Kulbushan Jadhav Case (India v. Pakistan)
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This Blog is written by Mohammad Zahid from Maharashtra National Law University, Aurangabad. Edited by Ravikiran Shukre.
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INTRODUCTION
Kulbushan Jadhav[1] who was born in Sangli district of Maharashtra, on 16 April in the year 1970. His father’s name is Sudhir and his mother’s name Avanti Jadhav. His father used to work in Mumbai police, he was an officer. Jadhav has 2 children and his family stays in the Powai area of Mumbai. Kulbushan Jadhav joined Indian Defense in the year 1987 and he was chosen for the engineering branch of the Indian Navy. He served the navy for 14 years and got retired. He then shifted to Iran, invested money there, and was conducting the business of Cargo under the surveillance of the Country of Iran. Kulbushan Jadhav was been abducted by the Pakistan Agency and brought to Pakistan. He was being accused of espionage and creating havoc in Pakistan. He was set on trial by the Pakistan Military court and accused. The Pakistan government didn’t comply with any request made by India. The Military court set Kulbushan Jadhav a Death sentence.
CONTEXT
When Kulbushan Jadhav was arrested, India the home country or where he is the citizen was not being informed. They informed India after 3 weeks of the arrest. India claims that Jadhav was been abducted from Iran and bought into Baluchistan in Pakistan and accused of terrorism, and Pakistan claims that Jadhav is an Indian spy who stayed in Baluchistan province and was promoting terrorism and creating more chaos.
India was not being informed for 3 weeks after the arrest of Jadhav. When India was being informed about the arrest of Jadhav to Indian High Commissioner in Pakistan. The very day India sought the consular to Jadhav, but Pakistan did not respond to any of the requests made by India. Pakistan is plight to give access to India to Jadhav. India requested 13 times to the government of Pakistan, to give access to Jadhav.
6 May 2016, 10 June 2016, 11 July 2016, 26 July 2016, 22 August 2016, 3 November 2016, 19 December 2016, 3 February 2017, 3 March 2017, 31 March 2017, 10 April 2017, 14 April 2017 and 19 April 2017.
These were the dates on which India approached Islamabad for the consular access, every single time it was denied by Pakistan. On 21 March 2017 Pakistan said to India that they would consider giving consular access to the Indian government for Kulbushan Jadhav only if India would help in assisting to solve the case for Kulbushan Jadhav. The Pakistan government knew that consular access is a right to the person who is arrested on foreign land one of Pakistan I representative in an interview said that Kulbushan Jadhav who is a spy of India should not be allowed for consular access after this it was very clear the intention of Pakistan. A military court was set up in Pakistan where Kulbushan Jadhav was been given a sentence to death. The government that had not given Jadhav a chance to access his home country so they could ha got him legal help and get some sought of remedies. Kulbushan Jadhav also filed a mercy petition in the military court which is still pending. The Pakistan government gave no chance to India to assist Jadhav in his trail. India demands a copy of the charge sheet which was filed against Jadhav but Pakistan denied handing the sheet too. Later the summary of the case, evidence, and defense lawyer. But Pakistan did not comply with any request of India. Mother of Jadhav applied for the visa for visiting Pakistan and requested to meet Jadhav but there was no response from their side. Pakistan has acted shamelessly and violated numerous rights that were available to Jadhav.
The time India came to know about the death penalty of Jadhav. India approached the International court of justice, Hague Netherlands. The day they appealed into the court, the next day the court put a stay on the execution of the Jadhav. After India approaching the International Court of Justice, Pakistan allowed Jadhav’s Mother and wife to meet him and granted them visas to visit Pakistan. Jadhav’s mother and his wife met him on humanitarian grounds. They spoke through the intercom as a glass screen separated them. An Indian officer was with them, the officers of both countries were listening to their conversation. Pakistan claimed that they provided Jadhav consular assistance, it was then said that by just one officer presented there doesn’t mean that consular assistance was been given. The act of Pakistan led precluded India from protecting its national interest which is given in Articles 5 and 35 of the Vienna convention.
Both the countries gave a strong argument in the court of justice, India made its allegation on Pakistan on the violation of The Vienna Convention. All of the allegations were admissible by the court. Pakistan has also raised three objections to the allowed of its counterpart. These objections were, Abuse of Power, Abuse of Rights and Unlawful Conduct, after which, and the court concluded that the three objections raised by Pakistan must not be considered and must be dismissed and the Application of India must be admissible and considered.
PROVISIONS WHICH WERE ATTRACTED
There was a grave violation by Pakistan on Article 36 of the Vienna convention.
1) Pakistan when they arrested Jadhav did not immediately inform India about the arrest.
2) India was denied when they approached to communicate between Jadhav and they and the Pakistan government did not inform Jadhav about the available rights he has.
