On May 18, the International Court of Justice (ICJ) granted India’s request for indication of provisional measures or in simple words, it issued a stay order against Kulbhushan Jadhav’s execution till the proceedings concluded. Jadhav was arrested in Balochistan last year and accused of spying. A military court sentenced him to death in April. Pakistan had vehemently opposed India’s request to the ICJ on a number of grounds, and the ‘popular’ expectation, as presented in the Pakistani media, was that it would be turned down.
This is perhaps why Pakistani media had a bad reaction to the stay order with the loss at first stage is being seen as a national insult. The government has been assailed for submitting to the jurisdiction of and appearing before the court, for choosing what some people say is the wrong lawyer who did not use up his full time to argue, for colluding with the Indian government, and mishandling the case otherwise etc. etc.
But why has there been such a negative reaction and what are the issues related to international law. As a result of this negativity it is now politically difficult to take a different position. But this is precisely why a well-reasoned non-nationalist position based on the legal nuances should be adopted. It may be argued that Pakistan’s case is generally weak and that the reaction is the outcome of the Pakistani state’s denial of its international obligations, the national security dimension of the case, and the propensity for opinion makers, especially the lawyers specialising in international law, to take a patriotic position as opposed to one based on the law.
The ICJ refers to the 1963 Optional Protocol Concerning the Compulsory settlement of Disputes and finds that prima facie it does have the jurisdiction to decide it. It was precisely for this reason that the United States, after failing to comply with the ICJ's decisions in cases relating to consular relations in death penalty cases, withdrew from the Protocol in 2005 even though it had been the first to invoke it before the world court to successfully sue Iran for the taking 52 US hostages in 1979
The background
Jadhav’s case surfaced in March 2016, when the ISPR released his video-recorded extra-judicial confessional statement. This was an obvious attempt to capture the ‘popular’ imagination by presenting the case on TV as a national security issue, which it perhaps was, as all the circumstances made known by Pakistan led to the conclusion that Jadhav was a spy.
What it did not convey, however, was a clear picture of his activities as an alleged spy who participated in terrorism. The confession gave a vague idea of his activities which led to the killing of Pakistanis in Balochistan.
His case has since been tried under the Pakistan Army Act 1952, by a military court, i.e. the Field General Court Martial, which found Jadhav guilty under section 3 of the Official Secrets Act 1923 and sentenced him to death in April this year. This is not the first time that an Indian has been sentenced to death for alleged terrorist activities. But it is probably the first time that a military court has tried, convicted and sentenced one for spying and terrorism.
The consular access
India’s case before the ICJ rests mainly on the grounds that during the detention, investigation and trial against Jadhav, Pakistan failed to provide him access to consular officers of India despite repeated requests. Pakistan doesn’t deny this. In failing to do so, India contends, Pakistan has failed to fulfill its international obligation under article 36 of the Vienna Convention on Consular Relations 1963. Both India and Pakistan are parties to the Convention. Article 36 of the convention requires state parties to the convention to mandatorily allow consular access to the sending state to its nationals detained in the host states.
Pakistan’s position is that it had intimated India in April 2017, after the conviction and sentencing, that it may consider the Indian request for consular access only if India assisted Pakistan in further investigations, thus adopting a position which makes consular access conditional. The wisdom in asking for assistance in an investigation after the conclusion of trial is open to question.
Pakistan has argued
ICJ doesn’t have jurisdiction because in March 2017 Pakistan submitted a declaration excluding a number of issues from the scope of the court’s authority, including all matters related to Pakistan’s national security.
The ICJ doesn’t have jurisdiction because Pakistan and India have a bilateral agreement which eliminates the court’s jurisdiction in matters relating to security and grants discretion to each one of the two states to examine the matter on its merits to the exclusion of the Vienna Convention.
The Vienna Convention on Consular Relations is not applicable to foreign nationals who are charged with the offence of spying. Therefore, no violation of the Convention has taken place. Thus, there is no jurisdiction for the ICJ to hear the case.
Some Pakistani international law experts seem to agree with the state’s position. For instance, Sikander Ahmed Shah, an academic in international law, in an article published in Dawn on May 13 contended that Jadhav’s case had to be treated as an exception to the Vienna Convention because he is a spy and his case fell under article 5 of the Geneva Conventions 4 and the Additional Protocol 1 to the Conventions. This argument is surprising because exception in these treaties created for spies, who may not be given consular access, actually relate to a) situation of occupation and b) situation of armed conflict, respectively. Both the Geneva Convention IV and the Additional Protocol are irrelevant to Jadhav’s case because, according to Pakistan’s claim, Jadhav was arrested in Balochistan which is neither an occupied territory nor a venue of armed conflict between India and Pakistan. Pakistan did not raise this argument before the court. Another international law expert, Oves Anwar, currently director of the Research Society of International Law, raised a similar argument in a piece on the RSIL website on May 17, while drawing an analogy between espionage during armed conflict and peacetime.
This, however, is not the case. The relevant part of article 36 of the Vienna Convention, which is the basis of the Indian claim before the ICJ, is: “[C]onsular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgement…”
In peacetime, there is no restriction on a foreign prisoner’s right to consular access and the consular officer’s right to access the prisoner, even if the detention is in pursuance to espionage charges. The exception created in international humanitarian law is for different circumstances when there is an immediate risk of intelligence to be used against the interests of the host state.
The jurisdictional dispute
Pakistan’s position that the ICJ does not have jurisdiction because the court’s compulsory jurisdiction under article 36 of the ICJ Statute stands narrowed down by Pakistan’s declaration submitted last March, is also without substance, because this argument fails to see that India has brought the case to the court under the compulsory jurisdiction stemming from article 1 of the Optional Protocol to the Vienna Convention which says:
Disputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the Court by an application made by any party to the dispute being a Party to the present Protocol.
