INTERNATIONAL Court of Justice (ICJ) is all set to announce its decision today in the case of Kulbhushan Jadhav, who is an active Service Commander (equivalent of Lieutenant Colonel) of Indian Navy and working for India’s Research and Analysis Wing (RAW). Jadhav was arrested on March 3, 2016, from Balochistan. In his subsequent trial at a Field General Court Martial (FGCM), Kulbhushan had confessed to his involvement in hatching terror plots against Pakistan. He was sentenced to death by the FGCM in April 2017, on charges of espionage. India approached the ICJ in May 2017 against Pakistan for denying consular access to Commander Jadhav in line with Vienna Convention on Consular Relations 1963. India had also challenged the “farcical trial” by the military court of Pakistan. As immediate relief to India, the ICJ had restrained Pakistan from executing Commander Jadhav till adjudication of the case.
India based its case on two broad issues— breach of Vienna Convention on consular access and the process of resolution. Pakistan had rejected India’s plea for Consular access, because that New Delhi wanted to get the consular access for its spy. Earlier in five cases requesting Consular access, the ICJ has given Consular access to the applicant state; but it is the first case in which the ICJ will determine whether or not a spy should be given Consular access. Indian is the first country in the 60 years history of ICJ that has demanded such a concession from the court in the light of Vienna Convention.
India has also urged the ICJ to cancel Jadhav’s death sentence and order his immediate release, saying the verdict by a Pakistani military court was based on a “farcical case” and it failed to satisfy even the minimum standards of due process. India maintains that Jadhav was kidnapped from Iran where he had business interests after retiring from the Navy. Pakistan on its part insisted that the Indian Navy officer was a spy and not a businessman. Pakistan reported that its security forces had arrested Commander Jadhav from Pakistan’s Balochistan province on March 3, 2016 after he entered from Iran. On the question of legality of trial, ICJ has repeatedly adjudicated that it is not a Criminal Court of Appeal and effective review of a conviction is available before the respective domestic courts.
The legal experts opine that ICJ will reject India’s plea to release Kulbhushan Jadhav. However, his conviction may be set aside and he may be allowed consular access. The verdict is likely to be a victory for Pakistan in the sense that the relief, if any, is likely to be limited to granting consular access. However, Indian media has raised expectations at their end to the extent that their public is expecting an acquittal, which is quite unlikely if not impossible.
Counsel Khawar Qureshi argued on behalf of Pakistan while Harish Salve gave oral submission on behalf of India. During the hearing, India could not explain why Jadhav possessed two passports. India argued that Commander Jadhav is an innocent businessman who was kidnapped from Iran, brought to Pakistan and tortured to confess that he was a Commander in the Indian Navy and working for RAW. India argued that it was entitled to obtain consular access to Jadhav as soon as his detention was made public by Pakistan. India also argued that the trial and conviction of Jadhav for espionage and terrorism offences by a military court was ‘a farce’. It contended that the denial of consular access to Jadhav requires the ICJ to ‘at least’ order his acquittal, release and return to India. In its written pleadings, India had accused Pakistan of violating the Vienna Convention by not giving consular access to Jadhav, arguing that the convention did not say that such access would not be available to an individual arrested on espionage charges. Pakistan rejected all of the Indian allegations. It argued that evidence obtained from Jadhav after his arrest and during the criminal process leading to his conviction was amply demonstrating his activities in fomenting terrorism and engaging in espionage within Pakistan. Islamabad maintained that it would be incompatible with international law for someone sent as a spy/terrorist by a state to be afforded access to officials of that state.
Pakistan has also pointed out to ICJ that in its previous decisions concerning Article 36 of the Vienna Convention (which involved death sentences imposed by the US), the court had made it clear that it was not a court of criminal appeal and the presence of ‘effective review and reconsideration’ by domestic courts was an appropriate remedy, even if a breach of the right to consular access had been established. In Pakistan the High Courts and the Supreme Court provide such review as acknowledged by the leading UK-based military law experts.
Pakistan has also referred to an express Agreement on Consular Access dated 21 May 2008, between India and Pakistan, which allows each state to consider a request for consular access ‘on its merits’ in a case involving national security. Pakistan has pointed out that Jadhav was provided with an authentic Indian passport under a Muslim name by the Indian authorities which served as a clear and obvious link between his conduct and the government of India. Such conduct is a blatant violation of international law and should bar any claim for relief from a court. Interestingly. India refused to reply on this issue and [unconvincingly] describes it as “mischievous propaganda”. One cannot prejudge the upcoming verdict, the decision could be in favour of Pakistan, in favour of India or it may be a middle of the course outcome. Nonetheless, in all likelihood, Pakistan would respect the decision and abide by it.
—The writer is a freelance columnist based in Islamabad.