Kulbhushan Jhadav: ICJ Judgment is a Stinging Rebuke to Pakistan, Exposes its Blatant Falsehoods

The judgment in Jhadav (India v Pakistan) case delivered by the International Court of Justice at The Hague on July 17, 2019, is not just a resounding victory for India, by ruling that there are no exceptions to the right of consular access provided under Article 36 of Vienna convention to exclude certain category of persons, including those accused of espionage, the UN judicial organ has struck a huge blow for human rights and effective and robust implementation of Vienna convention.

The judgment at the same time rejected Pakistan’s false claims that Kulbhushan was given a fair trail by its military court and his confessions were voluntary.

The judgment is clinical in its precision, and has upon straightforward determination of facts, vigorously applied and interpreted the provisions of Vienna convention to deal with and reject almost all the objections raised by Pakistan.

The matter primarily related to India raising dispute before the ICJ concerning the denial of consular assistance with regard to the arrest, detention, trail and sentencing of Kulbhushan Jhadav, an Indian national who had served the Indian Navy and had retired and was thereafter carrying out business in Iran.

By way of factual background the judgment noted that Pakistan had accused Jadhav of involvement in espionage and terrorism activities and after carrying out proceedings before a military court a sentence of death was awarded to Jadhav on the basis of his confessions.

Pakistan had contended that as Jadhav was guilty of offences related to espionage and terrorism, he was not entitled to consular access as per customary international law and had accused India of abuse of process for bringing the case before ICJ due to india’s failure to cooperate with Pakistan in investigation for crimes of espionage and terrorism and as such had approached the court with unclean hands.

The court notes in its judgment that “The circumstances of his apprehension remain in dispute between the Parties. According to India, Mr. Jadhav was kidnapped from Iran, where he was residing and carrying out business activities after his retirement from the Indian Navy. He was subsequently transferred to Pakistan and detained for interrogation. Pakistan contends that Mr. Jadhav, whom it accuses of performing acts of espionage and terrorism on behalf of India, was arrested in Balochistan near the border with Iran after illegally entering Pakistani territory. Pakistan explains that, at the moment of his arrest, Mr. Jadhav was in possession of an Indian passport bearing the name “Hussein Mubarak Patel”. India denies these allegations.”

India had primarily contended before the court that Pakistan acted in breach of its obligations under Article 36 of the Vienna Convention,

(i) by not informing Mr. Jadhav of his rights to consular access under Article 36, paragraph 1 (b);

(ii) by not informing India, without delay, of the arrest and detention of Mr. Jadhav; and

(iii) by denying access to Mr. Jadhav by consular officers of India, which prevented them to arrange for his legal representation

ICJ majority judgment of 15 in favour and 1 against has ruled in favour of India on all the above three counts. While doing so, the court has made a stinging indictment of Pakistan in a very strong language, which is not ordinarily used in verdicts of the international court. In para 134 of the judgment the court had held that “ The Court considers that the breaches by Pakistan set out in (i) and (iii) in the paragraph above constitute internationally wrongful acts of a continuing character. Accordingly, the Court is of the view that Pakistan is under an obligation to cease those acts and to comply fully with its obligations under Article 36 of the Vienna Convention. Consequently, Pakistan must inform Mr. Jadhav without further delay of his rights under Article 36, paragraph 1 (b), and allow Indian consular officers to have access to him and to arrange for his legal representation, as provided by Article 36, paragraph 1 (a) and (c).

The salutary effect of the judgment is to recognise the right of consular access to any foreign individual arrested or detained for any offence in a country signatory to the Vienna convention as sacrosanct. The court has reasoned if an accusation of espionage is treated as an exception, then the right to consular access can be defeated merely by levelling accusation of espionage. The court has also ruled that allegation by Pakistan against India of breach of any other international treaty cannot be the basis for denial of consular access, including for India’s alleged refusal to cooperate and provide assistance to Pakistan to investigate allegations of terrorism and espionage against Jadhav. The court has held that “the alleged failure by India to co-operate in the investigation process in Pakistan does not relieve Pakistan of its obligation to grant consular access under Article 36, paragraph 1, of the Convention, and does not justify Pakistan’s denial of access to Mr. Jadhav by consular officers of India.”

The most important aspect of the judgment relates to attaching the highest value to requirement of a fair trialand the right to consular access provided in the Vienna convention as a potent device of international law to ensure fair trial.

While discussing the remedies the court has recognised that a fair trail can only take place in a judicial forum and by implication, not in a military court. It has also upheld and reiterated from its earlier judgments the principle of reparation, which means making amends for a wrong one has done. The court has held that “it is a principle of international law . . . that any breach of an engagement involves an obligation to make reparation” and that “reparation must, as far as possible, wipe out all the consequences of the illegal act”. Applying this principle court has determined “The Court considers the appropriate remedy in this case to be effective review and reconsideration of the conviction and sentence of Mr. Jadhav.”

