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ICJ announces verdict in Kulbhushan Jadhav case: No retrial, no release

Top Story

July 18, 2019

ISLAMABAD: The International Court of Justice (ICJ) on Wednesday found that India’s submission pertaining to the acquittal and release of spy Kulbhushan Jadhav could not be upheld.

The ICJ rejected all remedies sought by India, which included the annulment of the military court decision convicting Kulbhushan Jadhav, securing Jadhav’s release and ordering his return to India.

However, the court ruled that Kulbhushan Jadhav be allowed consular access immediately and asked Pakistan to ensure “effective review and reconsideration of his conviction and sentences”.

Pakistan’s team was headed by Attorney General Anwar Mansoor Khan. Pakistan immediately accepted the ICJ verdict and Spokesman of the Foreign Office Dr Mohammad Faisal present at the ICJ in The Hague remarked in a statement that his was a clear case of Indian state terrorism.

“As a responsible member of the international community, Pakistan upheld its commitment from the very beginning of the case by appearing before the court for the provisional measures hearing despite a very short notice. Having heard the judgment, Pakistan will now proceed as per law,” he said. However, the spokesman made no direct mention to allow consular access to Jadhav.

The spokesman pointed out that Indian Naval Commander Kulbhushan Jadhav entered Pakistan without a visa on authentic Indian passport with a fake alias Hussain Mubarak Patel. Jadhav is responsible for acts of sabotage, espionage and multiple terrorist incidents in which scores of innocent Pakistani citizens were killed resulting into umpteen women being widowed and numerous children becoming orphans.

“Commander Kulbhushan Jadhav has confessed all these acts during his trial in Pakistani court in front of a judicial magistrate. This is a clear case of Indian state terrorism,” he added.

The ICJ said that even though it had found Pakistan inviolation of Article 36 of the Vienna Convention on Consular Relations (VCCR), "it is not the conviction and sentence of Mr. Jadhav which are to be regarded as a violation of Article 36 of the Vienna Convention."

The ICJ said the most it could do was to order Pakistan to cease violation of Article 36 and review the case in light of how that violation may have affected the case's outcome.

"The court notes that Pakistan acknowledges that the appropriate remedy in the present case would be effective review and reconsideration of the conviction and sentence," it observed.

To this end, Pakistan was directed to immediately inform Jadhav of his rights under Article 36, grant him consular access, and then review the case while considering, under the laws of Pakistan, how not doing so earlier may have impacted the case.

"The court considers that the violation of the rights set forth in Article 36, paragraph 1, of the Vienna Convention, and its implications for the principles of a fair trial, should be fully examined and properly addressed during the review and reconsideration process," the court directed.

"In particular, any potential prejudice and the implications for the evidence and the right of defence of the accused should receive close scrutiny during the review and reconsideration," it said.

"The Court notes that the obligation to provide effective review and reconsideration can be carried out in various ways. The choice of means is left to Pakistan," it added.

However, it also added that, Pakistan shall take all measures to provide for effective review and reconsideration, including, if necessary, by enacting appropriate legislation. While that matter is decided, Pakistan was directed to suspend the execution of the death penalty awarded to Jadhav till it fulfils the directives set out by the ICJ.

There was criticism from a cabinet member from the PTI government on how the case had been handled so far with Minister for Human Rights Dr Shireen Mazari tweeting, “Since last year when ICJ accepted India's consular access petition I have been pointing out that one small blunder by MOFA of not registering the bilateral Pak-India consular access agreement of 2008 with the UN allowed this whole case to proceed as it did. Had MOFA in 2008 registered the bilateral Pak-India consular access agreement, the case would have had a different turn altogether. ICJ did not recognise the bilateral agreement (in which spies to be denied access) because it hadn't been registered with UN. Then previous govt rushed to register it. But who will be accountable for this negligence?”

Ad hoc judge Tassaduq Hussain Jillani in his dissenting note wrote that the Vienna Convention was not applicable to spies.

"The makers of the convention would not have imagined that it would be applied to spies some day. India is taking undue advantage of its rights," the dissenting note added. As Pakistan had no representation at the ICJ, Jillani was appointed as an ad hoc judge.

Meanwhile, Director General Inter-Services Public Relations (ISPR) Major General Asif Ghafoor said the ICJ accepted Pakistan's version on Kulbhushan Jadhav case and rejected the Indian appeals.

Speaking to a private media channel, the DG ISPR said that India’s appeal for release of Jadhav and the annulment of the sentence given by the military court -- both were rejected. Asif Ghafoor said that it's a success for Pakistan that its version was accepted in hearings which were convened on short notice.

He said that it was another February 27 and another surprise for India and after the decision, India is certified to undertake state terrorism in Pakistan and what it has been doing in Pakistan. He said that India was misunderstanding it would get decision in its favour while using the narrative based on lie and political manoeuvring as it attempted to do so on February 27 to hide hitting down of its two fighter jets.

The DG ISPR said it was the best possible decision taken by the ICJ because the court upheld Pakistan’s case and did not rejected the punishment. He pointed out that the ICJ neither rejected decision given by the military court nor it ordered release of the Indian terrorist. “The best part of review and reconsideration as asked by the ICJ is that it will be to extent of Pakistan’s own choosing,” he said, adding that review and reconsideration is in-built process when a court awards punishment in any case.

Asif Ghafoor said Pakistan was confident of a good decision in its favour because of the fact that legal process was followed in Jadhav case by the military court, while the legal team also furnished concrete proofs in the ICJ. He said the ICJ also endorsed Pakistan that Kulbhushan was involved in terrorism in Pakistan and he is serving Indian navy officer which India could not deny. He said the ICJ also validated the legality of the punishment saying that the Filed General Court Martial is extension of Pakistan’s judicial system and it was not a separate law.

To a question about dissenting note written by Pakistan Judge Tassaduq Jillani, who was also part of the ICJ panel, he said he touched the legal aspect of jurisdiction of the court.

“But still it is victory of Pakistan because we decided to defend the case while showing respect to the ICJ,” he said. He pointed out that after the Army Chief kept mercy petition of the Indian spy pending because he felt that the case is with the ICJ and it was must to show respect to the court. “It is also respect of law that no statement came from the Pakistan Army till the case was in the ICJ,” he said.

To a question, he said according to Pakistan’s understanding no consular access could be given to any foreigner arrested on charges of espionage, but still mother and wife of Jadhav were allowed to meet him keeping in view the human aspect. He said the Foreign Office had also stated that the case of Jadhav in Pakistan would be taken forward as per law of the land.

Foreign Minister Shah Mehmood Qureshi called the ICJ verdict on Jadhav a victory for Pakistan. The foreign minister tweeted that Jadhav will remain in Pakistan, and will be treated in accordance with the Pakistani laws.