Khulbhushan Jadhav: ICJ verdict live updates
The ICJ verdict comes out at 6:30 PM today. Check here for live updates.
Khulbhushan Jadhav, a 49 year old Indian citizen is currently on death row in Pakistan. He has been charged, convicted and sentenced on charges of ‘espionage and terrorism’, specifically for collecting information for India’s intelligence agency, the Research and Analysis Wing. Jadhav is a retired Indian Navy officer, and was convicted after a closed trial in Pakistan, in April 2017. Subsequent to the Pakistan conviction, India moved the International Court of Justice in May 2017. India’s contended that Pakistan repeatedly and egregiously violated the Vienna Convention on Consular Relations, in denying India any consular access to Jadhav. In their claim before the ICJ, India put forth that over 100 attempts were made to meet and access Jadhav, all denied by Pakistan.
While reading out the verdict, the Court also noted that Pakistan made a point during proceedings of India's non compliance with the correct dispute resolution methods. This claim was dismissed by the Court.
"India was under no obligation to consider other dispute settle mechanism prior to instituting proceedings. Thus Pakistan's objection based on alleged non-compliance cannot be upheld."
One point to note is that the court specifically orders that Jadhav be immediately informed of his rights to consular access.
"Consequently, Pakistan must inform Mr. Jadhav without further delay of his rights under Article 36, paragraph 1 (b), and allow Indian consular officers to have access to him and to arrange for his legal representation."
The verdict passed was passed with 15 judges concurring and one dissenting. The dissenting judge was the ad hoc judge appointed for the case, Pakistan's Tassaduq Hussain Jillani. India's Dalveer Bhandari was also part of the Bench.
The relief ordered by the court on the violation of Article 36 of the Vienna Convention is as follows:
"The Court further finds that the appropriate reparation in this case consists in the obligation of the Islamic Republic of Pakistan to provide, by the means of its own choosing, effective review and reconsideration of the conviction and sentence of Jadhav, so as to ensure that full weight is given to the effect of the violation of the rights set forth in Article 36 of the Convention."
The Court held, "Pakistan has not explained how any of the wrongful acts allegedly committed by India may have prevented Pakistan from fulfilling its obligation."
Here, the Court refers to the Clean Hands doctrine once more.
Excerpt from the verdict: "Pakistan's objection based on 'clean-hands' doctrine must be rejected".
The clean hands doctrine is an argument made by Pakistan that says unless India and Jadhav have clean hands in this case, they cannot seek relief. The argument made here is that Jadhav is a terrorist, intended to commit acts of terrorism, was found in possession of questionable material including a fake passport, and therefore, does not have clean hands.
Pakistan claimed, in their closing arguments, that "not one jot of evidence was provided by India to refute the fact that this individual is a terrorist".
Pakistan claims that in the course of proceedings, India has not established that Jadhav is an Indian national at all. He was arrested with the possession of a false passport. Pakistan claims that India has failed to establish his Indian nationality, in failing to provide an original passport or an original birth certificate.
Despite Pakistan's vehement objections to the judgement, India is celebrating:
ICJ delivers ‘justice’ in the true sense of that word, upholding human rights, due procedure and the rule of law— P. Chidambaram (@PChidambaram_IN) July 17, 2019
Pakistan once again, makes the point that Art. 36 of the Vienna Convention, which regulates consular access, is meant to regulate the conduct of sending states in consular relations between states.
The claim is, once again, that Article 36 must be read with customary international law, which would not permit a sending state consular access to an apprehended spy.
The judgement was handed down by a 16 Judge bench of the International Court of Justice. The bench consisted of President Abdulqawi Ahmed Yusuf - from Somalia, Vice-President Xue Hanqin - from China, and judges - Dalveer Bhandari from India, Tassaduq Hussain Jillani from Pakistan, Peter Tomka from Slovakia, Ronny Abraham from France, Mohamed Bennouna from Morocco, Antonio Augusto Cancado Trindade from Brazil, Joan E. Donoghue from USA, Giorgio Gaja from Italy, Julia Sebutinde from Uganda, Patrick Lipton Robinson from Jamaica, James Richard Crawford from Australia, Kirill Gevorgian from Russia, Nawaf Salam from Lebanon, Yuji Iwasawa from Japan, and Philippe Gautier from Belgium
Pakistan claims that India has made a "bootstraps" argument. Pakistan claims that no substantive relief can be granted to Jadhav, and India does not have the jurisdiction to claim relief - therefore, India has muddled the issue of jurisdiction, invoking obsolete provisions of consular access.
Despite the fact that the ICJ just ruled on its own subject matter jurisdiction, Pakistan has made the claim that there is an inherent lack of jurisdiction here. The claim is that this is because India made their plea on the basis of imminence - that Jadhav's death sentence was to be immediately executed. However, during proceedings, India stated that the sentence would only be carried out in the next six months. This timeline, according to Pakistan, takes away from the criminal appellate jurisdiction of the ICJ.
India had sought the specific annulment of the military court decision convicting Jadhav. The court held that India's plea on this point could not be upheld.
The obligations on Pakistan are three-fold:
A stay on Jadhev's execution;
Granting consular access to Jadhev from India;
Provide effective review and consideration of the conviction and sentence.
Although the Court has ruled in favour of India on consular access and notification, the Court has rejected other remedies sought by India, including the question of his release.
The video of the confession, Pakistan has stated, is widely available for public access, wherein anyone can see that Jadhev has admitted to terrorism and espionage.
Pakistan has claimed that Jadhev's confession, admitting to terrorist activity, was in no way coerced. They had provided a video of the confession to the court, but the court declined publicly playing the video.
The Court unanimously found in favour of India on the question of admissibility, as well as on it's own jurisdiction.
It found in favour of India on a 15 - 1 vote on the issue of the breach of the Vienna Convention.
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