ICJ orders Pakistan to stay execution of Jadhav pending its final decision in the matter

Kulbhushan Yadav
Kulbhushan Yadav
In a significant development, the International Court of Justice (ICJ) today asked Pakistan to take all measures at its disposal to ensure that former Indian Naval officer Kulbhushan Jadhav is not executed pending the final decision in the proceedings intiated by India in the matter.
Mr. Jadhav has been sentenced to death by a military court in Pakistan for his alleged involvement in espionage and sabotage activities against that country and India had moved the world court at The Hague in The Netherlands against the verdict.
"Pakistan shall take all measures at its disposal to ensure that Mr. Jadhav is not executed pending the final decision in these proceedings and shall inform the Court of all the measures taken in implementation of the present Order," Judge Ronny Abraham, president of the ICJ, said, reading out the unsnimoud decision of the 11-judge bench.
"The Court also decides that, until it has given its final decision, it shall remain seized of the matters which form the subject-matter of this Order," he said.
The International Court of Justice (ICJ) is the principal judicial organ of the United Nations. The Court has a twofold role: first, to settle, in accordance with international law, legal disputes submitted to it by States (its judgments have binding force and are without appeal for the parties concerned); and, second, to give advisory opinions on legal questions referred to it by duly authorized United Nations organs and agencies of the system.
Earlier, on May 9, the ICJ had asked Pakistan to stay the death penalty awarded to Mr. Jadhav on India's request to it, in proceedings intiated on May 8, to indicate provisional measures.
Among other things, India had requested that, “pending final judgment in this case, the Court indicate that the Government of Pakistan take all measures necessary to ensure that Mr. Jadhav is not executed."
Accordingly, Judge Abraham had addressed on May 9 an urgent communication to the Prime Minister of Pakistan, with a copy to the Government of India, in the proceedings instituted by India against Pakistan.
Article 74, paragraph 4, of the Rules of Court stipulates that “[p]ending the meeting of the Court, the President may call upon the parties to act in such a way as will enable any order the Court may make on the request for provisional measures to have its appropriate effects", the release explained.
Pakistan has accused Mr. Jadhav of being an agent of India's Research and Analysis Wing (RAW) and claimed that he was arrested on March 3, 2016 through a counter intelligence operation from Mashkel, Balochistan.
Pakistan said last month that Mr. Jadhav was tried by a military court under section 59 of Pakistan Army Act (PAA) 1952 and Section 3 of Official Secret Act of 1923 and it found him guilty of all the charges. 
"He confessed before a Magistrate and the Court that he was tasked by RAW to plan, coordinate and organize espionage / sabotage activities aiming to destabilize and wage war against Pakistan by impeding the efforts of Law Enforcement Agencies for restoring peace in Balochistan and Karachi," a press release from Pakistan's Inter-Services Public Relations (ISPR) had said on April 10 this year.
India had reacted sharply to the announcement and told Pakistan clearly that, if the sentence were carried out, the Government and people of India would regard it as a case of premeditated murder.
India has maintained that Mr. Jadhav was kidnapped last year from Iran and that his subsequent presence in Pakistan had never been explained credibly. 
The Government of India, through its High Commission in Islamabad, had repeatedly sought consular access to him, as provided for by international law. Requests to that effect were formally made 13 times between 25 March 2016 and 31 March 2017. This was not permitted by the Pakistani authorities, India has said.
India has also said that the proceedings that led to the sentence against Mr. Jadhav were farcical in the absence of any credible evidence against him. It said its High Commission had not even been informed that Mr. Jadhav was being brought to trial.
In its plea before the ICJ, India said it was not informed of Mr. Jadhav’s detention until long after his arrest and that Pakistan failed to inform the accused of his rights. It further alleges that, in violation of the Vienna Convention, the authorities of Pakistan are denying India its right of consular access to Mr. Jadhav, despite its repeated requests. 
India also pointed out that it learned about the death sentence against Mr. Jadhav from a press release. 
India submitted that it has information that Mr. Jadhav was “kidnapped from Iran, where he was carrying on business after retiring from the Indian Navy, and was then shown to have been arrested in Baluchistan” on 3 March 2016, and that the Indian authorities were notified of that arrest on 25 March 2016. 
India also filed a request for the indication of provisional measures, stating that Mr. Jadhav would be executed unless the court indicated provisional measures directing the Government of Pakistan to take all measures necessary to ensure that he is not executed. It said Mr. Jadhav's execution “would cause irreparable prejudice to the rights claimed by India”.
India further indicated that the protection of its rights is a matter of urgency as “without the provisional measures requested, Pakistan will execute Mr. Kulbhushan Sudhir Jadhav before the Court can consider the merits of India’s claims and India will forever be deprived of the opportunity to vindicate its rights”. 
India said it was possible that the appeal filed by the mother of the accused on his behalf may soon be disposed of.
On the question raised by Pakistan about whether the ICJ had the jurisdiction prima facie to hear the case, Judge Abraham noted that India had cited Article I of the Optional Protocol to the Vienna Convention, which provides that the Court has jurisdiction over “disputes arising out of the interpretation or application of the [Vienna] Convention”. 
The Court noted that the Parties do indeed appear to have differed, and still differ today, on the question of India’s consular assistance to Mr. Jadhav under the Vienna Convention. It further noted that the acts alleged by India, such as the alleged failure by Pakistan to provide the requisite consular notifications with regard to the arrest and detention of Mr. Jadhav, as well as the alleged failure to allow communication and provide access to him, appear to be capable of falling within the scope of the Convention. 
"In the view of the Court, this is sufficient to establish that it has prima facie jurisdiction under Article I of the Optional Protocol," it said.
The Court further observed that the existence of a 2008 bilateral Agreement between the Parties on consular relations does not change its conclusion on jurisdiction.
The Court observed that the rights to consular notification and access between a State and its nationals, as well as the obligations of the detaining State to inform the person concerned without delay of his rights with regard to consular assistance and to allow their exercise, are recognized in Article 36, paragraph 1, of the Vienna Convention, and that India has alleged violations of this provision. In the view of the Court, therefore, it appears that the rights alleged by India are plausible, Judge Abraham said.
The Court said it considered that the measures requested by India are aimed at ensuring that the rights contained in Article 36, paragraph 1, of the Vienna Convention, are preserved. Therefore, a link exists between the rights claimed by India and the provisional measures being sought, it said.
The Court considered that the mere fact that Mr. Jadhav is under a death sentence and might therefore be executed is sufficient to demonstrate the existence of a risk of irreparable prejudice to the rights claimed by India. The Court further observed that Pakistan has indicated that any execution of Mr. Jadhav would probably not take place before the month of August 2017. 
"This means that there is a risk that an execution could take place at any moment thereafter, before the Court has given its final decision in the case. The Court also notes that Pakistan has given no assurance that Mr. Jadhav will not be executed before the Court has rendered its final decision. In those circumstances, the Court is satisfied that there is urgency in the present case," he said.


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