International and Evidentiary Laws implication of ICJ Judgment of Mr Kulbhushan Jadhav’s case

Prologue

1. In my earlier blog, I dealt with the trivia surrounding the ICJ judgement on Kulbhushan Jadhav’s case. Even after the judgement, expectedly, India and Pakistan are continuing to wrangle on the conditions under which ICJ recognized right of Mr. Kulbhushan Jadhav to have Consular Access and his right to have a counsel of his choice. In some ways it is good because so long as the wrangling continues, Mr. Kulbhushan Jadhav’s right to have a natural death will continue except that he will be enjoying that right in a foreign prison. Surely, in due course, Pakistan will review the conviction and sentence, this time, hopefully in a Civilian Court. But even the Civilian Courts of most liberal nations are looking at the issue of terrorism on a different footing. If and when the Review takes place under Pakistani laws, surely the type of evidence that Pakistan has against Mr. Jadhav will definitely come under Global Scrutiny. One of the pieces of evidence that Pakistan will rely on during the future trial is the video confession of Mr. Kulbhushan Jadhav. In fact, India wanted the ICJ to declare that this part of the evidence, namely the video should be excluded in the future trial as it was obtained at a time when Mr. Kulbhushan Jadhav did not have Consular Access. However, the, ICJ specifically rejected the contention and held that this will be a matter for determination by the Pakistani Court (as and when the issue arises before it) in accordance with Pakistani law. All through the case India contended that Mr. Kulbhushan Jadhav suffered a lot of cruelty and ill treatment before he was coerced to make such a confession. But the cruelty, if any, took place within the highly protected four walls of Pakistani prison. It will be impossible either for the Union of India or Mr. Kulbhushan Jadhav to prove that Mr. Kulbhushan Jadhav suffered cruelty and torture as per the ‘beyond reasonable doubt’ doctrine. The unusually long detention without Consular Access merely reinforces the Indian case that there might have been torture. In common law, the doctrine of res ipsa loquitor (Latin for "the thing speaks for itself) will enable India to make a strong case, if the proceedings of civil and not penal. Pakistan would naturally argue that for the allegations of (torture as it involves criminal responsibility of officers and state responsibility to Pakistan,) the standard of proof required should be the beyond reasonable doubt doctrine.

2. At the outset, the ICJ has declared that Pakistan has violated its obligations under the Vienna Convention on Consular Relations and the bilateral treaties in force between both countries. Hence, the Court has declared that Pakistan, under international law, is under an obligation to set right the international wrong. In the Spanish zone of Morocco claims (1923) Judge Huber held that: Responsibility is necessary corollary of a right. All rights of international character involve international responsibility. Responsibility results in the duty to make reparations in obligation if the question is not met.

The PCIJ in the Chorzow Factory Case (1928) said that it is a principle of International Law and even a greater conception of law, that any breach of an engagement involves an obligation to make reparation. In the present case, India demanded ‘restitutio in integrum,’ which in this case means the release of Mr. Kulbhushan Jadhav and his safe passage to India or Iran from where he allegedly came from. But the ICJ rejected this and had directed Pakistan to review the conviction and sentence, and provide Consular Access. Actually, in the above situation, Pakistan has not only violated India’s rights under the Vienna Convection but had also denied Mr. Kulbhushan Jadhav his rights to fair trial. The denial of Consular Access and his earlier alleged confession diminished his right to a fair trial even further. Thus, the rights of two parties (one- state and one individual) have been violated. Assuming that Pakistan should make a reparation for this international wrong who should be the beneficiary of such a reparation? Since only states can be a contesting party before the ICJ, Mr. Kulbhushan Jadhav will not have any standing before it. But the global community should not be oblivious to the most obvious fact that Mr. Kulbhushan Jadhav is that Primary victim of the violation of India’s right to provide Mr. Kulbhushan Jadhav Consular Access.  Would the matter be treated as closed after Pakistan provides Consular Access to India prior to the review of the judgment? In the other words, will Mr. Kulbhushan Jadhav, as an individual, gain anything from the finding that the trial of Pakistan Military Court had been vitiated because of the denial of Consular Access.

IS CONFESSION BY ACCISED, A RELIABLE PIECE OF EVIDENCE?

3. It will be interesting to see how different countries treat the value of confession in determining the guilt of the accused. In India, as in most civilized nations, confessions made to a police officer are inadmissible in a Court of Law. Furthermore, confessions made by an accused to any person (extra- judicial confession), if made during police custody are also inadmissible in law. For example, if a patient who is under arrest confirms to a doctor treating him that his injuries that inflicted by a victim during the accused’s fight with the victim that ultimately resulted in the death of victim, the statement though made to a doctor, is not admissible in an Indian court as the said confession is made during police custody. Actually, under the Draconian laws that seek to prevent terrorism, money laundering, narcotic cases, organized crimes etc, there are exceptions to this rule with the safeguard that these confessions must be recorded by a relatively high officer, (Superintendent of Police) after complying with the necessary procedural safeguards. But then this rule is not complied with in letter and spirit. Even, in the Rajiv Gandhi case, one of  the‘High Officers’ had confessed after 20 years that they did not comply with the procedural safeguards. But it is safe to assume that all over the world, police and defence  service personnel will be more serious to achieve their primary objective, namely securing the conviction of the accused than bothering to provide the procedural safeguards guaranteed in a right to fair trial. Hence, a lot of it is going to depend on the admissibility of the confessional video of Mr. Kulbhushan Jadhav during the future review mechanism.

