KULBHUSHAN JADHAV DEATH SENTENCE: PAKISTAN TO OVERRULE INTERNATIONAL COURT OF JUSTICE’S ORDER

The article originally appeared on India Today.

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 of espionage and sabotage in Pakistan. The Dunya News report said “Attorney General of Pakistan was reportedly briefed on Friday over Indian spy Kulbhushan Jadhav’s issue and according to the sources, Pakistan is to deny jurisdiction of International Court of Justice (ICJ) to over cases that have Pakistan’s national stability at stake.”

According to the report, the briefing states that “Pakistan does not accept international court’s jurisdiction to order the state in issue that involves its national stability.”

In another report of Daily Pakistan, “Pakistan revised its commitment to the ICJ and had withdrawn all domestic and national security related issues from the jurisdiction of the court on March 29, thus making it impossible for Modi led India to pin down Pakistan in this case.”

The Daily Pakistan report further states that Pakistan, before handing over death sentence to Jadhav, had informed the ICJ about changes it made though its UN envoy Maleeha Lodhi. “Disputes relating to or connected with any aspect of hostilities, armed conflicts, individual or collective self-defence or the discharge of any functions pursuant to any decision or recommendation of international bodies, the deployment of armed forces abroad, as well as action relating and ancillary thereto in which Pakistan is, has been or may in future be involved”, the declaration by Pakistan read.

India had approached the International Court of Justice on May 8 with its plea which requested the UN judicial body to stay Jadhav’s execution till it hears the matter and reaches to any conclusion. India in its plea had accused Pakistan of “egregious violations” of the Vienna Convention on Consular Relations (VCCR). Both India and Pakistan are signatory to VCCR. India had requested for consular access to Kulbhushan Jadhav 16 times but Pakistan denied it every time. But according to the Daily Pakistan report, the Vienna Convention cannot help India as it applies to diplomats and not spies.

After India’s application, the ICJ, using its powers under the ‘Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes of 24 April 1963’ had stayed Jadhav’s execution and had issued notice to Pakistan. The public hearing in the case by the ICJ would be held on May 15.

THE KULBHUSHAN JADHAV DEATH SENTENCE

On April 10, the Pakistan Army chief confirmed Kulbhushan Jadhav’s death sentence, which was handed down by a Pakistani military court that held Jadhav guilty of espionage. Pakistan claims Jadhav, who allegedly used the alias Hussein Mubarak Patel in Pakistan, was attached to the Research and Analysis Wing (RAW). Pakistan arrested Jadhav in March 2016.

The Indian government has maintained that Kulbhushan Jadhav is a formal Indian Naval officer turned businessman who 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 the Pakistan Army.

India has also said that Jadhav is innocent and there is no evidence against him and that Pakistsan carried out a sham, secret trial in a military court where no information on charges and evidence was given. India has warned Pakistan of ‘dire consequences’ equalling Jadhav’s death sentence with pre-meditated murder and has time and again asked for the consular access to him.

©SantoshChaubey

INTERNATIONAL COURT OF JUSTICE STAYS KULBHUSHAN JADHAV DEATH SENTENCE

The article originally appeared on India Today.

In a major late night development, the International Court of Justice on Tuesday, in an interim order, placed a stay on the hanging of Kulbhushan Jadhav, the former Indian Navy officer sentenced to death by a Pakistani military court on charges of espionage.

Jadhav’s sentencing has kicked off a diplomatic row between India and Pakistan, with New Delhi slamming Islamabad for carrying out a “farcical” trial and for refusing to allow consular access to Jadhav.

The International Court of Justice, also known as the World Court or The Hague, is the main judicial organ of the United Nations and operates out of the Netherlands in Europe.

In a statement (read full ICJ statement) issued on India starting proceedings against Pakistan, the ICJ said, “Republic of India instituted proceedings against the Islamic Republic of Pakistan, accusing the latter of ‘egregious violations of the Vienna Convention on Consular Relations’ in the matter of the detention and trial of an Indian national, Mr. Kulbhushan Sudhir Jadhav, sentenced to death by a military court in Pakistan.”

HARISH SALVE REPRESENTING INDIA

External Affairs Minister Sushma Swaraj tweeted about the ICJ’s decision last Tuesday night, saying that she spoke to Jadhav’s mother and informed her about the ICJ’s decision. Senior lawyer Harish Salve is representing India at the ICJ, Swaraj added in another tweet.

