Kulbhushan Case: India Moves to International Court of Justice

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The International Court of Justice stayed the hanging of Indian national Kulbhushan Jadhav sentenced to death by a Pakistani military court on charges of spying. Kulbhushan Sudhir Jadhav is an Indian national arrested by Pakistan in Balochistan.

The order came after India approached by The Hague-based International Court of Justice (ICJ) against the death sentence handed down to Jadhav by Pakistan’s field general court martial. This is the first time India has initiated a case at the ICJ since 1971 and only the second time since 1947.

India has sought a direction to Pakistan to annul the decision of the Military Court. In case Pakistan is unable to annul the decision, it has sought a declaration that the decision is illegal, being violative of international law and treaty rights.

India has accused Pakistan of violating the Vienna Convention and said Jadhav was kidnapped from Iran where he was involved in business activities after retiring from the Indian Navy but Pakistan claimed to have arrested him from Balochistan on March 3, 2016.

India has initiated proceedings before The International Court of Justice at The Hague, Netherlands seeking a stay of execution of former Indian Navy Officer Kulbhushan Jadhav, who was sentenced to death by a Pakistani Military Court on espionage charges.

The ICJ President has sent an urgent Communication to Pakistan under Article 74, paragraph 4, of the Rules of Court regarding the proceedings

Article 74, paragraph 4, of the Rules of Court stipulates that “[p]ending the meeting of the Court, the President may call upon the parties to act in such a way as will enable any order the Court may make on the request for provisional measures to have its appropriate effects.”.

The Indian challenge is essentially based on what it says are Pakistan’s gross violations of the Vienna Convention on Consular Relations, the 1963 international treaty which governs the right of a country’s diplomatic representatives to visit their nationals held prisoner by the host country.

The Vienna Convention on Consular Relations of 1963 is an international treaty that defines a framework for consular relations between independent states.

Consular immunity privileges are described in the Vienna Convention on Consular Relations of 1963 (VCCR). Consular immunity offers protections similar to diplomatic immunity, but these protections are not as extensive, given the functional differences between consular and diplomatic officers. For example, consular officers are not accorded absolute immunity from a host country’s criminal jurisdiction, they may be tried for certain local crimes upon action by a local court, and are immune from local jurisdiction only in cases directly relating to consular functions.

Pakistan and India have signed an agreement on consular access in 2008, and according to clause VI of that agreement, decision to grant consular access in cases where detentions and arrests relate to political or security matters, the request of consular access will be decided on merits of the case.

India made 16 requests for consular access to Jadhav which were denied by Pakistan and that there is no information on status of appeal by Jadhav’s family against the order of the Pakistani military court.

Pending the ICJ’s final judgment, India has asked for provisional measures. The provisional measures that India has requested are:

1. that Pakistan take all measures necessary to ensure that Kulbhushan Sudhir Jadhav is not executed

2. that the Government of Pakistan report to the Court the action it has taken in pursuance of above measure.

3. that Pakistan ensure that no action is taken that might prejudice the rights of India or Kulbhushan with respect of any decision the Court may render on the merits of the case.

The ICJ was established by the UN charter in 1945. The statute of ICJ guides its work. All UN members are technically parties to the ICJ but each country has made a declaration on the issues they would accept the court’s jurisdiction.

India has sought four final “reliefs” from the ICJ. These are:

1. an immediate suspension of the death sentence

2. restitution in interregnum by declaring that the sentence of the military court arrived at, in brazen defiance of the Vienna Convention rights and in defiance of elementary human rights of an accused which are also to be given effect as mandated under Article 14 of the 1966 International Covenant on Civil and Political Rights, is violative of international law and the provisions of the Vienna Convention.

3. restraining Pakistan from giving effect to the sentence awarded by the military court, and directing it to take steps to annul the decision of the military court as may be available to it under the law in Pakistan

4. if Pakistan is unable to annul the decision, then this court to declare the decision illegal being violative of international law and treaty rights and restrain Pakistan from acting in violation of the Vienna Convention and international law by giving effect to the sentence or the conviction in any manner, and directing it to release the convicted Indian National forthwith.”

Pakistan media is saying that ICJ has no jurisdiction over Pakistan’s internal matters, as it can only interfere with the consent of both parties.

At a time when the relation between India and Pakistan has touched a new low, the death sentence to Jadhav will further ruin the ties between the countries.

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