Categorically rejecting Pakistan’s arguments of sovereignty and its claims of due process, the International Court of Justice (ICJ) at The Hague Thursday stayed the execution of former Indian Navy officer Kulbhushan Jadhav until the court gives its final decision after the completion of proceedings.
Jadhav, 46, who is in Pakistan’s custody since March last year, had been sentenced to death by a military court — its proceedings were secret — on April 10 on charges of espionage and subversive activities.
Within hours of the verdict, India called it “the first step in ensuring justice”, and one which was a “matter of great relief” for people of the country.
The verdict accepted India’s key arguments, including the one about ICJ’s “jurisdiction” for which it had cited violation of the Vienna Convention on Consular Relations. This had been challenged by Pakistan at the hearing on May 15. The Hague also accepted New Delhi’s argument about the “urgency” of the matter which had also been contested by Islamabad citing the 150-day clemency period.
What was special about the verdict, from New Delhi’s point of view, was that it was a unanimous one by an 11-judge bench — a significant diplomatic achievement in the current standoff with Islamabad.
The court did not issue directions on consular access, which is going to be the next step for India.
While all eyes are on Pakistan on whether the civilian government led by Pakistan Prime Minister Nawaz Sharif is able to lean on the powerful military and grant consular access, sources in New Delhi told The Indian Express that they are considering reiterating their request for consular access again in the next few days.
While there were differing voices in Pakistan on whether the ICJ order will be implemented or not, New Delhi reminded them that the order is “legally binding”.
Reading out the verdict, three days after it was argued by both sides, ICJ president Ronny Abraham said: “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 order.”
The United Nation’s highest judicial body, which had earlier been approached by India, noted: “… the mere fact that Mr Jadhav is under a death sentence and might therefore be executed is sufficient to demonstrate the existence of a risk of irreparable prejudice to the rights claimed by India”.
“Pakistan has indicated that any execution of Mr 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.”
“The court also notes that Pakistan has given no assurance that Mr Jadhav will not be executed before the court has rendered its final decision. In those circumstances, the court is satisfied that there is urgency in the present case… The court also decides that, until it has given its final decision, it shall remain seized of the matters which form the subject matter of this order.”
As soon as the order came, Prime Minister Narendra Modi reportedly spoke to External Affairs Minister Sushma Swaraj who described the verdict as a “great relief”. They thanked senior lawyer Harish Salve who headed the battery of lawyers presenting India’s case.
While Swaraj said the government “will leave no stone unturned to save Jadhav”, Finance Minister Arun Jaitley said the verdict “endorsed the relevance and necessity of procedural and substantive fairness that was denied by Pakistan”. Home Minister Rajnath Singh said the order gave people of India “a deep sense of satisfaction and relief”. He said the Modi government will go “to any extent” to save Jadhav.
Officials in South Block, glued to their TV screens from 3.30 pm when the verdict was read out at The Hague, said the fact that the ICJ had endorsed India’s legal position on all counts was a “major sense of satisfaction”.
Gopal Baglay, the Ministry of External Affairs’ (MEA) official spokesperson, said: “The provisional relief provided by the ICJ is the first step in ensuring justice to Jadhav. The order by the ICJ is unanimous, favourable, clear and unambiguous. The verdict a matter of great relief for people of the country.”
In her tweets, Swaraj said: “The ICJ order has come as a great relief to the family of Kulbhushan Jadhav and people of India. I assure the nation that under the leadership of Prime Minister Modi we will leave no stone unturned to save Kulbhushan Jadhav.”
Asserting its jurisdiction over the case, the ICJ said in its order: “The Parties do indeed appear to have differed, and still differ today, on the question of India’s consular assistance to Mr. Jadhav under the Vienna Convention. It further notes that the acts alleged by India, i.e., the alleged failure by Pakistan to provide the requisite consular notifications with regard to the arrest and detention of Mr Jadhav, as well as the alleged failure to allow communication and provide access to him, appear to be capable of falling within the scope of the Convention. In the view of the Court, this is sufficient to establish that it has prima facie jurisdiction under Article I of the Optional Protocol. The Court further observes that the existence of a 2008 bilateral Agreement between the Parties on consular relations does not change its conclusion on jurisdiction.”
Pakistan had cited the bilateral consular access agreement to challenge ICJ’s jurisdiction whereas India had invoked the international law, the globally accepted Vienna Convention.
The ICJ also backed India’s contention that there has been violation of the Vienna Convention on consular relations since its requests for consular access to its national had been denied. “The court then turns to the question whether the rights alleged by India are at least plausible. It observes 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 recognised in Article 36, paragraph 1, of the Vienna Convention, and that India has alleged violations of this provision. In the view of the court, therefore, it appears that the rights alleged by India are plausible,” the court order stated.
On the issue of “urgency” shown by New Delhi, the ICJ once again backed New Delhi’s stance: “It considers that the mere fact that Mr. Jadhav is under a death sentence and might therefore be executed is sufficient to demonstrate the existence of a risk of irreparable prejudice to the rights claimed by India. The Court further observes that Pakistan has indicated that any execution of Mr. 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. The Court also notes that Pakistan has given no assurance that Mr. Jadhav will not be executed before the Court has rendered its final decision. In those circumstances, the Court is satisfied that there is urgency in the present case.”
Pakistan had told the court that the 150-day clemency period could last till August, since he was sentenced on April 10.
Asked about the statement by the Pakistan foreign office that it does not accept the ICJ’s jurisdiction in matters related to national security, Baglay said ICJ President had made it very clear that the verdict is “legally binding international obligation”.
(with PTI from Islamabad)