At the same time the court had seen through the bogus claims made by Pakistan before it to the effect that the confession of Jadhav that he carried out espionage and terrorist activities as voluntary and that he had on his own choice agreed to be represented by a military officer and not an independent counsel and felt the need to underline that any review and reconsideration must be effective and chose to elaborate on this aspect in very clear terms as follows:

“The Court considers that a special emphasis must be placed on the need for the review and reconsideration to be effective. The review and reconsideration of the conviction and sentence of Mr. Jadhav, in order to be effective, must ensure that full weight is given to the effect of the violation of the rights set forth in Article 36, paragraph 1, of the Convention and guarantee that the violation and the possible prejudice caused by the violation are fully examined. It presupposes the existence of a procedure which is suitable for this purpose. The Court observes that it is normally the judicial process which is suited to the task of review and reconsideration.”

The court chose to reject Pakistan’s arguments that clemency and provision of review under existing provisions of law in Pakistan can be such effective review and reconsideration. The court went on to further hold that “…respect for the principles of a fair trial is of cardinal importance in any review and reconsideration, and that, in the circumstances of the present case, it is essential for the review and reconsideration of the conviction and sentence of Mr. Jadhav to be effective. 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. 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.”

Though ultimately the court left the means and course to be adopted by Pakistan to ensure the review and reconsideration “of its on choosing”, but the observations made in the judgment itself as quoted above leave hardly leaves any room for doubt that such a process can only take place before a judicial forum. The court by recording Pakistan’s submissions to the effect that the Constitution of Pakistan guarantees, as a fundamental right, the right to a fair trial; that the right to a fair trial is “absolute” and “cannot be taken away”; and that all trials are conducted accordingly and, if not, “the process of judicial review is always available”, by implication seeks to hold Pakistan to its solemn representations made before the highest international forum and the judicial organ of the United Nations. Not only that the court has also held that “…freedom in the choice of means is not without qualification…The obligation to provide effective review and reconsideration is “an obligation of result” which “must be performed unconditionally” ….Consequently, Pakistan shall take all measures to provide for effective review and reconsideration, including, if necessary, by enacting appropriate legislation.” By pronouncing so, the court has shackled Pakistan’s choices to the most rigorous international standards of fair trial and this need arose, in my view, for the ICJ to do so, as the international court felt a total trust deficit in Pakistan as a Rule of Law abiding state.

The Way Forward

The very fact that ICJ in its judgment had to re-emphasise and underline in multiple ways how Pakistan ought to carry out review and reconsideration in an effective way, betrays total lack of faith of the international court in Pakistan to implement its verdict in letter and spirit.

Pakistan has sought to convey in public domain that it would implement the judgment. But given its conduct, serious doubts remain. That is the reason even Harish Salve, who led india’s case before ICJ, repeatedly asserted in press conference that in case of any non compliance India can go back to ICJ and even approach the UN Security Council to sanction Pakistan.

However, as the judgment of ICJ itself finds meaning in the force of international public opinion to ensure its implementation, India must lobby effectively with independent international rule of law organisations to help in effective implementation of judgment by Pakistan.

For example, observer missions by international organisations like the International Commission of Jurists, International Bar Association, and for Asia Pacific Region, Lawasia, have in the past been effective in ensuring fairness of process to certain degree.

The combined trial observer missions from ICJ, IBA, Lawasia in case of trial of Anwar Ibrahim in Malaysiaensured that the basic attributes of a fair trail are not wantonly ignored.

In Sri Lanka, the court reluctantly gave opportunity to the former Chief Justice Shirani Bhandarnaikr who was impeached and put on trial on flimsy charges of corruption as the trail was under the gaze of international observers (the writer was Lawasia observer for the trial). This episode led to unravelling of the trial and ultimately after the change of government, she was restored to her position and trial was dropped.

In Pakistan itself, the report of Lawasia Fact Finding Mission on Judicial crisis of 2008 and public opinion created by it became an important instrument for the civilian government to counter the resistance of military establishment to restore the judges of Supreme Court and High Courts in Pakistan who were deposed by General Musharraf. The writer was part of this Lawasia fact finding mission to Pakistan

Therefore it is imperative for the international rule of law community that independent observer missions from organisations like Lawasia, ICJ, IBA and other such organisations go to Pakistan andmake independent and unbiased reports on legal process adopted by Pakistan to carry out effective review and reconsideration of Jadhav’s case. In case of any non compliance by Pakistan to carry out the ICJ verdict in letter and spirit, the independent reports by such independent bodies will serve India well in taking up these issues before ICJ again or before Security Council and to seek sanctions against Pakistan. Even otherwise, the very presence of such observer missions ensures that some semblance of fairness and due process is maintained. The best outcome will be when Pakistan and the bodies of independent legal profession there by themselves approach these organisations to send observer missions, as today the most vital need is within Pakistan to ensure that its institutions are seen and perceived to be founded upon the rule of law and fairness of process.