Article 36 (1) (b) of the Vienna Convention confers, in language that admits of no ambiguity, indefeasible rights to consular access to a national of the sending State, who has been arrested, or committed to prison, or to custody pending trial, or detained in any other manner. The Vienna Convention also confers upon the sending State, acting through its consular officers, the right to visit its national in prison, custody or detention, so as to converse and correspond with him, and also to arrange for his legal representation. The access and visitation rights continue to a national of the sending State who is in prison, custody or detention, in pursuance of a judgment. There is no exception for this article it is absolute, it is being recognized as a vital constituent of all due overall process.
COMMUNICATION AND CONTACT WITH NATIONALS OF THE SENDING STATE
Article 36 of The Vienna Convention [2]
With A View to Facilitating the Exercise of Consular Functions Relating to Nationals of the Sending State:
(a) Consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;
(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph”.
WHAT INDIA WAS EXPECTING FROM THE INTERNATIONAL COURT OF JUSTICE
• Pakistan has breached the Vienna Convention by failing to inform Kulbushan Jadhav of his available rights and declining the consular assistance requested by India
• The military court of Pakistan which decided the issue and gave the verdict is incompatible and is violating of international law
• Order Pakistan to annul the court’s decision and take back its decision.
WHAT COURT DECIDED
• The court gave the verdict in the favor of India, it recalled its judgments from the case of la grand where it gave a verdict against America and ask not to repeat this same mistake.
• The court asked Pakistan to provide consular assistance to Jadhav from India.
• It put on hold or stayed on the death sentence of Jadhav
• The court of justice also asked Pakistan to review its judgment on Jadhav.
Court said in addition, as argued by India, Pakistan did a grave violation of ICCPR. The increasingly partisan and hasty trial conducted in the Pakistan military court does not stand in accordance with the civil and political rights guaranteed under international law.
SIMILAR CASES
LeGrand (Germany V. United States of America): [3]
On 2 March 1999, The Federal Republic of Germany file a case against the United States of America, the United States of America arrested Karl and Walter LeGrand, these 2 were citizen of Germany but stayed their whole life in the United States, and both of these were sentenced to death by the court of United States of America. Both of them were not being informed about the rights which they have under Article 36. When the Republic of Germany came to know about this, they approached the international court of justice. The first thing they asked for was to put a stay on the execution of both of the persons till the verdict of the international court of justice. The International Court of Justice. One of the person’s execution was set on 3 March 1999. The International Court of Justice ordered the indication an asked the United States of America to take all steps to stop the execution, however, they both were executed.
Hearings were held and the United States was alleged for clearly violating the rights of those people. The United States was asked to write a sorrow to the Federal Republic of Germany, if they don’t perform this obligation or fail to perform the obligation then an apology won’t suffice, then they have to face severe penalties.
Avena and Other Mexican Nationals (Mexico V. United States of America): [4]
In this case, there were 52 Mexican nationals were sentenced to death. This case had the shadow of the whole Le Grand case, where its rights were violated under Article 36 of the Vienna convention. Later after testifying, it came out that only 3 Mexican nationals’ rights were violated.
IMPACT OF THE JADHAV CASES
Nevertheless, this case of India v. Pakistan is symbolic of a larger truth. The administration of justice, in this case, will not only involve a balancing act between contending claims, but it will be a strong test of human rights as well.
This case gave an opportunity to the body of the United Nations, to once again establish the freedom of an individual in the fight of two states. The verdict it gave in Le Grand case (Germany v United States of America), Inter National Court of Justice 2001 and it protected the rights of detainees. This is the most landmark case where it was held that a right of individuals under the Vienna convention cannot be denied at any cost, even at the cost of a domestic legal procedure of any nation. Audi Alteram Partem, a Latin phrase that translates into, ‘to listen to the other side’, should be given more importance, if the state has repeated or went far from its action. Then it should go through many penalties, but this phrase or far neglected. Even the military court of Pakistan was being doubted and asked to reconsider or review its decision. Here the equity was being served.
ANALYSIS
The judgment in Kulbushan Jadhav was made on the experience of previous based judgment. These issue has been brought up to the International Court of Justice before too, Related Vienna Convention on Consular Access in Le Grand and Avena case where the INTERNATIONAL COURT OF JUSTICE gave similar relief of “review and consideration” by the country in violation of Vienna Convection. But there is a very little chance of this that the implementation would be in an effective way or not. The reason is that Pakistan still has the discretion power of what to do with Kulbushan Jadhav’s conviction. Even after its review, it can give him and death row. But still, we can consider the judgment made by the international court of justice can be considered as a remarkable one after the Le Grand case and Avena case.
REFERENCES
1] https://www.icj-cij.org/files/case-related/168/168-20170518-ORD-01-00-EN.pdf
2] https://legal.un.org/ilc/texts/instruments/english/conventions/9_2_1963.pdf
Very informative and well written posts.