INTERNATIONAL Court of Justice (ICJ) at The Hague announced its verdict in the Kalbhushan Jhadav case on 17 July rejecting Indian plea for annulment of the military court decision awarding death sentence to him, ordering his release and repatriation to India. The decision undoubtedly represents a legal and diplomatic triumph for Pakistan and indicates how well the case was contested under the given circumstances.
Kalbhushan Sudhir Jhadav a serving commander in the Indian Navy was arrested on March 3, 2016 in Balochistan while crossing over from Iran in a counter-intelligence operation. He was found in possession of a valid Indian passport with a fake name of Hussain Mubarak. During investigation Jhadav confessed that Indian intelligence agency RAW was involved in destabilizing Pakistan and he was a serving officer of the Indian Navy working in Pakistan at its behest. He also acknowledged that he launched a covert operation against Pakistan from the Iranian port of Chahbahar for which he used to get instructions from Joint Secretary of RAW Anil Gupta. According to him RAW had been funding the Baloch separatists for carrying out their insurgency operations. Kalbhushan also admitted that he had been directing various activities in Karachi and Balochistan on directions from RAW since 2013 and had a role in the deteriorating law and order situation in Karachi.
In the light of his confession he was tried in a military court where he was provided with the required legal assistance. However having found him guilty of the charges against him, the Field General Court Martial awarded him death sentence on 10 April 2017. During that period India had been asking for consular access to Kalbhushan in the light of the Vienna Convention which was denied as Pakistan felt that it was not applicable in the cases of spies. However on humanitarian grounds it allowed the mother and wife of the Indian spy to meet him at the Ministry of Foreign Affairs in Islamabad.
In May 2017, India approached the International Court of Justice (ICJ), asserting that Pakistani authorities were denying India its right of consular access to Jadhav in violation of Vienna Convention on Consular Relations 1963 also pleading for the court to quash the sentence, secure Jhadav’s release and repatriation to India. The ICJ proceedings began in The Hague on 15 May to review the case. India and Pakistan both sent their legal teams to put forward their arguments. On 18 May 2017, the ICJ stayed the hanging of Jadhav. After the halting of the execution by ICJ, India made two written submissions to the ICJ and Pakistan accordingly gave rejoinders to them. The final hearing of the case was held on 18-21 February 2019.
In its submissions to the ICJ and rejoinders to the Indian stance, Pakistan maintained that consular access stipulated in the Vienna Convention was not obligatory in such criminal cases and also quoted Agreement on Consular Access dated 21 May 2008 between the two countries which allowed each state to consider a request for consular access on its merit in a case involving national security. Pakistan also made mention of Customary International Law to reinforce her argument regarding denial of consular access to Jhadav. In response to the Indian plea to the ICJ to annul the punishment awarded to Kalbhushan Jhadav Pakistan referred to previous decisions concerning death sentences imposed by USA in similar cases in which 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.
Though in the verdict given by ICJ it has not accepted Pakistan’s view on consular access but its take on conviction and remedial mechanism as pointed out by Pakistan has been duly upheld. The ICJ said that even though it had found Pakistan in violation of article 36 of the Vienna Convention on Consular Relations “it is not the conviction and sentence of Mr.Jhadav which are to be regarded as violation of Article 36 of the Vienna Convention”. The court noted that Pakistan had acknowledged that the appropriate remedy in the present case would be effective review and reconsideration of the conviction and sentence. The effective review and reconsideration of the case ordered by the court under the Pakistani law quoting Peshawar High Court decision regarding review on sentences awarded by the military courts is in conformity with the stand taken by Pakistan.
The court has also ordered suspension of the death sentence till the completion of that review process by the courts of law in Pakistan which is also allowed by our law and the constitution. As is evident the substantive part of the verdict upholds and corroborates Pakistani position in regards to the procedure adopted for trying Kalbhushan and the legitimacy of the sentence awarded to him. Indian media and government may interpret the ICJ order asking Pakistan to accord immediate consular access to Jhadav as well as the order regarding notifying him his right to review of the sentence as their victory but the fact remains that it has received a rebuke from the court on the issue of annulment of the sentence and release of Kalbhushan. The review will be made by the Pakistani courts in accordance with the law and the ICJ will have nothing to do in case the Pakistani courts also uphold the sentence awarded to him by the military court or order otherwise. The Foreign Minister of Pakistan Shah Mahmood Qureshi is right on money to say that the ICJ verdict is a victory for the country.
The verdict of ICJ is also reflective of its faith in the justice system of Pakistan. It is noteworthy that the Court has neither disputed Pakistani claim of Kalbhushan being an Indian spy and his involvement in the acts of terrorism within Pakistan at the behest of the Indian intelligence RAW and support to insurgents in Balochistan nor accepted the Indian plea that his trial in the military court was unfair. Looked from another perspective it is also affirmation of Indian involvement in state-sponsored terrorism.
— The writer is freelance columnist based in Islamabad.