DH Deciphers - Will Kulbhushan Jadhav walk free?

The International Court of Justice (ICJ) – the principal judicial organ of the United Nations – will deliver its judgement in the Kulbhushan Jadhav case. Will India be able to save him from death in Pakistan?

Who is Kulbhushan Jadhav?

Kulbhushan Jadhav is a retired officer of the Indian Navy. India says that he was residing in Iran after his retirement and was doing business in the West Asian nation. New Delhi alleges that the Pakistan Army kidnapped him from Iran and later staged his arrest at Balochistan in Pakistan. Islamabad claims that he is a serving officer of the Indian Navy and has been working for India's external espionage agency Research and Analytical Wing (RAW). It also claims that he was carrying a passport issued by Government of India to “Hussain Mubarak Patel” when he was arrested by Pakistan Army from Balochistan March 3, 2016. Islamabad on March 25, 2016, made public what it claimed to be a "confession video" of Jadhav, with him admitting on camera that he had been working for the RAW of India and "involved in crimes of espionage and terrorism directed toward the infrastructure and people of Pakistan". New Delhi dismissed the "confession" as one made under duress and the video as propaganda by Islamabad. A court of Pakistan Army awarded him death sentence on April 10, 2017.

Why and when did India move the International Court of Justice?

Pakistan notified India about the arrest of Jadhav on March 25, 2016 – about three weeks after its army actually arrested him. Article 36 of the Vienna Convention of Consular Relations 1963 required Pakistan to notify India about the arrest “without delay”. It also required Pakistan to allow consular officials of High Commission of India in Islamabad to visit him, freely converse and correspond with him and to arrange for his legal representation. Pakistan, however, turned down repeated requests by India for consular access to the incarcerated Indian Navy officer. India moved the International Court of Justice (ICJ) – a principal judicial organ of the United Nations – on May 8, 2017, accusing Pakistan of “egregious violation” of the Vienna Convention. The ICJ on May 18, 2017, indicated provisional measures as requested by India and passed an order asking Pakistan not to carry out the death sentence awarded to Jadhav. India and Pakistan submitted written pleadings to the ICJ in 2017 and 2018. The ICJ held the public hearing on the case at its seat in Peace Palace in The Hague from February 18 to 21 this year and is now set to deliver its judgment on Wednesday (July 17, 2019).

What does India want the ICJ to do?

India urged the ICJ to “adjudge and declare” that Pakistan had violated Article 36 of the Vienna Convention, 1963, by declining its request for consular access to Jadhav. It also urged the ICJ to declare that Jadav's trial by the Military Court of Pakistan was “in brazen defiance” of the Vienna Convention as well as his elementary human rights as mandated under Article 14 of the 1966 International Covenant on Civil and Political Rights (ICCPR).

India argued before the ICJ that Pakistan's military courts were farcical and were set up after 2015 as an instrument for the military to engage in summary trials. They are responsible for several death sentences after April 2017. Jadhav was denied the right to be defended by a legal counsel of his choice. His conviction and death sentence is based on “confessions” taken in captivity.

India also argued for annulment of the decision of the Military Court of Pakistan and restrain Pakistan Government from implementing the sentence or conviction in any manner. New Delhi also asked the ICJ to ask Pakistan Government either to release Jadhav and ensure his safe passage to India or to conduct a re-trial under the ordinary law before civilian courts “after excluding his confession that was recorded without affording consular access” and “in strict conformity with the provisions of the ICCPR” after giving High Commission of India in Islamabad “full consular access” to him in accordance with the Vienna Convention as well as allowing it to arrange lawyers for him.

What does Pakistan want the ICJ to do?

Pakistan argued that it did not give India consular access to Jadhav as would have been incompatible with international law for someone sent to a country as a spy or terrorist by a different to be afforded access to officials of the country he had been working for. Pakistan also claimed that it had inked with India an express Agreement on Consular Access on May 21, 2008, between India and Pakistan, which allowed each state to consider a request for consular access by the other state “on its merits” if the case involved national security. India, however, asserted that its bilateral agreement on consular access with Pakistan did not jettison the Vienna Convention. Pakistan also underlined that the ICJ had in all the previous decisions concerning Article 36 of the Vienna Convention 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. Pakistan requested the court to dismiss the claim of India in its entirety.

How will the ICJ's decision on the case affect India-Pakistan relations?

Jadhav may not be executed immediately even if the ICJ judgment goes against New Delhi. Pakistan may rather use him as a leverage to put pressure on India for the resumption of the bilateral dialogue, which remained stalled since January 2013. Any hasty move by Pakistan to carry out the death sentence awarded to him will make it all the more difficult for Prime Minister Imran Khan's Government to restart engagements with India. Islamabad may cite the ICJ judgment in its favour as a moral victory for it and then set him free as a humanitarian gesture – of course after extracting a cost from New Delhi. New Delhi. On the other hand, will claim victory if the ICJ orders Pakistan to give India consular access to Jadhav and asks it to conduct a re-trial in a civilian court. The fate of the former Indian Navy officer, however, will still hang in balance for several more months and will continue to be linked with the twists and turns of India-Pakistan relations.