Kulbhushan Jadhav Case at International Court of Justice (ICJ): What Lies Ahead?

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ICJ Verdict in Kulbhushan Jadhav Case[/caption] Kulbhushan Jadhav (a 49-year old retired Indian Navy officer) was arrested by the Pakistani security forces allegedly on March 3, 2016, from Mashkel in Pakistan’s Balochistan Province. Here’s a brief account of what happened and what is going to happen in the coming times.

Kulbhushan Jadhav’s Arrest by the Pakistani Security Forces

Pakistani Version:

- Pakistan claims that Kulbhushan entered Chabahar (Iran) with a fake passport and made multiple undetected visits to Karachi and Balochistan. - They consider him to be India's external intelligence agency RAW’s (Research and Analysis Wing) operative. Pakistan believes, he allegedly wanted to sabotage the China-Pakistan Economic Corridor:

By creating disharmony among Baloch nationalist political parties through propaganda
By creating chaos through terrorist activities including a plot to attack Karachi and Gwadar ports from Chabahar port in Iran.

- Kulbhushan Jadhav was sentenced to death by Pakistan’s military court on April 10, 2017, on charges of “espionage and terrorism”. P.S. Pakistani media says that Kulbhushan started gathering intelligence on behalf of RAW after 2001 Indian Parliament attack.

Indian Version:

- The Indian Ministry of External Affairs has said that Jadhav was an Indian Naval officer who took premature retirement from his service and after that, he had no links with the government. Indian officials said that he owns a small cargo business in Iran and that’s why he was working in Chabahar and Bandar Abbas ports. - Indian media reports say that Kulbhushan either “strayed into Pakistani waters” or “he was lured into Pakistan” followed by fake documents being created by the ISI as “its several espionage modules were dismantled in India recently”. - Some Indian intelligence officials also believe that Kulbhushan Jadhav was kidnapped by an extremist group known as Jaishul Adil from the Iran-Pakistan border and was then handed over to the Pakistani security forces. - India says that Pakistan didn’t give it consular access to Jadhav multiple times. Reports say Pakistan denied 18 Indian consular access to Jadhav (as of July 2, 2017). - India calls Kulbhushan’s trial a “farcical trial” as it was a closed trial. India came to know of his death sentence from a press release. - Kulbhushan’s mother Avanti and wife Chetna were allowed in December 2017 to meet him on humanitarian grounds but later the Pakistan government “harassed” and “hectored” them, thereby creating an “intimidating” atmosphere.

India Approaches UN’s International Court of Justice (ICJ)

Once India came to know about the sentencing, Indian government summoned Abdul Basit (Pakistani Envoy to India) and said that they will consider Kulbhushan’s execution as first-degree murder. India also issued a demarche that stated the sentencing (by Field General Court Martial on April 10, 2017) was farcical. On March 8, 2017, India approached the UN’s principal judicial organ, International Court of Justice (ICJ). After the written submissions, ICJ fixed oral arguments during February 18-21, 2019. While India placed its oral arguments on February 18 and February 20, Pakistan argued on February 19 and February 21. Harish Salve (ex- Solicitor General of India) and Deepak Mittal (External Affairs Ministry Joint Secretary for Pakistan-Afghanistan-Iran) represented India at ICJ. Attorney General Anwar Mansoor Khan and Khawar Qureshi represented Pakistan.

India made two prayers and placed the following arguments:

Prayer #1: Suspension of Jadhav’s death sentence as Pakistan egregiously violated the provisions of the Vienna convention by not granting Indian consular access to Jadhav repeatedly. India argued at ICJ that Pakistan informed India about the detention of Jadhav after a long time. They didn’t inform Kulbhushan about his rights. India went on to allege that they learned about Jadhav’s death sentence from a press release. India asked to put Kulbhushan Jadhav’s execution on hold by referring to “the extreme gravity and immediacy of the threat that authorities in Pakistan would execute an Indian citizen”. Prayer #2: India also urged the ICJ to annul the death sentence delivered by the Pakistani domestic court because the sentencing was done based on an “extracted confession”. Salve argued that Pakistan violated the Vienna Convention and the issue of Kulbhushan Jadhav must be considered as a human rights issue. He also pointed out that the Vienna Convention’s Article 36 doesn’t exclude espionage. India urged the ICJ to annul the death sentence of the domestic military court of Pakistan and order a fair trial in a civilian court. Salve went on to argue that this civilian court trial must be carried out by strictly conforming to the International Covenant on Civil and Political Rights and not based on the “extracted confession”. India also urged the ICJ to direct Pakistan to provide India full consular access to Jadhav and at the same time provide India the right to arrange for his legal representation.

Pakistan’s arguments:

Pakistan argued that the military courts of Pakistan are “extremely independent” and have adequate judicial expertise/experience in dealing with these issues. It also argued that sufficient proof of espionage is there with the Pakistani military courts against Kulbhushan Jadhav. They claimed that consular access was not given as per the “agreement of 2008, specially for the reason that commander Jadhav being involved in espionage.”

What Is the Verdict of the ICJ?

The International Court of Justice announced its verdict in the Kulbhushan Jadhav case today (July 17, 2019) at 6.30pm IST by the President of ICJ Judge Abdulqawi Ahmed Yusuf at the Peace Palace in The Hague. Though the ICJ did not grant release from imprisonment and safe passage to India for Kulbhushan Jadhav, it ruled that his death sentence would remain suspended till Pakistan "effectively reviews and reconsiders" his trial and conviction. In a major victory for India, it also asked Pakistan to grant consular access to Kulbhushan Jadhav, and right to India to arrange legal representation for him, upholding the rule of law under the Vienna Convention on Consular Relations.

Are ICJ Judgments Binding?

Yes, as per UN Charter ICJ judgments are binding when it concerns disputes between two countries. Once the final verdict is announced, it will be the final one and no appeal could be done. An appeal can be done requesting court interpretation by either parties regarding the scope or meaning of the judgment. In case any new fact is brought in by any party which was hitherto unknown to the court, revision of the judgment can be applied by either party.