International Court of Justice stays execution of alleged Indian spy by Pakistan with conditions

The Hague, May 18 (newsin.asia): The International Court of Justice (ICJ), the principal judicial organ of the United Nations, on Thursday told Pakistan that it must “take all measures at its disposal” to ensure that Kulbhushan Sudhir Jadhav, of Indian national, is not executed pending a final judgment of the court in a case of alleged spying for India.

In its order indicating provisional measures (such as a stay), the court stated that the Government of Pakistan shall inform it of all measures taken in implementation of that order ,which was issued unanimously.

On May 8, 2017, India filed a request for the indication of provisional measures (stay) in regard to alleged violations of Article 36 of the Vienna Convention on Consular Relations of April 24, 1963 with respect to Jadhav, an Indian national who had been sentenced to death by a Pakistani court for alleged spying for India.

Court has Jurisdiction

The court began by considering Pakistan’s plea on jurisdiction, whether it has jurisdiction prima facie to hear the case. India had sought to ground the court’s  jurisdiction in 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”.

In this regard, the court noted that the parties appear to differ on the question of India’s consular assistance to Jadhav under the Vienna Convention. It further noted that the acts alleged by India, i.e., the alleged failure by Pakistan to provide the requisite consular notifications with regard to the arrest and detention of 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 Vienna convention.

The court stated that this is sufficient to establish that it has prima facie jurisdiction under Article I of the Optional Protocol. 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.

Rights claimed by India Are Plausible   

The court then turned to the question whether the rights alleged by India are at least plausible. It 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.

India had alleged violations of this provision. In the view of the court the rights alleged by India are plausible.

Claim To Provisional Measures Validated  

The court then focused on the issue of the link between the rights claimed and the provisional measures requested.

It felt that the measures requested are aimed at ensuring that the rights contained in Article 36, paragraph 1, of the Vienna Convention, are preserved.

Therefore, it concluded that a link exists between the rights claimed by India and the provisional measures being sought.

Urgency Recognized

The Court then examined whether there is a risk of irreparable prejudice and urgency. It felt that the mere fact that 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 observed that Pakistan has indicated that any execution of Jadhav would probably not take place before the month of August 2017. But 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 noted that Pakistan had given no assurance that Jadhav will not be executed before the court has rendered its final decision.

In those circumstances, the court felt that there is urgency in the present case and issued a stay order with conditions.

According to Pakistan, Kulbhushan Jadhav, a former officer in the Indian navy, was arrested in March 2016 in Balochistan for spying for India.But according to India, he had retired from the navy and was a businessman in Iran when he was abducted by Pakistani agents and made to confess that he was spying in Balochistan and Karachi and fomenting militancy there.

There has been a long-running conflict in Balochistan between Pakistani security forces and a separatist movement.

In April, a Pakistani military court sentenced him to death, but no date was set for the execution. Pakistan has said Jadhav’s conviction and sentence remain open to appeal within  42 days.

India’s representative at the ICJ hearing, Deepak Mittal, described the charges against Jadhav as ‘concocted’.

Responding, Pakistan’s agent before the court, Mohammad Faisal, said India’s complaint was “political theater” and the court “should not exercise any jurisdiction in the case”.

Pakistan argued that consular access is not an absolute right under the Vienna treaty, and that a 2008 bilateral treaty between India and Pakistan supersedes it anyway.

The court had said it would set a date for ruling “as soon as possible”.

(The picture at the top shows the International Court of Justice at The Hague in session. Photo courtesy ICJ)