1. The recent judgement of the
International Court of Justice in the case between the arch-rivals of South
Asia has brought a lot of cheers to the family of Mr Kulbhushan Jadhav, the
Indian Ministry of External Affairs and
the migrants who were compelled to make a living in foreign lands. The object
of this blog is not to analyse the legal niceties and the global implications
of this Judgement. Instead, this will focus more on the trivia and other
incidental issues that surround the judgement. The International Court of
Justice, is an Adjudicatory Court modelled after the ‘Continental or Civil Law
System Courts’. To begin with, the Statute of the International Court of
Justice itself makes it clear that the judgement of ICJ and the Principles of
Law decided by ICJ are binding only on parties to the dispute. It will not bind
the third parties. Yet, the ICJ as a court has not been averse to citing passages
from earlier judgments made by ICJ and PCIJ. Secondly, since ICJ is a civil law
court, there is no system of ‘stare- decisis’ and the
system of hierarchy of courts. As a rule, earlier judgments have no role in ICJ’s
decisions on current disputes.
2. Another comment made about the
ICJ’s adjudicatory powers is that the court itself does not provide a mechanism
for implementing the orders of ICJ. This does not mean that the state that won
a case in ICJ does not have any recourse to ensure respect and observance of
the ICJ orders. In fact, the state can avail the enforcement measures enumerated
under Articles 92 to 94 of the Charter of the United Nations. But, when the
matter is referred to the Security Council for seeking enforcement of an ICJ
order, the members of the Security Council, especially the Permanent Members
once again treat it as an International Political issue and they have no qualms
about using or abusing their power of Veto. In fact, many of the previous and
current judgments of the ICJ have not been honoured and the parties who lost
their case in the ICJ have openly declared their intention of not implementing
or respecting the ICJ judgment. In the first case, namely, the Injuries case the ICJ held that the State of Italy is bound to compensate the victims who
were members of peacekeeping forces in Israel. Notwithstanding the adverse
judgement, Italy has not honoured the ICJ verdict which did not direct Italy to
make any political decision, but merely to pay the money to the victims or the
families who were injured in action as part of the United Nations Peace Keeping force.
The litigations initiated by India against South Africa regarding policies of Apartheid are a
case in point. Though these judgments did not receive immediate compliance, the
pressure tactics adopted by the rest of the world ensured the dismantling of the
policy of Apartheid. Very recently, China suffered a judicial defeat in ICJ over
its exclusive claims to the South China Sea area and its artificial Islands. China
has declared that the judgment of ICJ does not make any difference to its
claims. Similarly, Iran which was ordered by the ICJ to release the American
diplomatic hostages held captive in Iran postponed the release of the diplomats
for a long time. Crippling economic sanctions that the United States of America
imposed on Iran ultimately ensured the safe return of the American hostages. It
is another matter that these hostages were handsomely compensated, not in pursuant
of an ICJ judgement, but in accordance with a United States statute out of the
Iranian funds seized around the world. Recently, when the United States of
America pulled out of the multilateral treaty with Iran to prevent Iran from breaking the threshold of Uranium enrichment,
it was the turn of Iran to seek provisional measures from the ICJ which the ICJ
did grant. When the United States of America breached the ICJ’s provisional measures, Iran did
not have the necessary economic clout to enforce ICJ orders. Considering past
history, it is gratifying to know that Pakistan has declared its intention to
honour the ICJ verdict and has undertaken to review the Pakistani Military
Court judgement that imposed death punishment on Mr Kulbhushan Jadhav.
3. Some essential facts:
a. Mr Kulbhushan Jadhav was an
officer commissioned for the defence of India. After retirement, he settled down
in Iran in an area bordering Balochistan. Apparently, he was a commercial person
having contracts with the Iranian Government. According to the Government of
Pakistan, Mr Kulbhushan Jadhav was arrested by Pakistani forces on the 3rd
of March 2016. According to India, Mr Kulbhushan Jadhav was kidnapped from
Iran and from there he was taken to Pakistan and detained for investigation. On
the other hand, Pakistan contended that Mr Jadhav was arrested for illegally
entering Pakistani territory and was in possession of an Indian Passport
bearing the name ‘Hussain Mubarak Patel’.
b. On April 8th 2016,
Pakistani Police negotiated a First Information Report and the Police carried
out further interrogations that resulted in a ‘voluntary confession’
from Mr Kulbhushan Jadhav. The circumstances behind the recordings of
confessions are not known. There was no consular access before confession.
c. The case against Mr Kulbhushan
Jadhav started on 21st September 2016, before the Field General
Court Marshall under section 59 of the Pakistani Army Act of 1952 and under
section 3 of the Official Secrets Act 1923. During the trial, a law officer of
the Pakistan Judge Advocate’s Branch was part of the case. Apparently, Mr
Kulbhushan Jadhav could not get the services of competent counsel of his choice.
The Governments of India and Pakistan had been exchanging ‘notes verbale’
regarding Consular Access. Apparently, the Government of Pakistan did not
consider it necessary to grant this.
d. On 10th April 2017,
Mr Kulbhushan Jadhav was sentenced to death. There was, of course, an appeal
to the Military Appellant Court and thereafter to the President of Pakistan. On
23rd June 2017, Mr Kulbhushan Jadhav made an appeal to the Chief of the Army Staff after the accused’s appeal to the Military Appellant Court was
rejected. The press release also referred to another confessional statement
that raised many queries about the date and circumstances of the confession
that was recorded. On November 10th 2017 Pakistan informed India
that Mr Kulbhushan Jadhav’s wife and mother would be permitted to visit him in
the presence of a diplomatic representative on humanitarian grounds. A visit
did take place on 25th December 2017. This was after the conviction
and Mr Kulbhushan Jadhav did not have the benefit of Consular Access before he
was sentenced by the Military Court.
