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The International Court of Justice (ICJ) on Wednesday (July 17) rejected India’s request to ‘acquit, release and return’ of its national Kulbhushan Jadhav, who was sentenced by Pakistan on charges of espionage, however, asked Pakistan to provide him consular access.

President of the ICJ Judge Abdulqawi Ahmed Yusuf from Somalia read out the operational part of the decision in a public sitting at the Peace Palace’s courtroom jam packed with officials, representatives and media persons from Pakistan and India.

In response to India’s plea to release Jadhav and to facilitate his safe passage to India, The Hague-based court said, “It is not the conviction and sentence of Mr Jadhav, which are to be regarded as a violation of Article 36 of the Vienna Convention.”

The court did not uphold the submissions by India that the “partial or total annulment of conviction or sentence provided the necessary and sole remedy”.

However, it declared that a continued stay of execution constituted an indispensable condition for the effective review and reconsideration of Jadhav’s conviction.

The ICJ Judgment

The ICJ said that even though it had found Pakistan in violation of Article 36 the Vienna Convention on Consular Relations (VCCR), “it is not the conviction and sentence of Mr. Jadhav which are to be regarded as a violation of Article 36 of the Vienna Convention.”

The most the ICJ said it could do was to order Pakistan to cease violation of Article 36 and review the case in light of how that violation may have affected the case’s outcome.

To this end, Pakistan was directed to immediately inform Jadhav of his rights under Article 36, grant India consular access, and then review the case while considering, under the laws of Pakistan, how not doing so earlier may have impacted the case’s outcome.

Article 36 of the Vienna Convention simply states that when a national of a foreign country is arrested, they must be informed of the right to have their country’s consulate notified and should also have the right to regular consultation with their consulate’s officials during their detention and trial.

Pakistan had argued that Article 36 is not applicable to persons believed to be involved in espionage.

“The Court considers that the violation of the rights set forth in Article 36, paragraph 1, of the Vienna Convention, and its implications for the principles of a fair trial, should be fully examined and properly addressed during the review and reconsideration process,” the court directed.

“In particular, any potential prejudice and the implications for the evidence and the right of defence of the accused should receive close scrutiny during the review and reconsideration,” it said.

“The Court notes that the obligation to provide effective review and reconsideration can be carried out in various ways. The choice of means is left to Pakistan,” it added. However, it stressed that, “Pakistan shall take all measures to provide for effective review and reconsideration, including, if necessary, by enacting appropriate legislation.”

While that matter is decided, Pakistan has been directed to suspend the execution of the death penalty awarded to Jadhav.

Indian argument

During the hearing of the case in the international court, India denied Jadhav was a spy and had asked the ICJ to order his release because he was denied consular access and not allowed to choose his own defence lawyer.

India’s lawyers told the court in February that it was a “farcical case” based on “malicious propaganda”, while Pakistan’s lawyers hit back by accusing Jadhav of “terrorism”.

India also accused Pakistan of  harassing Jadhav’s family in 2017 during a  meeting that it said was held in an “atmosphere of coercion”.

It said Jadhav’s conversation with his mother and wife was “tutored and designed to perpetuate the false narrative of his alleged activities in Pakistan”.

Jadhav, on the other hand, said he “saw fear” in the eyes of his mother and wife when he met them in Islamabad on December 25, 2017, adding that an Indian diplomat accompanying them was “yelling at them”.

Serving Indian Navy Commander Jadhav was arrested on March 3, 2016 in a counter-intelligence operation from the Balochistan province.

A  military court had given him death sentence on April 10, 2017 on charges of espionage following his confession on operating for India’s RAW to conduct terrorist activities on the Pakistani soil.

India had invoked the jurisdiction of ICJ on May 8, 2017 seeking stay in implementation of execution and later on expanded its prayer for consular access and also his acquittal, release and return.

The 15-member ICJ bench had reserved its decision on February 21 after hearing oral submissions by Pakistan and India.

Balochistan: The Indian Connection

On July 2, 2019, the United States declared India-backed Balochistan Liberation Army (BLA) as a global terrorist organization.

The US State Department said it was classifying the BLA as a global terrorist group, making it a crime for anyone in the United States to assist the militants and freezing any US assets they may have.

