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In a major victory for India, the International Court of Justice (ICJ) has held that Pakistan violated Article 36 of the Vienna Convention on Consular Relations in its treatment of Kulbhushan Jadhav, and consequently ordered that it needs to conduct an “effective review and reconsideration” of his conviction and death sentence for espionage and terrorism offences.
The court has also expressly said that a continued stay on Jadhav’s execution is essential till the process is completed, as it is “an indispensable condition for the effective review and reconsideration of the conviction and sentence”.
In May 2017, the ICJ had passed an order on provisional measures, requesting Pakistan to ensure the death sentence handed down to him by its military courts was not carried out till it had made a final decision.
ICJ president Abdulqawi Ahmed Yusuf announced the judgment on Wednesday, 17 July. While the court comprehensively ruled in India’s favour on merits, it did not grant India’s request for Jadhav’s conviction to be annulled and for him to be sent back to India, as it was not the conviction and sentence that violated the Vienna Convention, but the process for the same – ie, the lack of consular access.
Here are highlights of the judgment and the key takeaways from it for India.
The Key Findings
JURISDICTION AND ADMISSIBILITY
- Pakistan and India are both bound by the Vienna Convention on Consular Relations 1963 (VCCR). The court had jurisdiction over this case because of the Optional Protocol to the VCCR, which allows for settlement of disputes under the treaty at the ICJ.
- Pakistan’s objections to the admissibility of the case were irrelevant, and India had not abused its procedural rights by asking for provisional measures back in 2017 (as a result of which Jadhav’s execution was stayed at the time).
VIOLATION OF VIENNA CONVENTION ON CONSULAR RELATIONS
The court could only consider whether or not Pakistan had violated the VCCR, not other aspects of international law.
However, Pakistan had violated Article 36 of the VCCR in three ways.
- First, it failed to inform Jadhav of his consular rights upon his arrest on 3 March 2016, which should have been done without delay.
- Secondly, it only informed India of his arrest 22 days after his arrest (25 March 2016), even though it was obliged to inform India of this “without undue delay”.
- Thirdly, it failed to provide India with consular access to Jadhav despite multiple requests by India since 25 March 2016, which it was obliged to do, so that Indian consular officers could assist him, including with legal representation.
EXPLAINED: ARTICLE 36, VIENNA CONVENTION ON CONSULAR RELATIONS
Article 36(1)(b) of the VCCR states that if a foreign national of Country A is arrested in Country B, Country B needs to inform the foreign national of his rights under the VCCR without delay, including informing the consular authorities of Country A and get help from them.
If the foreign national requests, Country B needs to inform the consular post of Country A (its embassy, high commission, etc) that they have arrested/detained a national of Country A without undue delay.
Article 36(1)(c) states that consular officers of Country A have a right to visit nationals from Country A that have been arrested or detained in any other country, and shall also have the right to arrange for legal aid for them.
REJECTION OF PAKISTAN’S JUSTIFICATIONS
Pakistan had attempted to defend its failure to inform Jadhav of his rights and to provide consular access to Jadhav on two grounds, both of which were rejected by the court.
- First, they argued that there is an exception to the right to consular access in cases where the foreign national is accused of being a spy. The court held that no such exception could be found in the text of Article 36, nor did the discussions at the time of its drafting by the International Law Commission indicate they believed such an exception existed.
- Although a 2008 bilateral agreement between India and Pakistan considered such cases could be dealt with by the countries on a case-to-case basis after considering political/security implications, the court held that this agreement only supplemented the VCCR, and couldn’t substitute obligations under Article 36.
- The court also said there was no need to look into a separate exception under customary international law (as Pakistan had argued) as after the VCCR came into force in 1963, customary international law only applied to things not expressly covered under the treaty.
- Secondly, Pakistan had argued that India had not complied with requests for assistance in investigating the allegations against Jadhav – a key issue was the authentic Indian passport that Jadhav had in his possession which was under a fake Muslim name.
- The court, however, said that “the alleged failure by India to cooperate in the investigation process in Pakistan does not relieve the country of its obligation to grant consular access... and does not justify Pakistan’s denial of access to Jadhav by consular officers of India.”
REMEDY: EFFECTIVE REVIEW AND RECONSIDERATION
- The court held that the basis for remedies in this case was restitutio in integrum, ie, restoring the injured parties to the situation they would have been in if the violation of international law had never taken place.
- This meant Jadhav had to be informed of his rights, and India had to be granted consular access to him.
- Even if Pakistan had complied with its obligations under Article 36, this would not necessarily have meant that Jadhav would be acquitted or released. The conviction and sentence themselves were not a violation of the law, so these could not be annulled as India had requested.
- Instead, effective review and reconsideration of the conviction and sentence were the appropriate remedy here (along with the granting of consular access).
NOTE: Apart from the ruling on jurisdiction, all other findings of the court were by a 15:1 decision. The ICJ is comprised 15 judges from countries party to the ICJ Statute. Justice Dalveer Bhandari from India is one of these, so the court agreed to appoint an ad hoc judge of Pakistan’s choosing to ensure there was balance, which is why 16 judges decided this case.
Takeaways for India
Is Pakistan bound to follow ICJ’s verdict?
Decisions of the ICJ are binding on the parties to those cases. Thus, Pakistan is technically bound to follow the verdict of the ICJ, and any failure to do so would provide grounds to approach the ICJ again, as well as other United Nations bodies.
For enforcement of an ICJ decision to be effective, of course, this would require the Security Council to be willing to back it up. The USA has notoriously refused to comply with directives of the ICJ (including in the Avena and LaGrand cases that related to their violations of consular access) because it knows that it can always veto any action against them.
However, Pakistan does not have the same power or international standing, and would need to comply with the court’s orders, including staying Jadhav’s execution and providing an effective review of his conviction and sentence.
What exactly will Pakistan need to do to ensure effective review and reconsideration?
The ICJ does not normally provide step-by-step instructions to sovereign nations, and refrained from doing so in this case as well.
However, its discussion in paragraphs 137 to 147 does lay down some conditions that Pakistan needs to fulfil. The court clarified that the clemency petitions filed by Jadhav would not count as effective review and reconsideration, and some judicial process in the courts would need to take place, even if this required Pakistan to pass new legislation.
The court also specified that any prejudice to Jadhav’s case arising out of Pakistan’s earlier failure to provide consular access and information of his consular rights, has to be effectively addressed in the review process. This should mean that the confessions extracted by Pakistan from him should either be inadmissible or at least not conclusive (see para 145 below).
This should certainly help Jadhav get a more lenient sentence, even if not an acquittal.
What can India do to ensure that Pakistan complies with the ICJ’s judgment?
India must now utilise the consular access it should get from Pakistan to ensure it fully advises Jadhav of all his rights and defences (including the stay on his death sentence), and also get full clarity from Pakistan about the review process to be followed.
They must then pull out all the stops in ensuring he has the best lawyers possible to defend his case.
If Pakistan takes too long in providing consular access, India should file an application with the ICJ, notifying them of the delay, and should also notify the UN Security Council about the same. Any deficiencies in the access provided should also be objected to immediately.
The review process may take some time given Pakistan’s high courts and Supreme Court have limited rights of review over decisions of the military courts, as the ICJ identified. The ICJ has, of course, said this would need to be rectified by legislation if necessary, which would mean further delays.
The key thing to watch out for is that the stay on execution is respected and that no measures are taken by Pakistan which could affect this. Any potential steps towards Jadhav’s execution can be the basis for a fresh case in the ICJ (including provisional measures) as well as an approach to the UN.
Can Pakistan appeal this judgment?
No. There is no appeals process in the ICJ.
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