By Abeer Tiwari, Shivansh
In March 2016 Pakistan arrested Kulbhushan Jadhav, an Indian national and retired Indian navy officer. He was charged with terrorism and espionage for Research and Analysis Wing (RAW), the Indian intelligence agency. He was subsequently sentenced to death in April 2017 by a military court in Pakistan following which India approached the International Court of Justice (ICJ) to seek a stay on the death sentence and consular access to Kulbhushan Jadhav.
Indian representative to ICJ, Harish Salve argued that Pakistan has been involved in “egregious breach” of international conventions and treaties. Invoking the Vienna Convention on Consular Relations (VCCR) and the International Covenant on Civil and Political Rights (ICCPR), Indian representatives argued that the death sentence and the ruling by the military court in Pakistan violate international covenants and hence must be challenged.
In this article, we will explore the most important politico-legal developments in the Kulbhushan Jadhav case.
Military court ruling and ICJ
Kulbhushan Jadhav was arrested on 3 March 2016 and on 24 March, the Pakistan security forces announced that Jadhav, an ‘Indian spy’ has been arrested for spying from south Balochistan. The Indian envoy was summoned the next day however India denied any claims of espionage. On 29 March, India requested consular access to Jadhav. Importantly, India made about 16 such requests for Islamabad consular access over the course of one year. These requests were rejected.
On 10 April 2017, a military court in Pakistan sentenced Jadhav to death. Jadhav was alleged to have been involved in acts of espionage as well as sabotage activities and terrorism. Throughout the month of April, India made several appeals to request Islamabad for certified copies of charge sheets filed against Jadhav, the military court judgement, as well as appeals for copies of court proceedings. Consular access was also demanded. Appeal request was also made officially on 20 April. Sushma Swaraj, the then External Affairs minister, wrote to request a visa for family members of Jadhav. These requests were denied.
On 8 May 2017, India approached the International Court of Justice (ICJ) at the Hague. On 9 May 2017, the court ordered a stay on the execution. Indian Ministry of External Affairs (MEA) argued that Jadhav has been kept in illegal detention.
When India approached the ICJ, it argued that the military court ruling is a breach of article 36 of VCCR. Under this, Jadhav had a right to be informed about the arrest and a right to have consular authorities informed about the arrest without delay. India requested the court to order Pakistan to not act in a hasty manner that may prejudice its rights and requested a stay on the order as well as report all actions taken with reference to Jadhav’s arrest.
Since India and Pakistan have both ratified the Optional Protocol that allows compulsory jurisdiction upon court to examine disputes related to application and interpretation of VCCR, India’s claim was that the Court had the necessary authority to examine whether international law has been followed and also to order reparations if any breach has taken place. The Court could examine due process standards followed by Pakistan under article 14 of ICCPR.
Pakistan claimed that India did not have any substantial grounds to approach the ICJ. This is because India’s claim at the ICJ is an abuse of process, since the parties can approach the Court only when all methods have been exhausted. India had also refused to cooperate in the criminal investigation. The passport obtained from Jadhav had his alias “Hussein Mubarak Patel” and there was no real proof brought forth by India that Jadhav was an Indian national. Pakistan also argued that since India had breached its own obligations, the action taken by Pakistan was a consequence of the same.
These arguments were rejected by the Court. The Court observed that the right to approach the Court under the Optional Protocol is unconditional and recourse to substitute mechanisms is not a prerequisite. It was also established that the prior conduct of Pakistan had clearly shown that Pakistan had treated Jadhav as an Indian national. There is no abuse of due process involved.
Pakistan also has an obligation to show India’s breach of obligation is obstructing Pakistan from carrying out its own due process of following international law.
Breaches of due process ?
While Pakistan claimed that all due process was followed, there are several relevant facts to look into.
Firstly, the military court ruling was held in secrecy. Those who are being tried are not given access to proper defense mechanisms, are detained in undisclosed locations and not given access to the relevant documents.
Secondly, the claims about espionage and sabotage and the death sentence itself are based on one main piece of evidence - the confessional video by Jadhav. It is not known in which conditions and situations such a confession was retrieved. It is not uncommon to get confessions by torture or coercion.
Thirdly, the article 14 of the ICCPR states that every accused has a right to appeal his sentence. In addition, the military tribunal court in Pakistan has the power to review the decisions made by the army courts especially in matters of death sentence. While several appeal petitions were made in the court, these were rejected despite clear evidence that the court ruling had not followed due process and breached several international standards.
The court ruled in India’s favour and put a stay order to Jadhav’s death sentence. Now there are certain things to take note of. The ICJ, irrespective of the Jadhav case did mention the fact that the redressal system prelevant at the International level is flawed. The court mentions that the future looks upon the reformation of the International Dispute Redressal System at the International level of such a fashion that didn’t compromise the dignity of the parties coming to the ICJ.