“I have spoken to the mother of #KulbhushanJadhav and told her about the order of President, ICJ under Art 74 Paragraph 4 of Rules of Court”, Swaraj said, adding, “Mr.Harish Salve, Senior Advocate is representing India before International Court of Justice in the #KulbhushanJadhav case.”

Responding on India’s petition, the ICJ has forbidden Pakistan from hanging Kulbhushan Jadhav until The Hague conducts a detailed hearing on the matter.

WHAT THE ICJ SAID

In a statement (full statement) issued regarding India’s claim against Pakistan, the ICJ said, “The Applicant (India) contends that it was not informed of Mr. Jadhav’s detention until long after his arrest and that Pakistan failed to inform the accused of his rights. It further alleges that, in violation of the Vienna Convention, the authorities of Pakistan are denying India its right of consular access to Mr. Jadhav, despite its repeated requests. The Applicant also points out that it learned about the death sentence against Mr. Jadhav from a press release.”

“India submits that it has information that Mr. Jadhav was “kidnapped from Iran, where he was carrying on business after retiring from the Indian Navy, and was then shown to have been arrested in Baluchistan” on 3 March 2016, and that the Indian authorities were notified of that arrest on 25 March 2016. It claims to have sought consular access to Mr. Jadhav on 25 March 2016 and repeatedly thereafter,” the statement added.

“According to the Applicant, on 23 January 2017, Pakistan requested assistance in the investigation of Mr. Jadhav’s alleged ‘involvement in espionage and terrorist activities in Pakistan’ and, by a Note Verbale of 21 March 2017, informed India that ‘consular access [to Mr. Jadhav would] be considered in the light of the Indian side’s response to Pakistan’s request for assistance in [the] investigation process’. India claims that ‘linking assistance to the investigation process to the grant[ing] of consular access was by itself a serious violation of the Vienna Convention’,” the statement also said.

INDIA SEEKS RELIEF

According to the ICJ statement, India has sought the following:

Relief by way of immediate suspension of the sentence of death awarded to the accused.

Relief by way of restitution in interregnum by declaring that the sentence of the military court arrived at, in brazen defiance of the Vienna Convention rights under Article 36, particularly Article 36[,] paragraph 1 (b), and in defiance of elementary human rights of an accused which are also to be given effect as mandated under Article 14 of the 1966 International Covenant on Civil and Political Rights, is violative of international law and the provisions of the Vienna Convention.

Restraining Pakistan from giving effect to the sentence awarded by the military court, and directing it to take steps to annul the decision of the military court as may be available to it under the law in Pakistan.

If Pakistan is unable to annul the decision, then this Court to declare the decision illegal being violative of international law and treaty rights and restrain Pakistan from acting in violation of the Vienna Convention and international law by giving effect to the sentence or the conviction in any manner, and directing it to release the convicted Indian National forthwith.”

India has also requested the ICJ to direct Pakistan to:

Take all measures necessary to ensure that Mr. Kulbhushan Sudhir Jadhav is not executed.

Report to the Court the action it has taken in pursuance of the required statutes.

To ensure that no action is taken that might prejudice the rights of the Republic of India or Mr. Kulbhushan Sudhir Jadhav with respect of any decision the Court may render on the merits of the case”.

THE KULBHUSHAN JADHAV DEATH SENTENCE

On April 10, the Pakistan Army chief confirmed Kulbhushan Jadhav’s death sentence, which was handed down by a Pakistani military court that held Jadhav guilty of espionage.

Pakistan claims Jadhav, who allegedly used the alias Hussein Mubarak Patel in Pakistan, was attached to the Research and Analysis Wing (RAW).

The Indian government has maintained that Kulbhushan Jadhav is a formal Indian Naval officer turned businessman who 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 the Pakistan Army.

India has also said that Jadhav is innocent and there is no evidence against him and that Pakistsan carried out a sham, secret trial in a military court where no information on charges and evidence was given.

India has warned Pakistan of ‘dire consequences’ equalling Jadhav’s death sentence with pre-meditated murder and has time and again asked for the consular access to him.

©SantoshChaubey