ADMISSIBLIITY OF ‘RECOVERY’ EVIDENCE IN THE COURSE OF INTEROAGIONS:

4. But the right against the inadmissibility of confession is also subject to another exception: namely, even though a confession in police custody and confessions made to police officers are inadmissible in evidence, if during interrogation, the accused gives information about a material object used in the crimes or about the proceeds of the crime and if the police follow the leads and recover these objects or proceeds of the crime, then such recovery will still be admissible in evidence. If the recovery is credible and connects the accused to the crime, then, even the most liberal courts will be convicting the accused. Of course, I have no access either to Mr. Kulbhushan Jadhav’s confessional video or information about the type of evidence which was available to the Pakistan Military Court. However, as a lawyer, I am aware that police officers in India regularly rough up the accused. Soon the accused starts talking about the crime (after coercion and use of force) which will enable the police to make credible recoveries, which will form the basis of conviction by courts. Assuming that during the course of the trial, the accused produces credible evidence to the effect that he was subjected to third-degree methods or torture, before the police extracted his involuntary statements, Will the court be justified in admitting that evidence and relying on it? A person desiring good criminal law enforcement will say that if the evidence available reflects the true position relating to the commission of crime, then such evidence can be admitted and relied upon. The officer responsible for inflicting third degree is doing something that the state prohibits him to do. His transgression may be a crime or a tort depending on the quality of the police violation. The accused victim can always avail legal proceedings by seeking departmental actions or prosecution against the erring officers. But in an Europe Courts Evidence collected using torture as a general rule,is inadmissible. Of course, U.S laws will depend upon three other facts namely,

i. Where the alleged acts of torture took place?

ii. What was the nationality of the victim?

iii. Who were the victims of torture suspects in terrorism related offences?

 iv)If the torture took place in a foreign land, whether that country’s laws permit use of such third-degree methods?

IS THE RULE AGAINST TORTURE PART OF CUSTOMARY INETERNATIONAL LAW?

5. That brings us to the next question: what would amount to torture? Nowadays, there is a UN Convention for Prohibition of Torture. What constitutes torture varies from time to time, place to place, and person to person. In the Andaman prison, Mr. Savarkar was periodically loaded with iron weights upto 20 kg even when he moved around the prison. Even a revolutionary  like him could not take it for long and soon started petitioning the British empire that if returned to India, he will keep away from political activities. The British duly complied with his demand. Similarly, Mr. V. O Chidambaram, a distinguished lawyer from Tirunelveli who dared to compete with the East India company by running a ferry service to Sri Lanka was convicted. During the rigorous imprisonment, he was compelled to provide human power for extraction of oil from oil seeds in a primitive mechanism used for extracting oils. Some others were made to break hard rocks. Of course, in Mr. Kulbhushan Jadhav’s case, the world has not seen any direct evidence of torture. The next question that will arise is the degree of proof that is needed for establishing the allegations of torture. The British Courts, as a rule do not insist on more than the balance of probability test to arrive at a finding of the existence of torture. Example, if the accused had been held for a long time, and no one had access to the accused during the period of detention and if the accused suffers a general, unexplained deterioration of health during the period of captivity and starts making a statement about his guilt and that of others, then such evidence should be enough for presuming the existence of torture. But after the establishment of American detention camps afterwards, the acts of torture acquired a new dimension. Many of the detenus were beaten, threatened with dogs, deprived of sleep, spent hours of short shackling at freezing temperatures and continuously exposed to deafening music etc. In addition, the American defence forces, with help of their doctors, designed new method of torture called ‘water boarding’ which involved pumping water into the lungs after forcing the head of the prisoner downwards by which one-third of the lungs would be filled with water. This would not leave any tell-tale signs of torture. This will be performed in the presence of a Doctor to ensure that the suspect does not die during interrogation. Nevertheless, even the toughest soldiers will break after 60 to 90 seconds when subjected to water boarding. In these circumstances, one can safely assume that the chances of Mr. Kulbhushan Jadhav proving the allegation of torture in a Pakistan Court does not appear too bright, unless the trial is conducted in an open civilian court. Then again, the question of degree of proof required to prove torture will arise. Normally, in a civilian Criminal Court, when the accused avails the benefit of general or special defences, he will have to prove his defence as per balance of probabilities doctrine. But if he attributes any criminal acts on the part of investigation agencies, the courts can insist that such acts call for a higher degree of proof. One has to see whether the Indian defence team and Mr. Kulbhushan Jadhav will be able to discharge this relatively higher degree of proof.

