Saturday, December 07, 2019

Posted at: Jul 17, 2019, 10:30 PM; last updated: Jul 17, 2019, 10:48 PM (IST)

What the ICJ ruling on Kulbhushan Jadhav means

What the ICJ ruling on Kulbhushan Jadhav means
People wait before the issue of a verdict in the case of Indian national Kulbhushan Jadhav by International Court of Justice, in Mumbai, July 17, 2019. Reuters

Sandeep Dikshit
Tribune News Service
New Delhi, July 17

The International Court of Justice’s (ICJ) verdict on the Kulbhushan Jadhav case was a partial victory for both sides with a tilt towards India, if the claims and submissions both sides are taken into consideration.

But at the end of the day, a retrial and subsequent judgement by the Pakistani courts will again bring the case back to life.

At the ICJ, India won consular rights that it had pressed for and got Jadhav’s execution stayed. The ICJ also frowned on Pakistan failing to read Jadhav his rights and neither informing India immediately upon his arrest not permitting Indian officials to meet him. Pakistan has taken comfort in the fact that ICJ did not acquit or release Jadhav thus rejecting the main Indian prayer.

Though ICJ found Pakistan guilty of breaching its obligations under the Vienna Convention, it did not grant the main relief sought by India of seeking Jadhav’s release and transfer to India as well as seeking a retrial by a civilian court.

Both countries had upped their stakes in the case as is evident that India had six diplomats at the court, including an Ambassador, an Additional Secretary and the Joint Secretary in charge of the Pakistan Desk. Pakistan too had pressed into service five diplomats, including an Ambassador and the Director General (South Asia). 

The Indian side was helmed by Senior Advocate Harish Salve along with two Indian advocates while Pakistan fielded its Attorney General besides a battery of local and foreign lawyers.


March 3, 2016: Pakistan arrests Jadhav for spying in Balochistan

April 10, 2017: Jadhav found guilty and sentenced to death

May 8, 2017: India initiates proceedings before the ICJ

May 15, 2017: ICJ indicates provisional measures, including stay on Jadhav’s execution

July 17, 2019: ICJ stays Jadhav’s execution, asks for review

At the outset, the ICJ made it clear that Jadhav should have been given consular access because there is no reference to spies being excluded in the Vienna Convention. Pakistan had based its denial of access on the understanding that the Convention precludes visiting rights to spies. Due to limitations of ICJ’s jurisdiction in such cases, it did not go through the evidence against Jadhav to determine his guilt or innocence.

The Indian plea stood on four pillars: (i) violation of Vienna Convention had rendered the sentence by the Pakistan military court infructuous; (ii) restoration to the original position; (iii) restrain Pakistan from convicting Jadhav and, (iv) trial before civilian courts after excluding Jadhav’s confession.

Due to jurisdictional issues, the ICJ could only decide whether Pakistan had breached Article 36 of the Vienna Convention. Pakistan sought to rely on the 2008 Indo-Pak treaty which asks for “arrest made on security grounds” to be examined on its merits. But the ICJ rejected Pakistan’s contention that the 1988 treaty overrides obligations under the Vienna Convention.


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