Kulbhushan Jadhav Case (India v. Pakistan)

the legal quorum

Published On: 19th June, 2024

Authored By: Shivam Raj
THE ICFAI UNIVERSITY, HYDERABAD
  1. What is ICC?

In The Hague, Netherlands, the International Criminal Court (ICC) is a stand-alone international institution. It was created to bring criminal charges against individuals for the most heinous crimes of global concern, including crimes against people, crimes against humanity, genocide, and violence. The Rome Statute, which was approved on July 17, 1998, and went into effect on July 1, 2002, governs the International Criminal Court.

  1. Importance of ICC

In the international endeavor to guarantee justice and responsibility for the most heinous crimes, the International Criminal Court (ICC) is crucial. The International Criminal Court (ICC) holds those guilty of war crimes, genocide, crimes against humanity, and crimes of invasion accountable, upholding international law and human rights norms in the process. Its existence discourages impunity and fosters a culture of accountability, acting as a potent deterrent against future crimes.

  1. What is the Rome Convention?

The Rome Convention, sometimes referred to as the Rome Statute, was ratified on July 17, 1998, and went into effect on July 1, 2002. It created the International Court of Justice (ICC). A long-lasting, autonomous court was established by this historic treaty to try cases including offenses against humanity, war crimes, ethnic cleansing, and hostility. The Rome Statute, which describes the ICC’s jurisdiction, organization, and duties, offers the legal foundation for its activities. It requires member nations to cooperate in order to support inquiries and convictions.

  1. What is the Vienna Convention?

The Vienna Convention on Diplomatic Relationships (1961) and the Vienna Convention on the Legal Status of Treaties (1969) are two of the most significant international treaties that are frequently referred to by the term “Vienna Convention.” In order to guarantee efficient diplomatic communication and operation, the Vienna Convention on Foreign Relations creates a structure for interactions between nations, defining the advantages and disadvantages of diplomatic missions. The Vienna Protocol on the Law of Treaties codifies customary global legislation on treaties and offers extensive principles for the formation, comprehension, and execution of contracts among nations. Both treaties are essential for fostering global partnership, stability, and legal certainty because they guarantee that diplomatic relations and treaty responsibilities are controlled by internationally recognized, uniform, and unambiguous principles.

  1. Ratification of Both Rome and Vienna Conventions

Member nations have demonstrated an intense dedication to upholding international law and standards by ratifying the Vienna Conventions as well as the Rome Statute, which created the International Criminal Court (ICC). States legally agree to be bound by these accords’ terms under their own legal frameworks by ratifying them. Adopted in 1998 and coming into effect in 2002, the Convention of Rome offers a legal framework for the prosecution of those guilty of aggression, war crimes, crimes against humanity, and genocide. Countries that ratify the ICC commit to working with it on inquiries and cases in order to strengthen justice for grave crimes committed across borders worldwide.

In the matter of the Kulbhushan Jadhav Case (India Vs Pakistan)

Material facts

Kulbushan Jadhav was detained by Pakistan on March 3, 2016, and on March 24, 2016, Pakistan’s armed forces and justice organizations alleged Jadhav of being a spy who traversed across from Iran and been apprehended in Balochistan, in southern Pakistan. Meanwhile, Pakistan also released a video in which Jadhav can be heard apologizing for the accusations made against him.

The Pakistani Minister of External Affairs issued a “Letter of Assistance for Criminal Investigation against Indian National Kulbhushan Sudhair Jadhav” to the Indian High Commission in Islamabad on January 23, 2017, however, they did not get a reply. India stated on March 29, 2016, that as Jadhav is a former navy officer and was forcibly abducted from Iran by Pakistani officials, all of the accusations made against him are unfounded. Furthermore, the Indian government requested consular access for Kulbushan Jadhav from Islamabad; however, this request was turned down. Pakistan rejected as many as 16 petitions from New Delhi in a single year. Kulbushan Jadhav was condemned to death by the Pakistani Military Court on April 10, 2017, for the crimes of “Espionage and Terrorism.”

The Indian government sought diplomatic permission for Jadhav on April 14, 2017, and wanted a genuine duplicate of the allegations document and decision of the Pakistani military court that had condemned him to death. Infuriated by Pakistan’s attitude and insufficient collaboration in providing Kulbushan Jadhav with consular accessibility, India filed a case with the International Court of Justice in The Hague, Netherlands, on May 8, 2017, challenging the ruling of Pakistan’s Military Court, which had given Mr. Jadhav the death penalty. The execution of Jadhav was stopped by the ICJ the very following day.

Following extensive talks and discussions between New Delhi and Islamabad, Pakistan on November 10, 2017, granted permission for Mr. Jadhav’s spouse to come over on “humanitarian grounds” and expanded the invitation to include his mother. It also guaranteed India the guests’ security and independence of transit. In summary, the Military Court of Pakistan condemned Kulbhushan “Sudhir Jadhav,” a 50-year-old retired Indian Navy official, to death. Jadhav was being punished to death on the grounds of “Espionage and Terrorism.”