The aftermath of the Military
Court’s Death Sentence
4. Predictably, the judgment
received a lot of attention in India. Around the world, any Military Court’s
record in providing a fair trial before conviction has always been viewed with suspicion.
To begin with, the detenu or the accused did not get a lawyer of his choice.
Assuming he gets a lawyer of his choice, the conditions of detention may not be
congenial for instructing the lawyer. That is why a Consular Access to an alien
detenu is very important in ensuring that the right to a fair trial is not denied
to the accused. Normally the Military Courts do not follow the procedural safeguards
adopted by normal Criminal Courts. While relying on the confession of the
accused, even Indian draconian laws such as POTA (Prevention of Terrorism Act 2002) that
provide for relying on the confession of the accused a semblance of procedural
safeguard to ensure that the confession is voluntary and that the maker of the
confession has not been induced to make the confession. Apparently, Mr
Kulbhushan Jadhav did not have these minimum rights before the Military Courts
passed the sentence of death.
5. In the past, India has always
been wary of availing the option of settlement of an International Dispute
through adjudication by ICJ. India’s experience with ICJ in the 20th
century was, at best, a matter of scepticism. In fact, India has been a
reluctant customer of ICJ beginning from the days of the Portuguese complaint
regarding the denial of rights of passage in the seas adjoining Goa to the more
recent complaint of Greece
against India in the matter relating to the trial of the Greece marines
involved in the shooting of Indian fishermen whom the Marines mistakenly believed
to be terrorists. Just prior to Mr Kulbhushan Jadhav’s case, there were three litigations (1) (2) (3). One of
them was settled by a diplomatic compromise between the parties. In two other cases, the ICJ held
that it has no jurisdiction to adjudicate. India, during the 20th
Century, claimed to be a non-aligned nation though it was perceived to be pro-
USSR before the latter’s collapse. Since ICJ, then, was more an instrumental of
Western Democracies, India probably had its own reservations against settlement
of disputes by the ICJ. But in the 21st century, there was a
dramatic shift. India is resurgent in terms of economy and global status. To
give an illustration, an Indian candidate to the ICJ was elected defeating a
British nominee to the same post. After the collapse of the USSR, and the declining
importance of Pakistan to the United States, India today, is more pro- the United
States. Despite periodic skirmishes, by and large, India and China have a
stable political and growing economic relationship. Besides, India’s
experience with Permanent Court of Arbitration (PCA) and WTO dispute has
enabled the Indian Foreign Ministry to seek settlement of an International Dispute
in accordance with the law, by impartial adjudication.
6. Unlike in the past, India had its
own legal team. Mr Harish Salve, Undoubtedly the superstar lawyer of India
presented its case. During the pre-trial stage, the ICJ ordered provisional
measures to suspend the Death Sentence of Mr Kulbhushan Jadhav. While Mr
Harish Salve charged Rs.1/ for representing India, Pakistan hired a UK lawyer
of Pakistani Origin. Members of the India Legal and Treaties Division and Diplomats
of the Ministry of External Affairs were also a part of the legal team. In
the end, one can safely say that the litigation has become one more feather,
among the multi feathered professional cap of Mr Harish Salve.! ICJ gave a
balanced judgement which the parties have agreed to implement immediately. It
held that Pakistan violated its obligation according to the Vienna Convention
on Consular Relations by denying Mr Kulbhushan Jadhav consular access at the earliest
point namely, the conclusion of the Military Trial. At the same time, the ICJ
did not accept India’s contention that the confession of Mr Kulbhushan Jadhav
should be excluded from the determination of the guilt of the accused, for
according to ICJ, that would have to be decided under Pakistani law in the
future review mechanism. The only silver lining for India is that, in the past,
the Pakistan Higher Judiciary Courts have found that their own Military Courts
had not provided a minimum safeguard to ensure a fair trial and so set aside several
sentences in such judgements (about 75). It also rejected India’s prayer that
Mr Kulbhushan Jadhav should be released forthwith and be given a safe passage
to India. However, after the ICJ’s judgement mercifully, the life of Mr
Kulbhushan Jadhav is safe. Pakistan has every right to try him again on the
available evidence and this time India will have a chance to provide him consular
guidance and legal assistance. If the diplomatic staff do their job well, as
they have done in the past, there is a chance of Mr Kulbhushan Jadhav
returning to India.
7. One more fact that is noteworthy
is that the ICJ’s decision in this regard is unanimous. Of course, the lone
Pakistani Ad hoc Judge dissented. There are newspaper reports that Pakistan is
not averse to releasing and granting safe passage to Mr Kulbhushan Jadhav if
India acknowledges him as a spy and grants similar undisclosed favours to the
Pakistani spies in India. It is said that a Middle Eastern nation friendly to
both countries is likely to mediate the dispute to bring about an out of court
settlement. Such options have to be carefully explored to ensure that the
publicity surrounding the trial of Mr Kulbhushan Jadhav does not become a
point of no return of endless litigations that will eventually postpone the
safe release of Mr Kulbhushan Jadhav. The Pakistani Judiciary can also modify
the sentence of Kulbhushan Jadhav to the period of detention already undergone
and bury this dispute so that more pressing matters can be resolved, always subject
to India’s insistence that before any peace negations begin, there must be no
Pakistan sponsored terrorist activities on Indian territory, including Jammu
and Kashmir.
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