Jadhav’s fate hangs in balance as justice denied

Bharat H Desai

Jawaharlal Nehru Chair and Professor of International Law, JNU

The recent passage of the International Court of Justice (Review and Re-consideration) Bill by a joint sitting of the two Houses of the Pakistan Parliament prima facie seeks to comply with the emphatic requirements of the ICJ judgment of July 17, 2019. It shows the majesty of international law to nudge the behaviour of a state, though it took two years first to issue an ordinance and now to adopt a Bill in November. It has been rejected by India. It has essentially sought an approval of the Presidential Ordinance (VI) originally published in the Pakistan Gazette on May 29, 2020.

The ICJ in a 15-to-1 verdict had affixed Pakistan’s “internationally wrongful acts of a continuing character” for a breach of its obligations under Article 36 paragraphs 1 (a), (b) and (c) of the Vienna Convention, (i) by not informing Jadhav of his rights (ii) by not informing India, without delay, of the arrest and detention of Jadhav; and (iii) by denying access to Jadhav by consular officers of India. Calling it ‘egregious violations’, the court required Pakistan for an ‘effective review and reconsideration’ of Jadhav’s conviction and sentences.

India’s recourse to the ICJ on May 8, 2017, was an unprecedented legal step when the bilateral ties had reached the nadir. Ironically, for Pakistan, the playing of the Jadhav card has proved a costly gamble as the court found jurisdiction under Article 1 of the Optional Protocol to the 1963 Vienna Convention on Consular Relations (VCCR).

Arraigning a state for a compulsory dispute settlement before the ICJ still remains a rarity. India took the astute route of a special treaty-based right instead of Article 36 of the ICJ Statute.

The contents of the 2021 Bill are not Jadhav-specific as they enable any of the Pakistan’s high courts ‘to review and reconsider’ an order issued by the ICJ in the matter of any foreign national. However, the objects and reasons of the Bill reveal the real purpose “in the matter of detention and trial of an Indian national, Commander Kulbhushan Sudhir Jadhav”, who had been sentenced to death in April 2017 by the Pakistani Military Court.

It seems, in a panic reaction to possible Indian recourse to the ICJ for giving effect to its 2019 order, the drafters of the Bill have unwittingly coloured it with subjectivity since it states that Jadhav “was a RAW operative, who facilitated numerous acts of terrorism in Pakistan, which resulted in the killings of countless innocent citizens of Pakistan.” Here, the legislation that purportedly sought to provide an ‘effective’ remedy for ‘review and reconsideration’ itself imputes motives to the accused and pre-judges the issues by charging him with espionage, acts of terror and killings of people.

Thus, the legislative route chosen by Pakistan itself has inherently vitiated the basic purpose to provide an “effective” review and reconsideration. Can a high court ignore the explicit accusations contained in the objects and purpose of the Bill? In the face of such explosive claims, how can a high court review and reconsider the death sentence already imposed by the Pakistan military court?

As a corollary, the criteria of ‘respect for the principles of fair trial’ as essential for the review and reconsideration to be ‘effective’ as well as “potential prejudice and implications for evidence and the rights of defence of the accused” stand flagrantly violated.

Thus, in letter and spirit, the 2021 Bill negates the very remedy, relief and trust reposed by the ICJ in the matter. There has been a consistent denial of unimpeded consular access to Jadhav, as was borne out by the Indian officials’ walkout from a meeting with Jadhav on July 16, 2020, in a breach of all Pakistani assurances.

In the hearings, when the Pakistan counsel made vociferous contentions on the charge of espionage, the court observed that Article 36 of the Vienna Convention does not contain any such caveat to deny consular access. The ICJ had clearly held that the Vienna Convention was applicable in the Jadhav case instead of the 2008 India-Pakistan Agreement on Consular Access. It was registered by Pakistan only on May 17, 2017 after India filed the case. The ICJ took the view that “there is nothing in the language of the 2008 Agreement which would suggest that India or Pakistan ever intended to derogate from Article 36 of the Vienna Convention.”

Ironically, the Indian side merely sought consular access as, ostensibly, the case was premised on egregious violations of Article 36 of the 1963 Vienna Convention. In international legal parlance, once the primary contention was proved and Pakistan held responsible for treaty violations, the logical remedy ought to have been the annulment of Jadhav’s conviction and his immediate release and safe passage to India. The ICJ was expected to uphold the right of a sovereign state to provide consular access to a citizen, irrespective of the charges. In turn, as a form of reparation, Pakistan should have been asked to restore status quo ante by an unconditional release of Jadhav.

Notwithstanding the court’s jurisdiction based on Article I of the Optional Protocol to the Vienna Convention, it ought to have tapped its inherent powers under the Statute to ensure justice by upholding fundamental human rights of the accused. The court did reaffirm a rule laid down in a 1928 case that “it is a principle of international law… that any breach of an engagement involves an obligation to make reparation” and that “reparation must, as far as possible, wipe out all the consequences of the illegal act.”

Due to ‘egregious violations’, the denial of effective local remedy, such as a fair trial, and apparent systemic bias, the ICJ needed to depart from the Avena case (Mexican national) to consider the conviction of Jadhav by a military court as sufficient to order the release and repatriation of Jadhav. Any remedy or appropriate reparation offered need to be construed in the totality of the circumstances that remain hostile to the accused and his state of nationality (India) and, hence, are futile.

In fact, the ICJ’s construct of the ‘choice of means’, including enacting an ‘appropriate legislation’ so as to “take all measures to provide for effective review and reconsideration”, has remained on paper after 28 months. It has accrued no fair treatment to Jadhav, as mandated by the ICJ. His fate hangs in the balance due to the inordinate delay and a grave denial of justice.

In view of the above, India has been left with no option but to move the ICJ to seek relief on the ground of continuation of ‘egregious violations’ of consular access, denial of basic human rights of the accused and lack of any possibility of fair treatment.

The court can take proprio motu notice of this and order Jadhav’s release forthwith. Any lesser view would be a travesty of justice, undermine the trust in the majesty of the court and render international law ineffective. Jadhav’s case is a litmus test of an opportunity for Pakistan to thaw bilateral relations. 

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