Issues

“The issues that arise for consideration of this Court are:”

Questions of law

  • Is the punishment imposed by the Military Court of Pakistan illegal?
  • Is Pakistan’s refusal to provide Kulbushan Jadhav consular access a violation of the Vienna Convention on Consular Relations (VCCR) and the International Covenant on Civil and Political Rights (ICCPR)?
  • Whether the International Court of Justice (ICJ) was authorized to oversee this case and consider an application within it?
  • Is there a circumstance when terrorism or espionage makes the Vienna Convention on Consular Relations implicitly inapplicable?
  • Is it appropriate for Pakistan to insist that India support the inquiries in1    q          `            `           `to the Jadhav issue, since this will be a prerequisite for allowing consular access to India under Article 36, or is the commitment under Article 36 unconditional?
  • Does the 2008 bilateral agreement that India and Pakistan signed replace the Vienna Convention on Consular Relations that was previously in place?
  • Does the bilateral agreement’s protection of rights restrict the applicability of the VCCR?
  • Does Article 1 of the Options Protocol grant the ICJ jurisdiction over the current case?

Arguments on behalf of the Republic of India

In an appearance on behalf of the Republic of India, the counsel, Mr. Harish Salve, Senior Advocate, filed actions towards Pakistan “under the provisions of Article 36, paragraph 1, of the Constitution of the ICJ and Article 1 of the Optional Protocol to the Vienna Convention on Consular Relations With regard the mandatory resolution of Conflicts (Optional Protocol), claiming breaches of the VCCR by Pakistan.”

According to reputable interpretations of the Vienna Convention on the Law of Treaties and fundamental principles of treaty law, such as Article 41(1), the duties under the VCCR “may be modified or reinforced by unilateral agreements, but they may not be altered or destroyed.” Furthermore, the reservations listed in Article 36(2) of the ICJ law are separate from and do not serve as a requirement for using the power under Article 36(1) of the ICJ law; as a result, the VCCR is the legitimate body to consult when discussing diplomatic access issues. Failure of Pakistan to provide consular access to Kulbushan Jadhav (violation of Article 36 of the VCCR)

Credible readings of the Vienna Convention on the Law of Treaties and basic tenets of treaty law, including Article 41(1), state that the obligations under the VCCR “might be adjusted or expanded by unilateral arrangements, but they might not be changed or abolished.”

Moreover, the VCCR is the appropriate authority to contact when considering matters pertaining to international access since the prohibitions specified in Article 36(2) of the ICJ law are distinct from and are not required as a condition for exercising the power under Article 36(1) of the ICJ law.

Since consular access is a necessary condition for guaranteeing a fair trial in compliance with international law and international humanitarian law, the right to legal counsel cannot be withheld under any circumstances.

Abuse of rights

The attorneys argue that the Islamic Republic of Pakistan’s initial denial of all legitimate rights is proof positive that there has been egregious misuse of such rights. The granting of diplomatic access is one of the primary requirements for a free and fair trial since, in addition, it is a grave mistake and entirely inconsistent with the principles of the International Covenant on Civil and Political Rights (ICCPR). Consequently, Pakistan’s argument that consular access can only be granted if the other nation acknowledges and presents evidence that the detainee is a citizen of that nation is utterly irrational. In this particular case, Pakistan has consistently stated that Kulbushan Jadhav is an Indian national, and by doing so, they are also guilty of denying India consular accessibility at a time when the issue of ethnicity was, on the face of it, crystal clear.

Remedies

The Counsels, speaking on behalf of India, were extremely explicit in the latter section of their arguments about what they wanted to get out of this ICJ settlement. The counsels presented India’s requested remedies from the Islamic Republic of Pakistan, which were as follows:

The International Covenant on Civil and Political Rights (ICCPR) and the Vienna Convention on Consular Relations (VCCR) were both violated by the Pakistani military court’s sentence, which was declared to be in “brazen defiance” of each of these agreements because Pakistan had denied India consular communication with Jadhav. The penalty of death was suspended with immediate effects in accordance with the ruling of the ICJ.

Pakistan needs to overturn the ruling of its Military Court and take steps to free Kulbushan Jadhav.

The Court should further declare that the government of India possesses the right to “Restitution in integrum,” and this is the remediation of the detainee’s position as it was before the unlawful detention, meaning that Kulbushan Jadhav should be deported back to India. The sentence handed down by the army tribunal was in flagrant contravention of the VCCR, ICCPR, and the principles of international law.

Article 36(2) of the ICJ legislation permits reservations that are nearly as admissible and accepted as situations under Article 36(1) of the statute. As a result, if a treaty or agreement already exists and has legal power behind it, it automatically becomes enforceable against both parties.

Because the parties have previously signed a bilateral agreement in 2008, India is thus unable to assert the jurisdiction of Article 36 of the VCCR in this particular case.

Abuse of process

The Counsels for the Islamic Republic of Pakistan claimed that India had legitimately abused its power by violating certain processes that were part of its procedural rights.

