Kulbhushan Jadhav is an Indian national who is on the death row in Pakistan. He is accused of carrying out spying activities against Pakistan at the behest of India’s intelligence agency, although India has denied all such allegations. However, as per Pakistan claims, the former Indian Navy officer was arrested on March 3, 2016, in Balochistan. Whereas the Indian side has refuted the allegation saying that he was kidnapped from Iran, where he was running a business in the port city of Chabahar after a “premature retirement” from the Navy.
The execution was stayed by Pakistan after India filed an appeal against the judgement at the International Court of Justice (ICJ) on May 18, 2017. The Court pronounced its verdict in the case on July 17, 2019, rejecting India’s appeal for Jadhav’s release and ordered Pakistan to suspend the execution. Here’s the entire proceeding of the International Court of Justice on KulbhushanJadhav case:
On 8 May 2017, India filed an Application instituting proceedings against Pakistan in respect of a dispute concerning alleged violations of the Vienna Convention on Consular Relations of 24 April 1963 “in the matter of the detention and trial of an Indian national, Mr KulbhushanSudhirJadhav”, who had been sentenced to death by the Pakistan military court in April 2017. India claimed that Pakistan had failed to inform without delay, of the arrest and detention of its national. It further contended that Mr Jadhav had not been informed of his rights under Article 36 of the Vienna Convention on Consular Relations and that India’s consular officers had been denied access to Mr Jadhav while he was in custody, detention and prison, and had been unable to converse and correspond with him or arrange for his legal representation. As the basis for the Court’s jurisdiction, India referred in its Application, the Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes as per to the Article 36, paragraph 1, of the Statute of the Court and Article I.
On the same day, India also filed a Request for the indication of provisional measures while requesting the Court to direct Pakistan to “take all measures necessary to ensure that Mr KulbhushanSudhirJadhav is not executed” and to “ensure that no action is taken that might prejudice the rights of the Republic of India or Mr KulbhushanSudhirJadhav with respect to any decision th[e] Court may render on the merits of the case”. And by an Order dated 18 May 2017, the Court directed Pakistan to “take all measures at its disposal” to ensure that Mr Jadhav would not be executed pending a final decision in the case, and to inform the Court of all the measures that will be taken in respect to the implementation of that Order.
Public hearings on the merits of the case were held from 18 to 21 February 2019 and in its Judgment of 17 July 2019, the Court first outlined the background of the dispute, before concluding that it had jurisdiction to entertain India’s claims based on alleged violations of the Vienna Convention. The Court next addressed the three objections to admissibility raised by Pakistan, which was based on India’s alleged abuse of process, abuse of rights and unlawful conduct. The Court concluded that India’s Application was admissible.
Turning to the merits of the case, the Court examined, in turn, each of Pakistan’s three contentions concerning the applicability of the Vienna Convention. Having found that none of the arguments raised by Pakistan could be upheld, the Court concluded that the Vienna Convention was applicable in the case, “regardless of the allegations that Mr Jadhav was engaged in espionage activities”.
Next, the Court examined India’s claim that Pakistan had acted in violation of its obligations under Article 36 of the Vienna Convention, by failing to inform India, without delay, of Mr Jadhav’s detention. The Court observed that Pakistan did not contest India’s assertion that Mr. Jadhav had not been informed of his rights under Article 36, paragraph 1 (b), of the Convention, and thus concluded that Pakistan had breached its obligation under that provision.
As regards to Pakistan’s alleged breach of its obligation to inform India, without delay, of the arrest and detention of Mr. Jadhav, as provided for in Article 36, paragraph 1 (b), of the Vienna Convention, the Court found that since Pakistan indeed had failed to inform Mr. Jadhav of his rights when it was an obligation to inform India’s consular post of his arrest and detention and “to converse and correspond with him and to arrange for his legal representation”. The Court then pointed out that Pakistan had notified India of Mr Jadhav’s arrest and detention on 25 March 2016, some three weeks after his arrest; taking account of the particular circumstances of the case, the Court considered that Pakistan had thus breached its obligation to inform the consular post “without delay”, as required by Article 36, paragraph 1 (b), of the Vienna Convention.
The Court then turned to India’s third claim concerning Pakistan’s alleged failure to allow Indian consular officers to communicate with Mr Jadhav, recalling in this regard that “Article 36, paragraph 1, creates individual rights, which, under Article, I of the Optional Protocol, may be invoked in this Court by the national State of the detained person”. The fact being undisputed that Pakistan had not granted Indian consular officer access to Mr Jadhav and that India’s alleged failure to co‑operate in the investigation process in Pakistan did not relieve Pakistan of its obligation to grant consular access, did not justify Pakistan’s denial of access to Mr Jadhav by consular officers of India. The Court, therefore, concluded that Pakistan had breached the obligations incumbent on it under Article 36, paragraph 1 (a) and (c), of the Vienna Convention, by denying India’s consular officers access to Mr Jadhav, contrary to their right to visit him, converse and correspond with him, and arrange for his legal representation.
India then further requested the Court under restitutio in integrum due to breach of Vienna Convention obligation, that is to annul the decision of the military court and restrain Pakistan from giving effect to the sentence or conviction, and to direct Pakistan to take steps to annul the decision of the military court, release Mr Jadhav and facilitate his safe passage to India. However, the Court found that the submissions made by India could not be upheld and that Pakistan was under an obligation to provide, by means of its choosing, effective review and reconsideration of the conviction and sentence of Mr Jadhav, to ensure that full weight was given to the effect of the violation of the rights outlined in Article 36 of the Vienna Convention.
And so, the International Court of Justice ruled that Pakistan will have to review the entire process of trial and conviction of Kulbhushan Jadhav and to provide India with consular access. Following the order, Islamabad granted consular access to Jadhav and on September 2, 2019, Indian Charge d’ Affaires Gaurav Ahluwalia met Jadhav at a Pakistani sub-jail.
Almost a month after his arrest, Pakistan released a video of Jadhav “confessing” to being a spy. The Ministry of External Affairs, however, has rejected the video saying it was doctored and fake.
In the video, Jadhav said he had been directing various activities in Karachi and Balochistan and that he was still a part of the Indian Navy. And to add to that, Pakistan claims that Jadhav entered Chabahar in 2003 with a fake passport that showed his name as Hussain Mubarak Patel. Pakistani officials claimed that his job was to destabilise Pakistan by strengthening a separatist movement in Balochistan and Karachi.However, India has refuted the claims, saying Jadhav was kidnapped from Iran, where he was running a business.
