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International Court of Justice at Hague, will be delivering its Judgment in the Kulbhushan Jadhav Case today, i.e. 17-07-2019. A public sitting will take place at 3 p.m. (6.30 pm IST) at the Peace Palace in The Hague, during which Judge Abdulqawi Ahmed Yusuf, President of the Court, will read the Court’s decision.

“Kulbhushan Sudhir Jadhav, a retired Navy officer, was captured by Pakistani Military from Iran in the Year 2016 and further sentenced to death”

After a 4 day public hearing in the Kulbhushan Jadhav case that happened between 18-02-2019 to 21-02-2019, the Judgment in this high-profile case is to be pronounced after almost 4 months of wait.

During the hearing that took place in the month of February, the submissions of both India and Pakistan were filed and heard through a live hearing of the Jadhav Case, in which Harish Salve represented Jadhav and Mr Khawar Qureshi was the counsel from Pakistan.

Snippets from the 4-day hearing:

  • “Kulbhushan Jadhav has become a pawn and a convenient tool for Pakistan to try and unsuccessfully divert global attention from its own conduct.”
    -Senior Advocate Harish Salve
  • India’s Application should be declared inadmissible by reason of India’s conduct in this context manifesting abuse of rights, lack of good faith, illegality, lack of clean hand and misrepresentations.
  • Conduct of India as aforesaid militates against the grant of any relief in any event.
  • VCCR is not engaged as India has not established that Commander Jadhav is an Indian National, nor was consular access refused prior to the commencement of these proceedings.
  • “India’s hands are sullied” -Mr Khawar Qureshi
  • India’s conduct cannot go unchecked. This is the court of the international community, not fantasy not fiction.

Let’s have a look at the history of proceedings that took place in the Jadhav Case —

Background:

On 8 May 2017, India filed an Application instituting proceedings against Pakistan “for egregious violations of the Vienna Convention on Consular Relations, 1963” 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.

India contended that it had not been informed of Mr. Jadhav’s detention until long after his arrest and that Pakistan had failed to inform the accused of his rights. It further alleged that, in violation of the Vienna Convention, the authorities of Pakistan had denied India its right of consular access to Mr. Jadhav, despite its repeated requests. The Applicant also pointed out that it had learned about the death sentence against Mr. Jadhav from a press release.

In its Application, India sought the following reliefs:

(1) Relief by way of immediate suspension of the sentence of death awarded to the accused;

(2) A 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 were also to be given effect as mandated under Article 14 of the 1966 International Covenant on Civil and Political Rights, was violative of international law and the provisions of the Vienna Convention; and

(3) 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;

(4) If Pakistan was 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. ”

As basis for the Court’s jurisdiction, the Applicant invoked Article 36, paragraph 1, of the Statute of the Court, by virtue of the operation of Article I of the Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes of 24 April 1963.

On 8 May 2017, India also filed a request for the indication of provisional measures, pursuant to Article 41 of the Statute of the Court. It was explained in that Request that the alleged violation of the Vienna Convention by Pakistan had “prevented India from exercising its rights under the Convention and has deprived the Indian national of the protection accorded under the Convention”.

Applicant maintained that “Mr. Jadhav would be subjected to execution unless the Court indicates provisional measures directing the Government of Pakistan to take all measures necessary to ensure that he is not executed until the Court’s decision on the merits” of the case. India pointed out that Mr. Jadhav’s execution “would cause irreparable prejudice to the rights claimed by India ”.
India, therefore, requested that, “pending final judgment, in this case, the Court indicated:

(a) That the Government of the Islamic Republic of Pakistan take all measures necessary to ensure that Mr. Kulbhushan Sudhir Jadhav is not executed;

(b) That the Government of the Islamic Republic of Pakistan report to the Court the action it has taken in pursuance of sub-paragraph (a); and

(c) That the Government of the Islamic Republic of Pakistan 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”.

India, which referred to “the extreme gravity and immediacy of the threat that authorities in Pakistan would execute an Indian citizen in violation of obligations Pakistan owed to it”, further requested that the President of the Court, “exercising his power under Article 74, paragraph 4, of the Rules of the Court, pending the meeting of the Court … direct the parties to act in such a way as will enable any Order the Court may make on the Request for provisional measures to have its appropriate effects”.

On 9 May 2017, the President of the Court, acting in accordance with the powers conferred upon him by Article 74, paragraph 4, of the Rules of Court, addressed an urgent communication to both parties, calling upon Pakistan, pending the Court’s decision on the request for the indication of provisional measures, “to act in such a way as will enable any order the Court may make on this request to have its appropriate effects”.

The public hearings on the request for the indication of provisional measures presented by India were held on 15 May 2017.