“The BLA is an armed separatist group that targets  security forces and civilians, mainly in ethnic Baloch areas of Pakistan,” the State Department noted, citing reason behind the move.

“The outfit has carried out several terrorist attacks in the past year, including a suicide attack in August, 2018 that targeted Chinese engineers in Balochistan, a November, 2018 attack on the Chinese consulate in Karachi, and a May, 2019 attack against a luxury hotel in Gwadar,” it added.

Tellingly, in August 2016, Indian Prime Minister Narendra Modi affirmed that India is backing Baloch seperatists.

In August 2016, Indian Prime Minister Narendra Modi stated: “Today from the ramparts of Red Fort, I want to greet and express my thanks to some people. In the last few days, people of Balochistan, Gilgit, [and] Pakistan-occupied Kashmir have thanked me, have expressed gratitude, and expressed good wishes for me.”

On another gathering in August 2016, Indian Prime Minister Narendra Modi said : The time has come when Pakistan shall have to answer to the world for the atrocities committed by it against people in Baluchistan.”

The separatist Balochistan Republican Party (BRP) leader Braham dagh Bugti, who has applied for political asylum in India, thanked Indian Prime Minister Narendra Modi for raising the issue of the situation in Balochistan in the latter’s Independence Day speech.

In August 2016, India’s National Security Advisor Ajit Doval said that Pakistan has many many more vulnerabilities than India and it may lose Balochistan.

‘Truth, justice prevails’, PM Modi welcomes ICJ verdict

Tellingly, Indian leaders and media declared the ICJ verdict as a victory to the Indian point of view on the Kulbhushan Jadhav case.

Prime Minister Narendra Modi welcomes the verdict and says, “We welcome today’s verdict in the @CIJ_ICJ. Truth and justice have prevailed. Congratulations to the ICJ for a verdict based on extensive study of facts. I am sure Kulbhushan Jadhav will get justice. Our Government will always work for the safety and welfare of every Indian.”

The Ministry of External Affairs validates and welcomes the ICJ judgment directing Pakistan to implement the consular access to Kulbhushan Jadhav “immediately”.

“We note that the Court had directed that Pakistan is udner an obligation to inform Shri Jadhav without further delay of his rights and to provide Indian consular access officers access to him in accordance with the Vienna Convention. We expect Pakistan to implement the directive immediately,” the statement read.

In a statement, the MEA appreciated the direction by the ICJ that Pakistan should review and reconsider the conviction and sentence given to Jadhav by the Pakistani military court.

The MEA vouches to work “vigourously” for Jadhav’s early release and return to India.

Residents of Satara, a small village in this western Maharashtra district, Wednesday celebrated as the International Court of Justice (ICJ) stayed the death sentence awarded to Kulbhushan Jadhav, PTI reported. People in Jadhav’s native Javli village in Satara district condemned Pakistan and demanded the immediate release of the retired Indian Navy officer.

Congress leader Rahul Gandhi says, “I welcome the ICJ verdict. My thoughts tonight are with Kulbhushan Jadhav, alone in a prison cell in Pakistan & with his distraught family for whom this verdict brings a rare moment of relief, joy & renewed hope, that he will one day be free to return to his home in India.”

The Congress urged the Centre to “leave no stone unturned” in Jadhav’s release and return to India. “While we support the ICJ’s decision to stay the death sentence, we will continue to demand the release of Kulbhushan Jadhav.We urge the Indian Govt to leave no stone unturned to get the ICJ to reverse this part,” the party said on Twitter.

‘Not too bad for Pakistan, pretty bad for India’

Political analysts in Pakistan argued that the ICJ has knocked out India’s major demands about Kulbhushan Jadhav’s release and annulment of sentence, practically admitted that he is a spy. The IJC asked Pakistan for review sentence through its own means with consular access.

Minister for Foreign Affairs Shah Mahmood Qureshi termed it a victory for Pakistan and to clear up any confusion regarding the convicted spy’s custody said that he shall “remain in Pakistan” and be “treated in accordance with the laws” of the country.

“Commander Jadhav shall remain in Pakistan. He shall be treated in accordance with the laws of Pakistan. This is a victory for Pakistan,” he said.

Nasim Zehra, senior journalist and author, in response to Reema Omar’s tweet, said that the judgment acknowledges Pakistan’s position that Jadhav is a spy and while asking that a Pakistani court review the military court’s decision, it doesn’t quash the military court’s decision and safe passage to India.

