Importantly, the ruling said the stay on the death sentence pronounced on Jadhav must remain. “The court considers that a continued stay of execution constitutes an indispensable condition for the effective review and consideration of the conviction and sentence of Jadhav,” the court said.
Rejecting all major contentions put forward by Pakistan, the ICJ said the Vienna Convention was applicable in the Jadhav case regardless of allegations that he was engaged in espionage. “Pakistan must inform Jadhav without further delay of his rights under Article 36 (of the Vienna Convention) and allow Indian consular officers to have access and arrange for his legal representation,” it said.
Read ICJ’s full verdict
Indicating its unhappiness with the judicial process regarding Jadhav, the ICJ said, “The court considers it imperative to re-emphasise that the review and reconsideration of the conviction and sentence of Jadhav must be effective.” This amounts to an indictment of Jadhav being tried before secret military ‘black’ courts where the evidence against him and his legal defence remains unknown.
The decision means that Jadhav will continue to be protected from the death sentence as Pakistan may find it difficult to risk international criticism by ignoring the ruling. Though Pakistani commentators sought to play down the setback, arguing that the ICJ did not order Jadhav’s release, the court clearly said Pakistan was “under obligation” to review the conviction.
We welcome today’s verdict in the @CIJ_ICJ. Truth and justice have prevailed. Congratulations to the ICJ for a verd… https://t.co/CeVWOHxDt8
— Narendra Modi (@narendramodi) 1563375686000
The ICJ rejected Pakistan’s contention that it had no jurisdiction and that India’s complaint was not admissible. It also held that the 2008 India-Pakistan bilateral agreement in no way trumped Islamabad’s obligations under the Vienna Convention. TOI had reported on Wednesday that the ICJ was likely to find that Pakistan had violated Article 36 of the Vienna Convention in denying consular access to Jadhav.
Although Kulbhushan Jadhav will not be returning to India any time soon, which would have been our best case scenario, it is a relief indeed that ICJ has directed Pakistan to suspend and review his death sentence. It has also directed Pakistan to provide him consular access – in accordance with international diplomatic norms, this is something India has been asking for ever since he was arrested by Pakistan in 2016. This is the very least that Pakistan should do right away.
PM Narendra Modi welcomed the verdict and said saying truth and justice had prevailed. “Congratulations to the ICJ for a verdict based on extensive study of facts. I am sure Kulbhushan Jadhav will get justice. Our government will always work for the safety and welfare of every Indian,’’ he said. Foreign minister S Jaishankar tweeted that he had spoken to Jadhav’s family. In Pune, Jadhav’s family and friends celebrated the ruling.
The MEA too welcomed the ruling, saying justice had been delivered. “We note that Pakistan is under an obligation to inform Jadhav without further delay of his rights and to provide India consular access to him in accordance with Vienna Convention. We expect Pakistan to implement the directive immediately. We will continue to work vigorously for Kulbhushan Jadhav’s early release and return to India,’’ MEA spokesperson Raveesh Kumar said.
The ICJ ruling could mean that Pakistan will need to try Jadhav in a more transparent manner. Even if the prospects of the Indian national getting fair trial in any form are dim, it will mean a scrapping of the military court verdict. It remains to be seen whether Pakistan adheres to the ruling or drags its feet over any effective review as ordered by the ICJ.
The court’s judgment was also in line with its earlier rulings in the Avena and LaGrand cases, both related to alleged violation of the Vienna Convention, where it had held the US guilty.
While the court unanimously found that it had jurisdiction to entertain India’s plea, its other rulings were delivered 15 to 1. The dissenting judge was a Pakistani national, Tassaduq Hussain Jilani, an ad hoc judge brought in to give representation to Pakistan. Following the judgment, the Pakistani foreign office, in a terse statement, said, “Having heard the judgment, Pakistan will now proceed as per law.”
The case has seen unrelenting efforts by India. After Pakistan informed India of Jadhav’s arrest, India asked for consular access and followed it up with numerous demarches and letters by then foreign minister Sushma Swaraj. India filed a case against Pakistan at the ICJ on May 8, 2017. Pakistan allowed Jadhav’s mother and wife to meet him in jail in December 2017. The Indian legal team was led by jurist Harish Salve. India has insisted on Jadhav’s innocence, maintaining he was kidnapped from Iran, and that Pakistan had not clarified the circumstances of his arrest.
The ICJ held that the appropriate reparation in this case meant “that full weight is given to the effect of the violation of the rights set forth in Article 36 of Vienna Convention’’. India’s whole case at the ICJ was built around Pakistan’s violation of the same article of Vienna Convention by not informing India of Jadhav’s arrest without delay, by keeping him in dark about his rights and also by denying him consular access.
While the court left the choice of an “effective’’ review to Pakistan, it also held the obligation to provide effective review and reconsideration was “an obligation of result” which “must be performed unconditionally”. Consequently, the court said, Pakistan shall take all measures to provide for effective review and reconsideration, including, if necessary, by enacting appropriate legislation.
This is significant as India has been worried about what it described as the biased nature of Pakistani courts, even though it had called for a fresh civil trial of Jadhav if it wasn’t possible to secure his release. Though refraining from asking Pakistan, as India had pleaded, to conduct a fresh trial in a civil court, it noted, 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.’’
In Video:ICJ suspends Kulbhushan Jadhav’s death sentence, grants consular access