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Jul 17, 2020

As Pakistan Remains Unmoved, Here's What India Can do for Kulbhushan Jadhav's Freedom

diplomacy
India can approach the UNSC, which is empowered to take coercive measures including sanctions against judgment debtors to ensure compliance.
File photo of Kulbhushan Jadhav meeting his family. Photo: Handout via PTI

The long road to secure the freedom of Indian national Kulbhushan Sudhir Jadhav from Pakistani prison has taken an unexpected turn.

Last week, the Pakistani Attorney General Ahmed Irfan announced that Jadhav had refused to file a petition to “review and reconsider” his conviction and sentence by the military court, and instead preferred to follow up on his pending mercy petition.

New Delhi immediately responded by stating that Jadhav had been “obviously coerced” to forego his right to seek a “review and reconsideration” of his conviction and sentence, as had been ordered by the International Court of Justice (ICJ) in a judgment delivered almost exactly a year ago.

On July 16, Indian consular officials walked out of the second scheduled consular access granted by Pakistan in protest, alleging that Pakistan had not given its officials “unimpeded, unhindered and unconditional access” as promised.

Also read: ‘No Privacy,’ India’s 2nd Consular Access to Kulbhushan Jadhav Ends with Walkout of Officials

Jadhav, a retired naval officer, has been in Pakistani custody since March 3, 2016. The circumstances of his arrest by the Pakistani authorities remain contested. India claims that Jadhav was kidnapped from Iran where he was carrying on business and subsequently transferred to Pakistan for interrogation.

Pakistan, on the other hand claims, that Jadhav was involved in acts of espionage and terrorism and was arrested in Baluchistan after illegally entering Pakistan under a false passport. Jadhav was then tried before a military court for offences under the Pakistan Army Act, 1952 and Official Secrets Act, 1923 and ultimately sentenced to death on April 10, 2017.

During the trial India made multiple requests for consular access to Jadhav, however the same were repeatedly denied by Pakistan.

Within less than a month of his sentencing, India instituted proceedings against Pakistan before the ICJ alleging egregious violations of the Vienna Convention on Consular Relations (VCCR).

ICJ verdict

The ICJ, in its judgment of July 17, 2019 ruled in India’s favour holding that Pakistan by failing to inform India “without delay” of the arrest and detention of Jadhav, inform Jadhav of his rights under the VCCR, and failing to provide India consular access to Jadhav had breached its obligations under Article 36 of the VCCR.

The appropriate remedy for such breach as per the Court was “effective review and reconsideration of the conviction and sentence” of Jadhav.

The court laid special emphasis on the need for such review and reconsideration to be “effective”. As per the court, “Respect for the principles of fair trial was essential for the review and reconsideration to be effective” and that “potential prejudice and implications for evidence and the rights of defence of the accused should receive close scrutiny during the review and reconsideration”.

Also read: Jadhav Was ‘Coerced’ by Pakistan to Refuse Review of His Death Sentence, India Claims

Pertinently, the court expressly noted that the clemency procedures available to Jadhav under Pakistani law by way of mercy petitions to either the Chief of Army Staff or to the President of Pakistan, “was not sufficient in itself to serve as an appropriate means of review and reconsideration”.

Accordingly the ICJ found that Pakistan was under an obligation to provide, by means of its own choosing, effective review and reconsideration of the conviction and sentence of Jadhav, if necessary by enacting appropriate legislation and that until such effective review and reconsideration, the stay on Jadhav’s execution would continue.

‘Effective review and reconsideration’

It is noteworthy that for almost a year, Pakistan did not take any steps to implement the ICJ judgment. Only in May 2020 did Pakistan, amidst much secrecy, introduce the International Court of Justice (Review and Reconsideration) Ordinance, 2020, making provision for review and reconsideration of the conviction and sentence of Jadhav.

New Delhi maintains that the contents of the Ordinance do not meet the requirements for an “effective” review and reconsideration, in line with the judgment of the ICJ, and have formally protested the same through diplomatic channels. 

However, by setting up a plea that Jadhav refused to file a petition to “review and reconsider” his conviction and sentencing under the said ordinance, Pakistan has even bypassed the veneer of attempting compliance with the judgment of the ICJ.

It is important to note that the obligation to provide an “effective review and reconsideration” is on the state of Pakistan, as a form of reparation, for its breaches of the provisions of the VCCR in the trial and conviction of Jadhav.

Moreover, as already determined by the ICJ the availability of clemency procedures to Jadhav in the form of mercy petitions, do not meet the requirements of an “effective review and reconsideration”.  

Legal remedies

This begs the question of what remedies are available to India to ensure Pakistan’s compliance with the judgment of the ICJ.

Although it has been suggested that the government approach the ICJ again, there is limited scope for doing so i.e. only to seek revision or interpretation of the judgment. Revision can only be sought upon discovery of some new fact of such a character that would lay the case open for revision, whereas requests for interpretation cannot be sought for questions that were not decided in the judgment itself.

Also read: Explainer | Kulbhushan Jadhav Case: The Legal Arguments

Moreover, under the United Nations Charter framework, the responsibility of ensuring compliance is not entrusted to the legal organ but to the political organ the UN Security Council (UNSC). Accordingly the obligation to comply with the decisions of the ICJ is found in Article 94(1) the UN Charter and not in the Statute of the ICJ.

The idea behind this historical division between the adjudication and post-adjudication phase was that non-compliance was thought of as giving rise to new political tensions and the UNSC as a political body was seen by the framers as the more appropriate body for taking immediate political action rather than having another judicial examination. 

Accordingly, India can approach the UNSC, which is empowered under Article 94(2) of the UN Charter to take coercive measures including sanctions against judgment debtors to ensure compliance. However, being a political body, with the availability of veto powers to the permanent members, getting the UNSC to act against Pakistan would not be an easy task.

It is not for any reason that in its entire history the UNSC has not once employed its Article 94(2) powers even in cases of clear non-compliance by states.

Nevertheless in some notable instances, seizing the UNSC with an issue of non-compliance itself has facilitated in bringing about compliance. India should therefore seriously consider approaching the UNSC in the Jadhav matter.

Jay Manoj Sanklecha is an LL.M in international law (summa cum laude) from IHEID, Geneva and B.A/LL.B (hons.) from NUJS Kolkata. Views are personal.

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