Express Tribune’s executive editor Fahd Husain termed the ruling “not too bad for Pakistan” and “pretty bad for India”. “ICJ verdict: (1) Jadhav will not be released (2) His sentence not overturned (3) His hanging stayed (4) He will get Consular access (5) His sentence to be reviewed. Conclusion: Indian all pleas rejected except consular access. Not too bad for Pakistan. Pretty bad for India,” he wrote.

Abdus Sattar Ghazali is the Chief Editor of the Journal of America (www.journalofamerica.net) email: asghazali2011 (@) gmail.com


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One Comment

  1. Farooque Chowdhury says:

    Pakistan claimed its own victory.

    “ICJ rejects India’s plea for Kulbhushan Jadhav’s acquittal,” said the headline in Pakistan Today. The news site claims that the ICJ verdict says Jadhav’s conviction and death sentence doesn’t violate Vienna Convention and the court ‘rejected all other remedies sought by India’.

    The Express Tribune which carried at least eight stories on Kulbhushan Jadhav on its website’s home page said that with the ICJ judgment “all Indian hopes of seeking remedies through international arbitration dashed”.

    Quoting Pakistani Army’s spokesperson Major General Asif Ghafoor, the Express Tribune said that the ruling validated military courts.

    Speaking to ARY News, Major General Asif Ghafoor claimed that the ICJ judgment was “another February 27 for India”.

    Pak daily, The News, highlighted that the ICJ verdict on Kulbhushan Jadhav does not grant his release or retrial. “The ICJ said that even though it had found Pakistan in violation of Article 36 of the Vienna Convention on Consular Relations (VCCR), “it is not the conviction and sentence of Mr. Jadhav which are to be regarded as a violation of Article 36 of the Vienna Convention”,” the news organisation said.

    The report added: “The ICJ said the most it could do was to order Pakistan to cease violation of Article 36 and review the case in light of how that violation may have affected the case’s outcome.”

    Dawn also gave extensive coverage to the news, leading with the headline “ICJ rejects India’s plea for Jadhav’s return, grant consular access”.

    The international media reports focused on the ICJ’s directive to Pakistan to review its death sentence to Kulbhushan Jadhav.

    “World Court Orders Review of Pakistan Death Sentence for Indian Convicted of Spying”, The New York Times’s headline said.

    The Washington Post story on the judgment said: “Alleged Indian spy on death row in Pakistan wins reprieve from execution”.

    British media also focussed on the part of the ICJ judgment which went in India’s favour. “UN court orders Pakistan not to execute Indian man accused of spying” The Guardian said in its report.

    Arab media like Gulf News and The Khaleej Times also highlighted that the Pakistan has been asked to review its order and Kulbhushan Jadhav’s death sentence has been suspended.

    What the verdict says

    India had challenged the death sentence awarded to Indian citizen Kulbhushan Jadhav by Pakistani military court on the basis that it Article36 of the Vienna Convention on Consular Relations, 1963. India accused Pakistan of:

    1) Not informing India of Jadhav’s detention,

    2) Of not informing Jadhav of his rights under the Vienna Convention,

    3) Declining access to Jadhav by consular officers of India.

    India had requested the court to:

    1) Declare the military court’s trial violated Vienna Convention,

    2) Direct Pakistan to release Jadhav and allow safe passage to India,

    3) Direct Pakistan to take steps to annul the decision of the military court,

    4) Direct a trial under the ordinary law before civilian courts.

    The international court, in its verdict, said that Pakistan did violate the Vienna Convention by denying the consular access to Jadhav and by not informing him of his rights.

    The court directed Pakistan to inform Jadhav “without further delay of his rights and to provide Indian consular officers access to him”.

    The ICJ also asked Pakistan to review how the violation of the Vienna Convention might have affected the trial according to its own justice system.

    The court finally considers that a continued stay of execution constitutes an indispensable condition for the effective review and reconsideration of the conviction and sentence of Mr.Jadhav, reads a statement issued by ICJ.

    The above paragraphs are quoted from mainstream media.

    Moreover, should not the ICJ’s directive/verdict/order be properly explained?

    So, should it be claimed that Mr. Abdus Sattar Ghazali’s report or interpretation is objective? Or, is it biased?