Home BUSINESS Kulbhushan Jadhav case: How India won the legal battle | India News

Kulbhushan Jadhav case: How India won the legal battle | India News


NEW DELHI: After a Pakistani military court awarded Kulbhushan Jadhav the death sentence, India was left with no other option but to approach the ICJ for relief in 2017. India maintained all along that Jadhav was a civilian who was kidnapped and moved to Pakistan by armed groups and that Islamabad was using him to blame India for its problems in Balochistan.
According to India, Jadhav was denied the right to be defended by a legal counsel of his choice. His conviction and death sentence was based on “confessions” taken in captivity, India maintained.

India’s case was all along built around the fact that Pakistan was in breach of Article 36(1) (b) of the Vienna Convention on Consular Relations (VCCR) which obliged Pakistan to inform India of the arrest of an Indian national “without delay”.
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Jadhav was purportedly “arrested” on March 3, 2016, and it was only on March 25, 2016, that the Pakistani foreign secretary informed the Indian high commissioner in Islamabad of this “arrest”. According to Indian authorities, Pakistan never offered any explanation as to why it took over three weeks to inform the Indian high commissioner of Jadhav’s arrest.

Pakistan violated the Vienna Convention also by not informing Jadhav of his rights and by denying Indian officials access to him.
The entire trial and sentence by a military court, which was based on “confession taken under custody”, without adequate legal representation was farcical, according to Indian authorities.
It was said to be in brazen defiance of the rights and protections provided under the Vienna Convention and the international law, including ICCPR (International Covenant on Civil and Political Rights). The jurisprudence on ‘human rights’, including under the ICCPR, recognises ‘due process’ rubric.
Perhaps the most important aspect was the way India countered Pakistan’s claim that the 2008 bilateral agreement overrode the Vienna Convention.
According to India’s argument, the Vienna Convention recognises that states may have bilateral arrangements that “amplify or supplement” the principles engrafted in the multilateral convention/treaty. However, it said Article 73(2) of the Law of Treaties did not recognise dilution of the provisions of the multilateral convention by bilateral treaties.
India successfully convinced ICJ that Pakistan’s attempt to claim an exception to the rights under Article 36 of Vienna Convention suggesting that such rights are not to be made available to an individual against whom there is a prima facie case of “espionage” was not tenable.
India found the use of military courts for trial of civilians violative of process standards. “Trial of foreign national civilians by military courts is per se violative of the ICCPR, and of minimum standards recognised as ‘principles of international law’,” said an official.

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