Second, by preventing Pakistan from using alternative dispute resolution procedures as specified in the aforementioned Articles, India contravened the terms of Articles 2 and 3 of the alternative protocol to the VCCR. It is anticipated that both parties to advise or inform one another that a disagreement has arisen and that it must be resolved within two months, not by going before the ICJ but rather through another suitable tribunal or forum. These two actions unequivocally declare that India has broken the law and, in addition, that they are unable to bring Pakistan to ICJ jurisdiction.

Abuse of rights

In their subsequent section of comments, the Counsels for Pakistan argued that India ought to be held responsible for violating human rights by refusing to cooperate with additional inquiries into the case of Kulbushan Jadhav.

First of all, India flagrantly failed to clarify Jadhav’s citizenship by arranging for his real Indian citizenship to be issued in his designation, despite having a clear need to do so.

Second, India’s icy attitude toward Pakistan’s request for assistance in conducting additional criminal investigations into Mr. Jadhav’s actions. Pakistan had asked India to cooperate with those inquiries.

Thirdly, there is ample evidence to support the claim that India helped Jadhav carry out a number of espionage and terrorist-related operations. India gave Kulbushan Jadhav an “untrue wrap identify real passport” for violation of several anti-terrorism regulations. As a result, the attorneys representing Pakistan would ask the International Court of Justice to use a resolution from the United Nations Security Council against India in relation to this matter because what they did amounted to a blatant violation of rights.

On behalf of the Islamic Republic of Pakistan, the Counsels kindly argue that only the fact that their clients are accused of engaging in claimed illegal acts is the basis for India’s claim/application’s validity. Furthermore, the lawyers asked the International Court of Justice to reject India’s position, arguing that since they should be entering the court with clean hands, the legal doctrines of “ex turpi causa [non oritur actio]” and “ex injuria jus non oritur” additionally apply in this instance.

As counsel for the Islamic Republic of Pakistan, we therefore respectfully suggest to the Hon. International Court of Justice that, given India’s lack of cooperation in Pakistan’s searches into Jadhav’s case and its failure to establish Jadhav’s national identity as proof that Pakistani officials are not recognizing himself as an Indian, the petition for consular access is denied, since proving one’s valid nationality is a requirement for obtaining consular access.

Concrete judgment

The International Court of Justice rendered its decision with a resounding 15:1 majority. The majority’s ruling focused primarily on the issue of a potential VCCR Article 36 violation. The court noted that the primary point of contention between the two nations is Kulbhushan Jadhav’s “consular assistance” with his arrest, incarceration, trial, and punishment. In addition to being participants in the Vienna Convention on diplomatic relations for the Mandatory Resolution of Conflicts, both nations have ratified the Vienna Convention on the Additional Protocol to the Viennese Agreement on Diplomatic Affairs without any objections or declarations.  The court noted that, aside from the VCCR, no additional international agreements are violated and that the case’s sovereignty is derived from Article 1 of the “Optional Protocol.” As a result, as claimed by the State of India about the VCCR breach, it has legal authority under Article 1 of the Optional Protocol.

India’s petition was accepted despite the “three complaints filed by the State of Pakistan concerning the misuse of authority, abuse of rights, and illegal activities by the State of India being dismissed.” In addition, the court determined that Pakistan had violated the terms of the protocol and had not complied with Article 36 of the VCCR. By failing to notify India concerning Kulbhushan Jadhav’s capture and incarceration, as well as by preventing Jadhav from being seen by Indian consular officers, the State of Pakistan violated his rights as stipulated in Article 36(1)(b). All of them were included in the VCCR a contract, to which Pakistan acquiesced without any disclaimers or concerns. Pakistan has therefore been judged to be in breach of international law by the court.

Ratio Decidendi

In view of the facts presented and precedents drawn:

In response to Pakistan’s argument, the Court clarified that VCCR Article 36 excluded from its purview “definitely believed groupings of individuals, such as those believed of covert operations,” when studying in its “the setting and in relation to the intent and objective of this Convention,” and that the ICJ lacks the authority to hear cases in which the detainees have committed crimes related to terrorism or espionage. According to the Supreme Court, “it might involve antithetical to the purpose underlying the provision if the safeguards provided by it were to be disregarded whenever a receiving country alleges that a foreign national inside its jurisdiction has been involved in espionage acts.”

The International Court of Justice (ICJ) emphasized that Pakistan had a duty to notify India and provide diplomatic access as soon as possible. Pakistan’s argument that India’s refusal to recognize the prisoner as a citizen would prevent its procedure of providing consular communication with Pakistan is completely unfounded and without merit. This is due to a fact in a question that has been clarified when it is in dispute, not just when it is obvious. To further clarify the situation, Pakistan simply identified Kulbhushan as an Indian agent on a number of occasions, which suggests that they knew cognizant of his citizenship. The International Court of Justice (ICJ) rejected Pakistan’s claim, finding them guilty of both rejecting the 1969 Optional Protocol’s terms and breaching the Vienna Convention on Consular Relations by restricting consular access.

Conclusion

Given that there are several important aspects to consider in this particular case, the researcher firmly believes that the Honorable International Court of Justice’s rationale and decision are sound.  Additionally, the researcher disagrees with the Court’s perspective on a few stated grounds. Thankfully, a balanced perspective on the conclusions and viewpoints is provided here.

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