In a reprieve for Indian national Kulbhushan Jadhav, the International Court of Justice (ICJ) at The Hague on Tuesday acted on India’s petition and, in effect, asked Pakistan to stay the execution ordered by a Pakistan military court. Jadhav, a retired Indian Navy officer, was arrested by Pakistan and found guilty of being a spy for India’s intelligence agencies. He was awarded the death sentence in April.
In his letter to the Pakistan government, President of the ICJ Ronny Abraham said: “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 had its appropriate effects.”
The ICJ was acting on a petition moved by India on Monday,where it accused Pakistan of “egregious violations of the Vienna Convention on Consular Relations”. In its application, India had said it was not informed of Jadhav’s detention until long after his arrest and that Pakistan failed to inform the accused of his rights.
India further argued that Pakistan was in violation of the Vienna Convention, as its authorities were denying India the right of consular access to Jadhav, despite repeated requests. Moreover, India said it learnt about Jadhav’s death sentence from a press release. India also said it had information that Kulbhushan 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 they were notified of that arrest on March 25, 2016. India also said it sought consular access to Kulbhushan Jadhav on March 26, 2016 and repeatedly thereafter for at least 16 times.
Through the ICJ, India had sought the following reliefs:
1. Relief by way of immediate suspension of the sentence of death awarded to the accused
2. Relief by way of restitution in interregnum by declaring that the sentence of the military court arrived at, in brazen defiance of the Vienna Convention rights under Article 36, particularly Article 36[,] paragraph 1 (b), 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, is violative of international law and the provisions of the Vienna Convention
3. Restraining 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
4. If Pakistan is unable to annul the decision, then this Court to 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.”
Further, pending the final judgment in the case, India has urged the court to indicate:
a. That the Government of the Islamic Republic of Pakistan take all measures necessary to ensure that Kulbhushan Sudhir Jadhav is not executed;
b. That the Government of the Islamic Republic of Pakistan report to the Court the action it has taken in pursuance of sub-paragraph (a); and
c That the Government of the Islamic Republic of Pakistan ensure that no action is taken that might prejudice the rights of the Republic of India or Mr. Kulbhushan Sudhir Jadhav with respect of any decision the Court may render on the merits of the case”.
Acting on this, President of ICJ Ronny Abraham wrote to the Pakistan government letter, in effect, ordering a stay on the execution. The President of the ICJ used his powers under Article 74, paragraph 4 of the Rules of Court. Here’s what the section states:
Article 74, paragraph 4:
“Pending the meeting of the Court, the President may call upon the parties to act in such a way as will enable any order the Court may make on the request for provisional measures to have its appropriate effects.”
India’s External Affairs Minister Sushma Swaraj tweeted late Tuesday night appreciating the efforts of senior Advocate Harish Salve who is representing India at The Hague. She also said she informed Jadhav’s mother of the ICJ President’s letter to Pakistan that, in effect, has put a stay on Jadhav’s execution.
Speaking to news channel Republic TV late last night Salve said: This is a reprieve. We’ve gone to ICJ based on Vienna convention. Despite 16 attempts we have not been allowed consular access to Kulbhushan. According to the Vienna convention, the mother country has to right to give national and legal representation to its citizens. None of that has been allowed that is why we are at the International Court of Justice.”