ICJ snubs Pakistan, accepts India’s key argument: Round one to India, Kulbhushan Jadhav

ICJ tells Pak to ensure he is not executed until final verdict, backs access plea.

Written by Shubhajit Roy | New Delhi | Updated: May 19, 2017 8:28 am
Kulbhushan Jadhav, jadhav, Kulbhushan Jadhav death sentence, Kulbhushan Jadhav hearing, ICJ, international court of justice, jadhav hearing, jadhav CJI, hague, pakistan, indian pak relations, indian express news, india news, indian express explained Presiding Judge Ronny Abraham of France (far right) and other judges enter the courtroom at The Hague on Thursday. AP photo

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.

Read | Tussle between Army, govt will shape how The Hague verdict plays out in Pakistan

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.”

Read | Kulbhushan Jadhav’s execution stayed by ICJ: Full text of verdict

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)

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  1. Z
    Zulkifal Ahmed
    May 19, 2017 at 4:40 pm
    India’s challenge by going to the ICJ inadvertently gives us a unique opportunity of not only internationalizing the Jadhav affair but more importantly open the door for exposing the murderous violation of human rights in Kashmir. Hague battle: stan still very much in the game s: www.globalvillagespace /hague-battle- stan-still-very-much-in-the-game/
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      George Cruz
      May 19, 2017 at 7:03 pm
      Kashmir doesn't belong to Sunni Muslims because the Indian subcontinent was inhabited by the Hindus for thousands of years before the Turkish invasion in the early 1100s. Moreover, no international bodies can Kashmir from India which is becoming a major economic as well as military power in South Asia. These Kashmir separatist Islamic Sunni Muslims will be forced to emigrate to Pak which was carved out of greater India in 1947.
      Reply
    2. K
      kempu
      May 19, 2017 at 2:22 pm
      It is the enormous goodwill that Kulbhushan Jadhav enjoys among ordinary people here that could ultimately deter stan from carrying out his execution. By approaching the ICJ over the Jadhav issue, the Indian govt has not only broken the spirit of the 2008 Agreement which binds the 2 countries not to take bilateral issues to the international arena ; more foolishly, the Indian govt itself has now opened the way for stan to raise issues of human rights violations by our security forces (in Kashmir) in ICJ & other international forums. Do the Indian Army & other security personnel relish the prospect of being investigated by the UNHRC ? Is the ICJ preliminary verict a really "big win" in the long run ? The bare fact is that the ICJ has not yet ordered stan to give consular access to Jadhav.We need to be aware that this kind of legal battle & claims about the verdict only supply "positive energy" (Salve) to the govt & RSS propa a machinery.
      Reply
      1. P
        patrick vamsey
        May 19, 2017 at 1:22 pm
        somebody commented no body knows the whereabouts of KULBHUSHAN FAMILY ??? - if it is true - then it is very dangerous game of RSS DOVAL AND FEKU
        Reply
        1. M
          Murthy
          May 19, 2017 at 1:04 pm
          Lot of Stanis here with Hindu names. Isn't that against Islam to do that ? I wonder if they pick those names from the Bollywood movies they have been watching ?? It is possible that some of these Stanis are living in Western countries. There it would be a lot easier for them to know Hindu names.
          Reply
          1. K
            kiran rathod
            May 19, 2017 at 11:55 am
            who killed OM PURI - ? INDIAN JAMES BOND
            Reply
            1. M
              Murthy
              May 19, 2017 at 1:07 pm
              It must be very, very hot in Rajasthan's desert. Please get out of the heat or at least wear something on your head... you know, head is the part that shelters the brain....
              Reply
              1. K
                kiran rathod
                May 19, 2017 at 1:25 pm
                oh my god are you indian james bond agent giving death threats - ??? i am very scared please spare me i will run to pak will never return to india i dont want to go to meet om puri , or become kulbhushan
            2. G
              Gorwell
              May 19, 2017 at 11:25 am
              Till yesterday IE's Pundits were crying se that India is doomed at ICJ.. EAT CROW TODAY IE WILL YA???
              Reply
              1. M
                Murthy
                May 19, 2017 at 1:09 pm
                Exactly... Our Media and our "intellectuals" are so negative, it is amazing India survives as well as it does, despite these Pandits, Columnists and "intellectuals".
                Reply
              2. K
                kulkarni p s
                May 19, 2017 at 11:18 am
                this all kulbhushan drama is by sanghi GOVT sold out media safron elements RSS BJP and its IT cell - no average indian is bothered weather kulbhushan is hanged or not , none of military soldiers are worried nor even his parents and wife have given any response - it is clear RSS doing politics on kulbhushan
                Reply
                1. K
                  KK
                  May 19, 2017 at 11:06 am
                  vow RSS is making good fo ols out of indians - achha mach chal raha hai - all attention towards fake kulbhushan aka hussain mubarak patel - and flare ha tred among hindus for muslims and pak - so when EVM will sn atch BJP RSS power this will help them to go to war with pak - this is pre preparation
                  Reply
                  1. G
                    Gorwell
                    May 19, 2017 at 11:23 am
                    Y can't u keep shut, Dumbo???
                    Reply
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