ACTING on an Indian petition, the International Court of Justice (ICJ) at The Hague has written to the Pakistan government to, effectively, put on hold the execution of Kulbhushan Jadhav, the retired Indian Navy officer who was convicted of espionage charges by a Pakistan military court.
India on Tuesday had approached ICJ and asked it to intervene. It had accused Islamabad of violating the Vienna Convention on consular relations and not giving Jadhav his right to defend himself. This came exactly a month after Jadhav, 46, was sentenced to death by a military court in Pakistan for “espionage and subversive activities”, triggering a sharp reaction from India which said that if he was executed, it would be “premeditated murder”.
The government had also handed over a mercy petition to Islamabad by Jadhav’s mother.
In an order late tonight, ICJ President Ronny Abraham wrote to the Pakistan government: “In my capacity as President of the court, and exercising the powers conferred upon me under Article 74, paragraph 4 of the Rules of Court, I call upon your excellency’s government, 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.”
Referring to this, External Affairs Minister Sushma Swaraj said: “I have spoken to the mother of Kulbhushan Jadhav and told her about the order of President, ICJ under Article 74 paragraph 4 of the Rules of Court.” She said that Harish Salve, senior lawyer, is representing India at the ICJ.
I have spoken to the mother of #KulbhushanJadhav and told her about the order of President, ICJ under Art 74 Paragraph 4 of Rules of Court.
— Sushma Swaraj (@SushmaSwaraj) May 9, 2017
India approaching the ICJ is a tactical shift since it refrained from doing so on the Saurabh Kalia case saying that the ICJ had no jurisdiction over disputes between India and Pakistan.
According to the statement released by the ICJ, India has sought “relief by way of immediate suspension of the sentence of death awarded to the accused”, “relief by way of restitution in interregnum by declaring that the sentence of the military court arrived at, (is) in brazen defiance of the Vienna Convention rights under Article 36…and in defiance of elementary human rights of an accused which are also to be given effect as mandated under Article 14 of the 1966 International Covenant on Civil and Political Rights.”
It has also sought to restrain 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.
“If Pakistan is unable to annul the decision, then this Court (should) 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,” the application said.
New Delhi also contended that it was not informed of Jadhav’s detention until long after his arrest and that Pakistan failed to inform the accused of his rights. “It further alleges that, in violation of the Vienna Convention, the authorities of Pakistan are denying India its right of consular access to Jadhav, despite its repeated requests,” the ICJ said.
India also pointed out that it learned about the death sentence against Jadhav from a press release.
It then reiterated that Jadhav was “kidnapped 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 March 3, 2016, and that the Indian authorities were notified of that arrest on March 25, 2016. It claims to have sought consular access to Jadhav on 25 March 2016 and repeatedly thereafter.
The application states that Jadhav “will 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 points out that Jadhav’s execution “would cause irreparable prejudice to the rights claimed by India”,” the ICJ said.
India further indicates, the ICJ said, that the protection of its rights is a matter of urgency as “without the provisional measures requested, Pakistan will execute Kulbhushan Sudhir Jadhav before the Court can consider the merits of India’s claims and India will forever be deprived of the opportunity to vindicate its rights”.
So, India requested that “pending final judgment in this case, the Court indicate that the Pakistan government will take all measures necessary to ensure that Kulbhushan Sudhir Jadhav is not executed,” the ICJ said. “Also, that Pakistan report to the Court the action it has taken and that no action is taken that might prejudice the rights of the Republic of India or Jadhav with respect of any decision the Court may render on the merits of the case”.
India has once taken a case to the ICJ — even though it has been a party to a total five cases, three of them with Pakistan, at the ICJ. In 1971, India filed a case against the jurisdiction of International Civil Aviation Organisation (ICAO) to decide on Pakistan’s demand that India could not deny it overflight and landing rights. India had withdrawn Pakistan’s overflight rights after the January 1971 hijacking of an Indian Airlines flight to Lahore, and the gutting of the aircraft by the hijackers. The ICJ ruled against India, saying that ICAO had jurisdiction in this case.
Pakistan also took India to the ICJ in 1999, after India shot down an Atlantique patrol plane of the Pakistan Navy in Indian air space over the Rann of Kutch. India contested the case, and the ICJ upheld India’s position that the Court had no jurisdiction to entertain Pakistan’s claim.