ICJ rejects India’s plea for annulment of alleged spy’s sentence

By Aamir Latif

KARACHI, Pakistan (AA) - The International Court of Justice (ICJ) on Wednesday ruled that alleged Indian spy Kulbhushan Jadhav, who is on death row, be treated under the Vienna convention asking Pakistan to provide him consular access, and continue to stay his execution.

In its 15-1 verdict delivered by the ICJ bench led by President Abdulqawi Ahmed Yusuf, however rejected India’s demands for acquittal, release and repatriation of Jadhav apart from annulment of military court conviction.

Only one member of the bench -- Justice Tassaduq Hussein Jilani from Pakistan -- differed with his 14 fellow judges.

“To India’s submission that the Court declare that the sentence handed down by Pakistan’s military court is violative of international law and the provisions of the Vienna Convention, the Court recalls that its jurisdiction has its basis in Article I of the Optional Protocol. This jurisdiction is limited to the interpretation or application of the Vienna Convention and does not extend to India’s claims based on any other rules of international law”, the court ruling said.

“Thus, the court finds that these submissions made by India cannot be upheld,” it added.

The court, however, ordered that Jadhav’s execution be stayed until Islamabad “effectively reviews and reconsiders the conviction/sentence in light of Pakistan’s breach of Article 36 (1) [of Vienna Convention]” i.e. denial of consular access and notification.

“The court considers it imperative to re-emphasize that the review and reconsideration of the conviction and sentence of Jadhav must be effective”, the judgment read.

Recognizing that Jadhav has two opportunities to challenge the military court’s judgment .i.e. the High Court and the Supreme court in addition to the two mercy petitions to the army chief and the President, the ICJ also cited a judgment of Peshawar High Court, in which it annulled the death sentences to suspected militants handed down by a military court in 2018.

- Vienna convention

“India and Pakistan have been parties to the Vienna Convention. Article 36 of the Convention does not exclude from its scope certain categories of persons, such as those suspected of espionage,” the court ruled in response to Pakistan’s claim that the Vienna Convention does not apply in cases of individuals involved in espionage activity.

The ICJ rejected Islamabad’s objections to the ICJ’s jurisdiction and admissibility of India’s application declaring that it had jurisdiction under Article I of the Optional Protocol to entertain India’s claims based on alleged violations of the Vienna Convention.

“The present dispute concerns the question of consular assistance with regard to the arrest, detention, trial and sentencing of Mr. Jadhav. The Court notes that Pakistan has not contested that the dispute relates to the interpretation and application of the Vienna Convention”, the court went on to declare.

Citing the judgments and observations of several international law commissions, the court founded that there was no suggestion of consular access not being granted in cases of espionage because of national security concerns.

The court found that Pakistan acted in breach of its obligations by not informing Jadhav of his rights under Article 36, by not informing India without delay of his arrest and detention, and by denying access to Jadhav by consular officers of India.

“The court finds that none of the arguments raised by Pakistan concerning the applicability of Article 36 of the Vienna Convention to the case of Jadhav can be upheld. The Court thus concludes that the Vienna Convention is applicable in the present case, regardless of the allegations that Mr. Jadhav was engaged in espionage activities”, the judgment read.

The court was of the view that the alleged failure by India to cooperate in the investigation process in Pakistan did not relieve Islamabad of its obligation to grant consular access under Article 36, paragraph 1, of the Vienna Convention, and “does not justify Pakistan’s denial of access to Jadhav by consular officers of India”.

India has welcomed the judgment.

"We welcome the justice delivered just now by ICJ in Hague, in the favour of India. The court by a vote of 15-1 has upheld India's claim that Pakistan is in violation of Vienna Convention on several counts,” said Raveesh Kumar, spokesman for the Ministry of External Affairs.

"We appreciate direction by ICJ that Pakistan should review and reconsider conviction and sentence given to Jadhav by Pakistani military court,” it added.

- Background

Kulbhushan Jadhav -- who Pakistan says was a serving officer in the Indian Navy -- was arrested in March 2016 in Mashakel town, a few miles from the Iranian border. According to the military, he was using the Muslim name Hussein Mubarak Patel.

Officials accuse Jadhav of running a spy network for India’s Research and Analysis Wing (RAW) intelligence agency from the Iranian port of Chabahar.

Jadhav was later tried by a military court that sentenced him to death in April 2017 on espionage and terrorism charges. No date, however, was set for his execution, which would be by hanging.

According to the military, Jadhav had confessed before the court to having been tasked to “plan, coordinate and organize espionage/sabotage activities aiming to destabilize and wage war against Pakistan by impeding the efforts of law enforcement agencies for restoring peace in Balochistan and Karachi.”

New Delhi rejects Islamabad's charges declaring Jadhav a retired navy officer who was “kidnapped" from Iran, where he was doing his own business and his subsequent presence in Pakistan was never explained credibly.

India also threatened if the sentence against its citizen was carried out then it would be regarded as “a case of premeditated murder”.

New Delhi had moved to the ICJ, which stayed Jadhav's execution in July 2017.

*Shuriah Niazi contributed this story