TREATEMENT OF FOREIGN CONVICTS/SUSPECTS

6. Under International Law, no state can be compelled to grant a better treatment to foreigners than what it grants to its own nationals. The conditions of prisons in developing societies is much worse than in advanced western democracies. Hence, many European nations have entered into a treaty with India to ensure that if their nationals are imprisoned in India then the country having a treaty with India can insist that the sentence of imprisonment can be discharged in the prisons of the convict’s national.  In fact, in the infamous Vijay Mallaya’s extradition trial, the Government of India had designated a special cell in the Mumbai Arthur Road Prison where the condition of detention will be much better than what the locals would have. Under International Law, merely because the state treats its own nationals in a bad and cruel manner, it cannot claim such a right when it comes to foreign suspects. There is an international minimum standard in the treatment of aliens when it comes to granting them a right to fair trial and conditions of detention. Thus, in the circumstances, one can infer that the proposed review mechanism of Pakistan Government in respect of Mr. Kulbhushan Jadhav should comply with this customary International Law norm of the obligation to comply with International Minimum Standards in the treatment of aliens who are suspects. Since Pakistan alleges that Mr. Kulbhushan Jadhav is an Indian spy, the Government of India becomes an indirect party to the proposed review. They should also have their own legal team to clarify whether the accused is their spy. The Union of India should be represented in the proposed Review. I doubt if any lawyer in Pakistan would put his heart and soul into the defence of the suspect as there was abundant pre-trial publicity of Kulbhushan Jadhav’s confession. Normally, in Pakistan, even suspects in Blasphemy cases, (a prosecution seldom initiated in civilised democracies, including India) do not get a good lawyer to defend them. The lawyers who defend such people are threatened and/or killed (Remember  Late.Salman Tasseer). Hence, they should have their own legal team. In fact, an Indian Criminal law specialist will not have any problem as Pakistan is also a Common Law country.

RECENT DEVELOPMENTS

7. Subsequently, developments in India have substantially complicated the future results of Mr. Kulbhushan Jadhav’s Review. India has abolished Article 370 and Article 35A of its own constitution. Constitutionally, India may be (in English may include may not) be well within its rights to amend the constitution. The Union of India had literally decided to divide the state of Jammu and Kashmir into Kashmir, Jammu and Ladakh. This will naturally shrink the original territories of the state of Jammu and Kashmir that existed 70 years ago. People of Ladakh and Jammu wholeheartedly welcome this move of the Union of India, but the Kashmiris in the valley may not be happy with this move. Pakistan is livid about this, and has withdrawn its Ambassador from New Delhi and had prohibited any international trade with India. It has declared that the Indian ambassador in Pakistan should leave immediately and there is sufficient indication that the diplomatic staff in Pakistan will be substantially reduced. Pakistan has declared that 15^th August will be observed as a ‘Black Day’ in Pakistan. All these factors are going to complicate this matter further. Mr. Imran Khan is totally confused and even has sought advice from the previous rulers of Pakistan during his speech in the Parliament. In fact, he went to the extent of asking in Parliament as to whether he should declare a war against India on this ground. Mercifully, none of the members of the Parliament answered his question. Economically and militarily, Pakistan is not in a position to launch a war with India and hope for a win. Hence, it will continue their old games of sneaking in terrorists of different nationalities (Imported and home grown)and ill - treatment of Indian suspects and convicts. Already, there are many people of Indian origin languishing in Pakistani prisons even after they have discharged their full sentence. Hence, the Union of India should after a reasonable waiting period petition the ICJ again for a clarification of its earlier order.

WHO SHOLD GET REPARATION? INDIA OR Mr.KULBHUSHAN?

8.In Chorzow Factory Case, the ICJ held that ‘every act of international responsibility involves an obligation to make reparations.’ The reparations, is usually, received by the state that complained of International responsibility. In this case, Mr. Kulbhushan Jadhav is the first victim of Pakistan violating its international obligation. So actually, he should the beneficiary of reparation if any. The best reparation for him would be a fair trial in a Civilian Court of Pakistan. Pakistan should not only permit Consular Access to India, but also allow India to be represented in Review. India should insist on having international observers present during the trial. Under International Law, a reparation must as far as possible, wipe out all the consequences of illegal acts and re-establish the situation which would in probability have existed if that act had not been committed. The second form of reparation is restitution in kind. Article 7 Part II of the ILC draft Article allows for restitution in kind to the extent it is not materially impossible, would not involve a breach of ‘jus cogens’ and would not involve a burden disproportionate to the benefits which the injured state would get from restitution,instead of compensation and would not seriously jeopardise the political independence or economic stability of injuring state. Whereas the injured state would not similarly be affected if it did not obtain reparation. By this yardstick, Mr. Kulbhushan Jadhav should have a reasonable amount of freedom during proposed Review mechanisms. The third form of reparation is ‘satisfaction of the injured state’. In this kind the injured state gives up non-monetary compensation and accept official apologies, demands punishment of guilty officials or the formal acknowledgment of the character of the Act. Can India in this case seek satisfaction from Pakistan review in Civil Courts under International Scrutiny and demand Pakistan to modify the sentence up to the period undergone by Mr. Kulbhushan Jadhav even if the proposed proposed Review holds Mr. Kulbhushan Jadhav guilty.

Let us hope Mr Kulbhushan gets back home safe.