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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:

Case BriefsInternational Courts

International Court of Justice ( ICJ): On 13 June 2016, Equatorial Guinea instituted proceedings against France in ICJ with regard to a dispute concerning the immunity from criminal jurisdiction of the Vice-President of the Republic of Equatorial Guinea, Mr Teodoro Nguema Obiang Mangue, and the legal status of the building which “houses the Embassy of Equatorial Guinea”, located at 42 Avenue Foch in Paris. Equatorial Guinea sought to find the Court’s jurisdiction, first, on Article 35 of the United Nations Convention against Transnational Organized Crime (“Palermo Convention”) and, second, on Article I of the Optional Protocol to the Vienna Convention on Diplomatic Relations concerning the Compulsory Settlement of Disputes (“Optional Protocol to the Vienna Convention”). France raised preliminary objections to the jurisdiction of the Court.

Mr Teodoro was fined and convicted for the offences like money laundering and misappropriation of public funds of his country of origin and investing it in France by a French Tribunal. As it was found on investigation that the building at 42 Avenue Foch was bought by him in pursuance of these offences, it was ordered to be attached. However, Equatorial Guinea claimed that the building to be part of its Diplomatic Mission in France. The attachment and his term were suspended after the Equatorial Guinea approached ICJ in this regard.

The Court observed that Equatorial Guinea’s claims based on principles of sovereign equality and non-intervention in the domestic affairs of other States (Article 4 of the Palermo Convention) were not valid as the Court considered that the said Article does not refer to the customary international rules, including State immunity, that is derived from sovereign equality but refers to the principle of sovereign equality itself. The Court gave the expression “sovereign equality” its ordinary meaning while observing that none of the provisions of the Palermo Convention relates expressly to the immunities of States and State officials. Further, it found this unrelated to the object and purpose of the Convention, set out in Article 1. Therefore, the Court concluded that the aspect of the dispute relating to the immunity of the Vice-President and the building from measures of constraint as State property did not concern the interpretation or application of the Palermo Convention and hence, Court lacked jurisdiction in relation to this aspect.

The Court rejected Equatorial Guinea’s claims based on the Palermo Convention concerning France’s alleged overextension of its criminal jurisdiction over predicate offences associated with the crime of money laundering.

Finally, Court noted that the Parties disagreed on the question whether the building constituted part of the premises of the Mission and was thus entitled to the treatment afforded for such premises under Article 22 of the Vienna Convention. Court found that this aspect of the dispute fell within the Vienna Convention and, consequently, it had jurisdiction under the Optional Protocol to the Vienna Convention to adjudge this aspect. [Immunities and Criminal Proceedings, Republic of Equatorial Guinea v. French Republic, No. 163, decided on 06-06-2018]