At the close of those hearings, India confirmed the terms of the provisional measures it had requested the Court to indicate, while the Agent of Pakistan, for his part, asked the Court to reject the request for the indication of provisional measures presented by India.

On 18 May 2017, the Court delivered its Order, the operative part of which reads as follows:

“For these reasons, The Court,
I. Unanimously,

Indicates the following provisional measures:
Pakistan shall take all measures at its disposal to ensure that Mr. Jadhav is not executed pending the final decision in these proceedings and shall inform the Court of all the measures taken in implementation of the present Order.

II. Unanimously,
Decides that, until the Court has given its final decision, it shall remain seised of the matters which form the subject-matter of this Order.”

The Court was composed as follows: President Abraham; Judges Owada, Cançado Trindade, Xue, Donoghue, Gaja, Sebutinde, Bhandari, Robinson, Crawford, Gevorgian; Registrar Couvreur.

By an Order dated 13 June 2017, the President of the Court fixed 13 September 2017 and 13 December 2017 as the respective time-limits for the filing of a Memorial by India and a Counter-Memorial by Pakistan. These pleadings were filed within the time-limit thus fixed.

By an Order dated 17 January 2018, the Court authorized the submission of a Reply by India and a Rejoinder by Pakistan. It fixed 17 April 2018 and 17 July 2018 as the respective time-limits for the filing of these written pleadings. The pleadings were filed within the time-limits thus fixed.


Our take on the verdict that is to be pronounced:

ICJ Bench would possibly ask Islamabad to allow consular access to the accused and restrain the country from carrying out the death sentence.

Today’s decision will be very significant for both the member states.

What’s next for Jadhav?

Stay Tuned for the Updates!


Further Reading:

Hot Off The PressNews

“India’s hands are sullied”

                                                  -Mr Khawar Qureshi (Representing Pakistan)

In the Kulbhushan Jadhav Case, ICJ will begin the hearing for the second round of oral arguments today, i.e. 20-02-2019. India will be placing its arguments before the Court today and tomorrow Pakistan will.

Pakistan in its arguments placed before the ICJ in yesterday’s hearing (19-02-2019) stated that:

“India’s Application should be declared inadmissible by reason of India’s conduct in this context manifesting abuse of rights, lack of good faith, illegality, lack of clean hand and misrepresentations.”

“India’s claim for “at least”, “acquittal, release or return”/annulment of the conviction is at best misconceived, at worst made in bad faith in the light of the Court’s previous decisions consistently rejecting such a claim.”

“India has not made any other relief, thus its application should be dismissed.”

Stay tuned for the Live Updates.


 

 

 

 

Image Credits: Indian Express


LIVE UPDATES: India v. Pakistan [India to begins with the second round of oral arguments]

“Government of India requests this court to adjudge and declare that Pakistan acted in egregious breach of Article 36 of Vienna Convention”, Stated Deepak Mittal (Govt. of India’s Agent) 

