Analysis of the Jadhav case in the ICJ

Jadhav’s case is based on numerous controversial and contentious premises, especially because it is yet another instance of extreme rivalry between the two nuclear-armed neighbours.

Kulbhushan Sudhir Jadhav, an Indian national and a secret military agent was arrested in Balochistan on 3 March 2016 on allegations of espionage and terrorism against Pakistan. Owing to Jadhav’s two confessional statements, one in March 2016 and the other in June 2017, Jadhav was sentenced to death in April 2017 for espionage. Meanwhile, India insisted that Jadhav was not guilty, classified this decision as a “pre-meditated murder”, and turned to the International Court of Justice (ICJ) for support and help to invalidate Jadhav’s pronouncement of guilt. As a consequence, the implementation of Jadhav’s death sentence was postponed. Approximately one year later, on Wednesday 17 July 2019, the ICJ pronounced its judgment on Jadhav’s case based on the public hearings that began on 18 February 2019. In its judgment, the ICJ had ruled that Jadhav be allowed consular access immediately, and asked Pakistan to ensure effective review and reconsideration of his conviction and sentences. This was in accordance with Article 36 of the the Vienna Convention on Consular Relations 1963 (VCCR). 

Article 36 states that “when a national of a foreign country is arrested, they must be informed of the right to have their country’s consulate notified and should also have the right to regular consultation with their consulate’s officials during their detention and trial.” Perhaps, through this verdict, the ICJ sought to fill all the possible gaps; it wanted to allow a fairer and a more acceptable trial to take place; it wanted to make up for matters that previously went unnoticed when dealing with Jadhav. The fact that Jadhav’s case has so many areas of analyses, each depicting a unique picture of the case, is noteworthy. Initially, Pakistan argued that Jadhav shouldn’t be allowed consular access.

Tassaduq Hussain Jillani, ad-hoc judge and the former Chief Justice of Pakistan was the only one in the “16-member world court” who did not “endorse several parts of the Judgment and some fundamental points.” He argued that according to an agreement with India in 2008, cases that involved espionage and spying were to be exempted from such an access. Hence, Pakistan did not do anything wrong by not providing consular access to Jadhav and by withholding the details of his detention from India for some time. He was confident that Pakistan has not violated Article 36 of the Vienna Convention. This is because “Pakistan has already in place the procedures necessary for ensuring the effective review and reconsideration of the conviction and sentence of Mr. Jadhav.” Hence, the essence of his argument could be that Article 36 of the Convention shouldn’t be applied to cases that involved undercover and destructive espionage activities; the similar logic was being applied to Jadhav’s case. Nevertheless, the Court pointed out that “the agreement did not override the Convention but was supplementary to it.”

On the other hand, India argued that Jadhav was not an Indian spy; it pointed out that “he was kidnapped from Iran.” It also wanted the ICJ to nullify Jadhav’s trial. It viewed Pakistan’s non-compliance with Article 36 of the Convention as a violation of international law. Even though, it is important to understand and evaluate India’s side of the story in depth to conduct Jadhav’s trail according to the Court’s verdict, nevertheless, Jadhav’s two confessional statements could make it extremely difficult for India to justify Jadhav’s innocence in any way.      

Moreover, it is interesting how the Court’s verdict on Jadhav’s case is being perceived as a victory for both sides.

Pakistan is content with the Court’s verdict because it did not declare Jadhav innocent and did not clear him of all the charges straightaway. Rather, it demanded a reassessment of Jadhav’s case in light of Article 36 of the Convention. In fact, the Prime Minister of Pakistan, Imran Khan welcomed the decision made by the Court because it did not “acquit, release and return” Jadhav. Jadhav is responsible for carrying out heinous crimes against Pakistan and its people. Hence, as long as the intensity of his crimes is being taken into account, there should be no harm in re-examining Jadhav’s case according to the Court’s verdict.

Another advantage for Pakistan pertaining to a review of Jadhav’s case is that Pakistan has to only reconsider in accordance with Article 36 of the Convention – that is, it has to allow consular access to Jadhav. This would allow Jadhav to communicate frequently with his consulate official. However, the Court’s decision that, “the obligation to provide effective review and reconsideration can be carried out in various ways. The choice of means is left to Pakistan”, is perhaps the best part of this judgment.   

The ICJ’s verdict on Jadhav is a victory for India too. This is precisely because it helped put off the execution of Jadhav’s death sentence until Pakistan undergoes another round of review and reconsideration. This might have put India in a favorable condition, but only temporarily. This is because the Court has “rejected all other remedies sought by India, which included the annulment of the military court decision convicting Jadhav, restricting Pakistan from executing the sentence, securing Jadhav’s release and ordering his return to India.” This, many could suppose, is a big setback for India.  

As of now, Pakistan has decided to tackle Jadhav’s case “as per law.”

Nevertheless, Pakistan also believes that Jadhav should be held accountable for his horrific and reprehensible crimes against the people of the country.

Under no circumstances should such acts of brutality be ignored or simply forgiven. Furthermore, India is most likely to urge Pakistan to review Jadhav’s case in an open civilian court instead of a closed military court. Pakistan has already agreed to review and reconsider Jadhav’s case as per the Court’s instructions. However, Jadhav himself has admitted that he was involved in many disruptive activities in Pakistan. Hence, even if India’s demands are accommodated in dealing with Jadhav and proceeding according to the Court’s decision, evidences against Jadhav are evident.

The author, Samrah Alam, is a research intern at the PIIA. She is pursuing her masters degree at NYU in Global Affairs.  


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Filed under Courts, Criminal Justice, Criminal law, Discussion, ICJ, India, Pakistan, Politics

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