by Archit Shukla 26 June 2020
Introduction
The Republic of India and the Islamic Republic of Pakistan is considered to be arch neighbouring rivals since the inception of Pakistan in 1947. The 2nd and 5th most populous countries in the world, divided by a Radcliffe line has many border disputes regarding Kashmir, many cultural differences, and ideological differences. India is a secular country with a large Muslim minority, while Pakistan with a Muslim majority and a large minority of Hindus. Due to abandonment and under-representation in the British Raj, the Allama Muhammad Iqbal called for an amalgamation of North-West Muslim Majority Indian states. Muhammad Ali Jinnah, the founder of Pakistan presented the Muslim League’s Lahore Resolution of 1940, to bring forward an idea to make a different country for the neglected Muslims in British India. India is the biggest democracy in the world that has made a significant impact on the emerging world powers. But Pakistan is considered to be an asylum for the terrorist. Bin Laden, the mastermind of the September 11 attack, was assassinated by the United States in a remote location located in Pakistan. Pakistan still remains a safe harbor to the regionally focused terrorist groups.
Jadhav (India v. Pakistan)
In April 2017, an Indian national, Mr. Kulbhushan Sudhir Jadhav was sentenced to death by the military court of Pakistan. Jadhav was a retired Indian Navy officer, arrested from Iran on suspicion of “espionage and terrorism” and was declared as an Indian Spy after a closed trial by Pakistan. India knocked on the door of ICJ for an immediate suspension of the death sentence. India also sought relief for the “egregious breach” of the key provisions of two multilateral treaties. India claims that Pakistani Military Court was in brazen defiance of Article 36 of the Vienna Convention on Consular Relations of 1963 and Article 14 of the 1966 International Covenant on Civil and Political Rights.
Mr. Jadhav was in Pakistan’s custody from 3rd March 2016, arrested from Balochistan, after illegally entering Pakistani territory as claimed by Pakistan. But according to India, he was kidnapped from Iran, where he owns a cargo business after retiring from the Indian Navy. Pakistan claims that, at the time of arrest, Mr. Jadhav was in a possession of Indian passport named “Hussein Mubarak Patel”.
After that Pakistan raised the issue with the High Commissioner of India in Islamabad and released a video in which Mr. Jadhav appears to confess to his involvement in acts of espionage and terrorism in Pakistan at the behest of India’s foreign intelligence agency “Research and Analysis Wing”. Jadhav was charged with terrorism and sabotage in a First Information Report filed against him by the provincial Balochistan government. India’s High Commission requested consular access to Jadhav “at the earliest” to “the said individual” using a Note Verbale. India’s request for consular access to Jadhav was denied 16 times by Pakistan. On July 22 2016, Mr. Jadhav made a confessional statement, which was allegedly recorded before a magistrate.
Mr. Jadhav was charged under Section 59 of the Pakistan Army Act of 1952 and Section 3 of the Official Secrets Act of 1923. On March 21 2017, Pakistan was ready to give consular access to Jadhav with a condition that India will give assistance in the investigation process and early dispensation of justice. But India replied that consular access to Mr. Jadhav would be an indispensible pre-requisite to substantiate the facts and understand the circs of his presence in Pakistan. But on April 10 2017, a death sentence was passed by the military court, based on a Confession taken in captivity. Pakistan believed that India’s involvement in activities aimed at “destabilizing Pakistan”.
The Applicability of Article 36 of the Vienna Convention on Consular Relations
Article 36 talks about the facilitation of consular functions relating to nationals of the sending States. India demanded consular access to Jadhav and was denied with a reason that the person is charged with espionage. India has dragged Pakistan for violating Article 36 of the Vienna Convention on Consular Relations. Pakistan reiterated that a bilateral agreement on consular access was a key pact in the Jadhav’s case, instead of the VCCR signed in 2008. The 2008 Agreement constitutes a subsequent agreement within meaning of the Article 73, paragraph 2, of Vienna Convention. But India contended that the bilateral agreement on consular access signed in 2008 cannot jettison the VCCR agreement signed in 1963. Also, India stated that any domestic law cannot be a defense for violation of international obligation.
India also cited two ICJ orders in the cases of La Grand and Avena, where based on Article 1 of the Optional Protocol, the court accepted the jurisdiction on Article 36 (1) of the Vienna Convention on Consular Relations. In Avena case, US violated Article 36 by not providing any consular access to Mexico, where many people were on death rows in various American states.
There is no reference to the cases of espionage in the travaux préparatoires of the Vienna Convention. The Article 36 does not exclude the persons suspected of espionage. ICJ is of the opinion that the consular access is expressly regulated by the Article 36, and not any customary international law, which terminates the applicability of the bilateral agreement on consular access, signed in 2008 between India and Pakistan. The Point (vi) of 2008 Agreement does not displace obligations under Article 36 Vienna Convention and Thus, it is applicable in the present case. India was under no obligation in the present case to consider other dispute settlement mechanisms prior to instituting proceedings before the Court on 8 May 2017.
Therefore, By an Order on 18 May 2017, the Court indicated the following provisional measures that 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.
Alleged violations of Article 36 of the Vienna Convention on Consular Relations
India in its final submission states that it is not known whether Pakistan informed Mr. Jadhav of his rights under Article 36, paragraph 1 (b) of the Vienna Convention. In spite of that, the conduct of Pakistan, at one point, suggested in public statements that the detainee was not at all entitled to consular access, which strongly indicates that it did not inform Mr. Jadhav of his right to communicate with the Indian consular post.
In the present case, it is undisputed that Pakistan has not granted any Indian consular officer access to Mr. Jadhav. Also, there was a delay of some three weeks between Mr. Jadhav’s arrest on 3 March 2016 and the notification made to India on 25 March 2016. But article 36 clearly states that the information about the arrest should be given ‘without delay’ is to be understood as ‘immediately upon arrest and before interrogation’. The Court considers that the fact that the notification was made some three weeks after the arrest, in this case, constitutes a breach of the obligation to inform “without delay”, as required by Article 36, paragraph 1 (b), of the Vienna Convention.
India requested for a Direct a trial under the ordinary law of Pakistan after excluding Jadhav’s confession that was recorded without affording the consular access and in strict conformity with the provisions of the ICCPR, with full consular access and with a right to India to arrange for his legal representation. India argues that Pakistan’s criminal justice system by way of trial in the military courts does not satisfy the minimum standards of due process in its application to civilians
Remedies
Pakistan can be described as a heedless State which has violated international treaties and obligations to which it is a signatory in the Jadhav case. The death sentence passed by the military court is based on a Confession taken in captivity. The Court concludes that Pakistan has breached the obligations incumbent on it under Article 36, paragraph 1 (a) and (c), of the Vienna Convention, by denying consular officers of India access to Mr. Jadhav, contrary to their right to visit him, to converse and correspond with him, and to arrange for his legal representation.
There was a 16-member bench constituted to deal with this case where the bench voted 15-1 to direct Pakistan to undertake an “effective review and reconsideration” of the conviction and sentence of Jadhav and also to grant consular access to India without further delay. With this case, India showed the real face of Pakistan and their cravenness to punish an innocent who is originally been kidnapped from Iran. The use of the military court to punish a civilian of another country is violative of due process standards. The basic rights are not made available to an individual whom there is a prima facie case of espionage is not tenable. Hence, for India and Mr. Jadhav, Justice prevailed.