Bharat SainiLast Updated on June 18, 2017 by Bharat Saini
International Court of Justice (ICJ) has communicated to the Pakistani government on 9 May, 2017; an acceptance of provisional relief that India had requested in instituting proceedings against Pakistan at the ICJ requesting the ICJ, inter alia, to suspend the death sentence awarded to Kulbhushan Jadhav; to declare that the sentence of the Pakistani military court violated the provisions of the Vienna Convention on Consular Relations, 1963 and the International Covenant on Civil and Political Rights, 1966; to restrain Pakistan from enforcing the sentence, and direct Pakistan to take steps to annul the decision of the military court.
The details of the ongoing case that snowballed into a flash point for India-Pakistan relations are as under:
- Pakistan claims its security forces had arrested Jadhav from the restive Balochistan province on March 3, 2016 after he reportedly entered from Iran; whereas the Indian government believes he was kidnapped in Iran and brought forcibly into Pakistan to try and implicate India with allegations of espionage and terrorism.
- He was on a routine business trip to Iran when he was abducted by Pakistani Intelligence. Reports say he was captured by the Taliban and later sold to Pakistan Army.
- Pakistan also claimed that he was a serving officer in the Indian Navy, whereas Indian government maintained that Jadhav had retired from the Navy in 2001, established a small business in the Chabahar Free Trade Zone in Iran, where he reportedly operated a mechanised dhow named
- Jadhav burst onto the national and international limelight a few weeks later, when Pakistan announced the arrest of an alleged, India’s external intelligence agency, Research and Analysis Wing (R&AW) spy in the restive Balochistan province, at a press conference in Islamabad.
- Jadhav was subsequently sentenced to death in a Field General Court Martial on April 10, 2017 after three-and-a-half months of trial. He has been accused of espionage and working R&AW. Army chief Gen Qamar Javed Bajwa confirmed the death sentence.
- India has rejected the espionage charges levelled against Jadhav and said that if the death sentence is carried out, New Delhi would consider it as a premeditated murder.
- India has been repeatedly requesting consular access to Jadhav while also demanding a certified copy of the charge sheet as well as the judgment. Pakistan has denied India’s request 16 times, and has not even informed India about Jadhav’s physical well being and location.
- Terming the death sentence and the process adopted by Pakistan as a “contravention of international law; India had no other legal option but to approach the International Court of Justice (ICJ) to get reprieve for Kulbhushan Jadhav as all other legal means in Pakistan to save him had dried up.
- On 8 May 2017, the Republic of India instituted proceedings against the Islamic Republic of Pakistan, accusing the latter of “egregious violations of the Vienna Convention on Consular Relations” (hereinafter the “Vienna Convention”) in the matter of the detention and trial of an Indian national, Kulbhushan Sudhir Jadhav, sentenced to death by a military court in Pakistan.
- India requested ICJ for provisional measures pending the final judgment of the ICJ. Among other things, India requested for Pakistan to ensure that Jadhav was not executed.
- ICJ president Judge Ronny Abraham of France has written to the Pakistani government on 9 May “calling upon” the Government of Pakistan “to act in such a way as will enable any order the court may make on this request to have its appropriate effects” pending the court’s decision on India’s request for the indication of provisional measures under Article 74, paragraph 4 of the Rules of the Court, 1978.
- India has obtained a reprieve for Kulbhushan Jadhav from the International Court of Justice (ICJ). ICJ, which deals with international law involving states and not individual cases, has been seized with India’s complaint that in Jadhav’s case Pakistan has violated Article 36 of the Geneva Convention on Consular Relations. India’s repeated demands for consular access to Jadhav had been refused by Pakistan.
- Pakistan has also been charged with violating Article 14 of the 1966 International Covenant on Civil and Political Rights that protects the elementary human rights of an accused. The president of ICJ has ordered the Pakistan government to effectively not to hang Jadhav pending an examination of the merits of India’s petition. Law apart, this ruling delivers a huge political blow to Pakistan, especially its military.
According to a Dunya News report, Pakistan is going to deny the jurisdiction of the International Court of Justice (ICJ) in Kulbhushan Jadhav case, an Indian national whom Pakistan has sentenced to death alleging espionage and sabotage in Pakistan. According to the report, the briefing states, “Pakistan does not accept International Court’s jurisdiction to order the state in issue that involves its national stability.”
Such communications under Article 74 of the ICJ Rules are binding orders that can create obligations on countries. But orders/judgments have to be passed by the court and not the president alone, pursuant to the ICJ Statute. ICJ president merely exercises discretionary power pending the meeting of the court to decide the questions related to provisional measures to prevent any adverse actions by countries.
This may be a diplomatic win, but it cannot be shown as a legal success; and cannot be equated to “provisional measures”. This communication merely exhorts Pakistan to stay the execution; and Pakistan is still not legally obliged to do so. Pakistan will, however, bristle at ICJ’s communication, which it cannot defy easily without attracting international criticism.
The International Court of Justice (ICJ) is the principal judicial organ of the United Nations. It was established by the United Nations Charter in June 1945 and began its activities in April 1946. The seat of the Court is at the Peace Palace in The Hague (Netherlands). Of the six principal organs of the United Nations, it is the only one not located in New York. The Court has a twofold role: first, to settle, in accordance with international law, legal disputes submitted to it by States (its judgments have binding force and are without appeal for the parties concerned); and, second, to give advisory opinions on legal questions referred to it by duly authorized United Nations organs and agencies of the system.