Both India and Pakistan are parties to the 1963 Optional Protocol Concerning the Compulsory settlement of Disputes. The court, while granting relief to India in its application for provisional indications, refers to this aspect and finds that, prima facie, the court does have the jurisdiction to decide the dispute. It was due to this compulsory jurisdiction of the court (under article 1 of the protocol) that the United States, after failing to comply with the ICJ’s decisions in cases relating to consular relations in death penalty cases, withdrew from the Protocol in 2005 even though the US was the first to invoke it before the world court to successfully sue Iran for taking 52 US hostages in 1979.
The 2008 agreement
Pakistan and India signed a bilateral agreement on the treatment of each other’s prisoners in 2008.
Pakistan’s third main ground to deny the court’s jurisdiction is based in its understanding of a bilateral agreement on the treatment of each other’s prisoners. India and Pakistan signed the agreement in 2008. Pakistan asserts that the 2008 agreement supersedes the Vienna Convention on Consular Relations and the Optional Protocol under it. This, however, doesn’t appear to be agreeable in view of the language used in the 2008 agreement as well as the Vienna Convention. The Agreement nowhere suggests, expressly or implicitly, that it exists to the exclusion of the Vienna Convention. Furthermore, and more importantly, article 73 of the Convention says: Nothing in the present Convention shall preclude States from concluding international agreements confirming or supplementing or extending or amplifying the provisions thereof.
It would appear from the wording of article 73 that while the Convention does not prohibit states from making international agreements on subjects covered by the Vienna Convention, such agreements may only be for the purpose of reaffirming or extending the scope of the purposes of effective implementation of various provisions of the Convention. This necessarily means that no other agreement may be concluded between states parties in violation of the Convention. Therefore, the right to consular access which may lead to the grant of a foreign prisoner’s right to an independent legal counsel to represent him in the court of law, may not be restricted or forfeited under the Vienna Convention.
Pakistani lawyers appearing in the media have overstressed the importance of the 2008 Agreement in total disregard of the Vienna Convention. They have also failed to consider the language of the Agreement as well as the circumstances in which the two countries concluded it. The 2008 Agreement was concluded after some court judgments in India and Pakistan highlighted the plight of the Indian and Pakistani prisoners, mainly fisherfolk, in each other’s prisons. The main emphasis of the Agreement is to expeditiously process cases of nationals caught on the wrong side of the law on each other’s territory. Article VI of the 2008 Agreement which refers to cases of arrests, detention or sentences made on ‘political or security grounds’ does by no stretch of the imagination allow a reading in negation of the Vienna Convention.
It may be concluded that the court is likely to find Pakistan in breach of its obligations under the Vienna Convention. What should India expect as relief from the court? India has asked for a lot, including an annulment of the death sentence. This may only be possible through judicial review. An appeal against the military court’s verdict is possible only before a higher military forum, the Chief of Army Staff, and not before an independent judicial forum.
Lawyer Oves Anwar contends that the maximum India should expect is that Pakistan may be asked to ‘review and reconsider’ the Field General Court Martial proceedings with a view to assessing whether granting consular access would have made a difference to the outcome of the Jadhav case—a conservative view, no doubt. In fact, Pakistan can do much more or at the least facilitate in doing much more through appropriate legal course.
The way ahead
Other arguments on the court’s limited jurisdiction vis-à-vis its ability to enforce its judgments have been raised. For instance, it has been said that the court’s decisions are not binding, which is absolutely wrong. The ICJ’s decisions in compulsory jurisdiction are binding. The ICJ’s advisory opinions rendered for other UN bodies are not binding for the parties engaged in the dispute such as the court’s opinion in response to the General Assembly’s request on the legal consequences of the construction of a wall by Israel in the Occupied Palestinian Territory (2004).
Reference has also been made by lawyers that the US did not follow the court’s verdicts in similar cases. Special reference has been made to the case of Avena. The fact is that in that case and other similar cases, the US federal government did show its intention to give effect to the court’s decision by issuing an executive order but for the constitutional complexity and lack of legal power it could not implement the court’s decision. The same constitutional complexity does not exist in Jadhav’s case. India’s main plea in the case is that India should be allowed to access and communicate with Jadhav immediately. The Federal Government of Pakistan can immediately change the law relating to consular access, the Consular and Diplomatic Privileges Act 1972, to provide Indian consular officers access to Jadhav. The only step it has to take is to add article 36 of the Vienna Convention to the second schedule of the 1972 Act.
This is likely to pave the way for a review, though not an appeal, to be filed against Jadhav’s conviction and sentence before the high courts on the grounds of a lack of jurisdiction and malafides. For instance, one ground could be airing Jadhav’s confession even before the trial started, a violation of international standards of the right to a fair trial. Several other grounds can be raised depending on the facts of the case. For instance, it could be looked into whether there was adequate legal basis for assigning the case to Field General Court Martial. The relevant law provides a rather narrow scope for such a course.
If nothing works, the presidential power to grant pardon, reprieve, suspend, or commute any sentence passed by any court is unfettered under article 45 of the Constitution of Pakistan. Since a critical constituent of the right to a fair trial has been violated, the president would be justified in pardoning Jadhav despite his sentence. But for this to happen there has to be clarity as to the obligations Pakistan has to fulfill under the public international law and international human rights standards set forth in the international treaties. For this to happen, informed public debate must be allowed. Journalists and lawyers, especially international law experts, have a higher burden to discharge. They must shed their nationalist prejudices and present a fair picture and possibilities of moving ahead in international relations rather than locking us in another irresolvable issue by violating international law.
The writer is a lawyer and tweets at @LegalPolitical