  • Harish Salve starts with oral arguments.
  • As old lawyer saying goes ‘When you are strong on the law you hammer the law, when you are strong on facts you hammer the facts and when you are strong on neither you hammer the table’.Berefet of a case, Pakistan has hammered the proverbial table.
  • Pakistan has mischaracterized India’s reading of the report on Military Courts as an attempt to mislead the Court.
  • Pakistan’s comments deriding Lahore High Court Bar Association yesterday are regrettable.
  • Harish Salve on Pakistan Counsel’s arguments: A criticism of a sovereign state of the case made out of the other state must be in language consistent with the dignity of other states. Humpty Dumpty has no place in this Court.
  • India never suggested estoppel.  At least we keep reminding ourselves that we are in an International Court, not Commercial Court.
  • Pakistan did not question Jadhav’s nationality when 13 reminders were sent from India.
  • “Indian nationals are not the kind whose nationality needs to be denied.”
  • Biodata mentions that Jadhav was a former Indian Navy officer. This would be proof of his Indian nationality. Indian nationals are not the kind whose nationality needs to be denied.
  • Salve mentions the Mumbai Attack in 2008.
  • “If Jadhav had been involved in subversive activities, irrespective of whether or not he had an Indian passport, he would have been tried for espionage.”
  • “Pakistan has nothing beyond a confession and Passport.” [Pakistan has nothing beyond the extracted confession on which Mr. Jadhav has been convicted of participation in the subversive activities. Possessing a passport does not make you party to offences. Your role in those offences is what gets you a conviction. Not having a passport which would enable you to sneak into a country, as you mean there was such a passport.
  • India has repeatedly asked for a copy of the judgment convicting Jadhav and charges against.
  • “Pakistan claims to have clinching evidence on the basis of articles in the Indian press.”
  • Supreme Court of Pakistan has suppressed operation of Peshawar High Court cited by Pakistan. On one hand, Pakistan is challenging that judgment in Supreme Court, on the other, it is citing it in ICJ, Salve.
  • Kasab’s case cited by Salve in regard to “review.” When we talk of review, I’d like to draw your attention in stark contrast in the Kasab case. where the Supreme Court in India held that since it is a case of death sentence we may examine the materials on record first hand. This is called a review.
  • Pulwama Terror Attack mentioned by Harish Salve in line of other terror attacks by Pakistan. [Kulbhushan Jadhav has become a pawn in Pakistan tool to divert international scrutiny from itself, Salve says. The Indian counsel then refers to the terror attack in Pulwama on February 14 that killed at least 40 CRPF personnel. [United Sates has even called upon Pakistan “to end immediately the support and safe haven provided to all terrorist groups operating on its soil, whose only goal is to sow chaos, violence and terror in the region.]
  • There was a time when Pakistan was respected but not anymore.
  • Jadhav’s trial was completed in 4-6 months. What happened to the 150 people killed in the Mumbai terror attacks?
  • “One of the reasons why India seeks Mr. Jadhav’s release, apart from showing propaganda, is that he has become a pawn and a convenient tool for Pakistan to try and unsuccessfully divert global attention from its own conduct.”
  • “The time has come for this Court to make Article 36 a potent weapon for the protection of human rights.”
  • Salve ends his arguments.
  • India’s agent Deepak Mittal placed the relief being sought by India before ICJ.
  • President Abdulqawi Ahmed Yusuf speaking on appointment for ad-hoc Judge for Pakistan.
  • ICJ President Abdulqawi Ahmed Yusuf then refers to Pakistan’s request to replace ad-hoc Pakistani judge Tassaduq Hussain Jillani, who had suffered a cardiac arrest on the first day of hearings. “Judge ad-hoc Gilani was given case files and participated in all court deliberations before these hearings,” he says. “He will receive all transcripts of oral proceedings. He will continue to participate.”
  • Sitting Adjourned.

Pakistan will present its final round of arguments tomorrow, i.e. 21-02-2019.

Case BriefsHot Off The PressInternational CourtsNews

International Court of Justice at the Hague pronounced it’s verdict in favour of India. It said that the conditions required to indicate provisional measures are met, hence, it is appropriate to order that Pakistan should ensure that Kulbhushan Jadhav is not executed pending the final decision. The provisional order under Article 41(1) has binding obligation.

On the Jurisdiction of ICJ, the Court said that any reservation made in Bilateral Agreements cannot limit this Court’s jurisdiction under Vienna Convention. The provisions of Bilateral Agreement on Consular Access, 2008 do not expressly limit this Court’s jurisdiction. India has maintained at various times that Kulbhushan Jadhav should be given consular access, however, Pakistan maintained that it will be granted only if India provides assistance. It establishes that the Court has jurisdiction as the acts alleged by India are capable of falling under Article 36(1) of Vienna Convention. The alleged failure by Pakistan to allow communication and access to Kulbhushan Jadhav is enough to fall under provisions of Vienna Convention. Also, Vienna Convention does not exclude the persons accused of acts of espionage. Hence, the Court has prima facie jurisdiction to entertain the plea.

The Court said that the rights invoked by India under Article 36(1) of Vienna Convention are plausible. A link exists between rights claimed by India and the provisional measures being sought. The Court observed that the rights to consular notification and access between a State and its nationals, as well as the obligations of the detaining State to inform the person concerned without delay of his rights with regard to consular assistance and to allow their exercise, are recognized inArticle 36(1) of the Vienna Convention, and that India has alleged violations of this provision.

On Irreparable prejudice and urgency of the matter, ICJ said that as far as that is concerned the mere fact that that Kulbhushan Jadhav might be executed is sufficient to indicate the urgency. Pakistan has indicated that any execution of Kulbhushan Jadhav would probably not take place before the month of August 2017. This means that there is a risk that an execution could take place at any moment thereafter, before the Court has given its final decision in the case It is not clear as to when he might be executed. Pakistan has given no assurance that he will not be executed before the Court renders it’s final decision.

India had, on 08.05.2017, initiated the proceedings before ICJ against the execution of the death sentence imposed upon an Indian National Kulbhushan Jadhav, alleging that Pakistan kidnapped Kulbhushan Jadhav 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. On 09.05.2017, Judge Ronny Abraham, President of the ICJ  stayed the execution of Kulbhushan Jadhav under Article 74, paragraph 4, of the Rules of Court. Harish Salve and Khawar Qureshi represented India and Pakistan, respectively.

The hearing in the matter took place on 15.05.2017. Read the submissions by India and Pakistan, here.

Click here to read the order of the Court.