, until it has given its final decision, it shall remain seised of the matters which form the subject-matter of this Order.”
Meanwhile after the order was announced, Attorney General of Pakistan Ashtar Ausaf Ali has said that International Court of Justice’s decision has not changed the status of Commander Kulbhushan Jadhav’s case in any manner.
“As far as Pakistan is concerned, the Court’s decision Thursday has not changed the status of Commander Jadhav’s case in any manner. In our submissions on 15 May, we had assured the Court unambiguously that Commander Jadhav would be provided every opportunity and remedy available under the law to defend his case,” the Attorney General said in a statement. He said India has no substance in the case.
“We are confident that India would not be able to hide the subversive activities it is trying to carry out through its agents like Commander Jadhav. India has no substance in the case,” he said.
“Commander Jadhav still has ample time to petition for clemency. To recall, we had in our presentation on 15 May, proposed to the court that a final hearing be held on the merits and maintainability of the case as early as possible. We are determined to pursue this case to its logical end.”
“In today’s interim order, the International Court of Justice (ICJ) has stated that by way of provisional measures, the status quo be maintained in the case of Commander Jadhav.
“The Court has clearly underscored that the provisional measures are without prejudice to the final determination of the merits and jurisdiction of the case.
“The provisional measures are a procedural process only to enable the Court to have full consideration at a later hearing. These measures have no bearing whatsoever on the final decision of the Court.”
He said Pakistan attended the hearing out of its utmost respect for the Court and pursuant to the established jurisprudence that the challenge to jurisdiction can be made via appearance and not by abstaining from the process.
In addition, Pakistan attended because of its conviction that the only way to resolve all outstanding issues is through peaceful means. The statement said we are confident that India would not be able to hide the subversive activities it is trying to carry out through its agents like Commander Jadhav.
Meanwhile following the judgment, Foreign Office Spokesperson Muhammad Nafees Zakaria stated that Pakistan had challenged the authority of the ICJ after consulting with all institutions and agencies.
Talking to official media, Nafees Zakaria says India has been trying to hide its real face by taking the case of Kulbhushan Yadav to ICJ. He said real face of the India will be exposed before the world.
He said Indian spy confessed his crimes of sabotage, terrorism and subversion not only once but twice. Nafees Zakaria said Pakistan will present solid evidence against the Indian spy in the International Court.—SABAH