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September 21, 2017
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India wins reprieve for Jadhav at the ICJ: Pakistan must stay his killing

By Nilova Roy Chaudhury May 2017
 

ICJ-UN

New Delhi. India won recognition of its position and a stay of execution for Kulbhushan Jadhav at the International Court of Justice (ICJ) on Thursday, May 18, achieving the immediate objective for which it had approached the UN’s highest court.

Former Indian navy officer Jadhav has been in captivity in Pakistan since March 2016, after he was abducted while on a visit to Iran. He was subsequently branded as an Indian spy and charged with terrorism and waging war against Pakistan, tried by a military court and sentenced to death. The sentence, pronounced by a military court on April 10, and upheld by the Pakistan army chief General Qamar Javed Bajwa, came as a huge shock to the Indian establishment which has no idea about the man’s whereabouts. India has repeatedly sought (a total of 16 times since he was taken prisoner in March 2016) consular access to Jadhav, but has repeatedly been turned down by Pakistan.

The Jadhav case and the need for India to approach the ICJ, thereby internationalising the matter, is clear indication of the “very sorry state” of India Pakistan relations, a senior official told India Strategic. It also points to a “deep divide” between the Pakistan military and civilian establishments.

The refusal to grant consular access to Jadhav and the secrecy with which the trial was conducted, without allowing him proper legal representation, followed by the sentence of death, forced New Delhi to approach the ICJ, on May 8, seeking a stay of execution.

India sought the ICJ’s intervention to stay the Pakistani military court’s order of execution, resulting from what India termed a “farcical” process. India said it apprehended an immediate threat to the life of Jadhav, an Indian national, and sought the ICJ’s intervention, citing Pakistan’s contravention of the Vienna Conventions on Consular access. The ICJ held its hearing on Monday, May 15, when both India and Pakistan made their submissions to the court.

Pakistan said the ICJ had no jurisdiction in the case and the Vienna Conventions did not apply in Jadhav’s case, as he had confessed to being a spy and indulging in terrorist acts.

In a unanimous verdict, the 11-member bench of the ICJ clearly outlined provisional measures enjoining Pakistan to take all steps needed to ensure that Jadhav was not executed pending adjudication of the matter. The court also observed that it had jurisdiction in this case, as both India and Pakistan were members of the United Nations and had signed the Vienna Conventions.

Pakistan would also need to inform the court about the steps it takes to implement the order, which the ICJ head judge Ronny Abraham clearly stated are binding and create international legal obligations for the country to which they are addressed.

“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,” the judgement stated, accepting India’s plea, and “Unanimously, decides that until it has given its final decision, it shall remain seized of the matters which form the subject-matter of this Order.”

The verdict, although a huge relief for India, will not allow immediate consular access to Jadhav. While accepting India’s contention, the ICJ also said Pakistan had illegally withheld consular access to him, but consular access is not what India sought in its plea, which was limited to seeking an immediate stay of the impending execution. Lack of consular access to an Indian citizen was cited by India to bolster its case.

The Vienna Convention has provisions for consular access to accused even in cases of terror and espionage, the court said.

Delivering the interim order on India’s plea, the highest UN court rejected Pakistan’s contention that it lacked jurisdiction in the case and held that India had a “plausible” right to access to Jadhav.

The earliest he could have been executed was May 19, (40 days after the sentence of death was pronounced), which is why India pleaded urgency. However, the ICJ order now compels Pakistan to wait for the verdict after the full hearing, which could take several years.

Calling the order a “great relief,” MEA spokesman Gopal Baglay said the “ICJ has delivered a unanimous, favourable, clear and unambiguous order for India’s request for provisional measures.”

While Pakistan’s foreign office has sought to downplay the international impact of this verdict, Baglay specified, “This order creates legally binding international obligations. We hope the verdict will end the egregious violation of Jadhav’s rights,” Baglay added.

Thursday’s verdict may have brought Jadhav an immediate reprieve from execution, but India’s MEA and top legal luminaries like Harish Salve, who argued India’s case at the ICJ, have a very long and winding road ahead before (and indeed, if) the former Indian Navy officer can return to his homeland.

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