The Case of Kulbhushan Jadhav: India, Pakistan and the International Court of Justice

The Case of Kulbhushan Jadhav: India, Pakistan and the International Court of Justice

In March 2016, Kulbhushan Jadhav was taken into custody by the Pakistan authorities alleging him to be an Indian Research & Analysis Wing (RAW) spy who was carrying out insurrectionary activities in the province of Balochistan. It was mentioned by the Pakistan Army that he was trying to enter Pakistan at Saravan, the Iran-Pakistan border. They further said that he was carrying an Indian passport under the name of Hussain Mubarak Patel. India reacted to these allegations stating that Jadhav was a Navy Officer who retired in the year 2001 and was in Chabahar (Iran) for business purposes where he was kidnapped by the Pakistan authorities with the aim of incriminating India with charges of terrorism and espionage. However, a couple weeks after his arrest, the Pakistan authorities released a video where Jadhav is seen confessing to the alleged crimes and mentions that he is a Navy Officer who will retire in 2022. He also mentions that he was in Iran as an agent of RAW and was sent there to disrupt the infrastructure work being carried out on the China-Pakistan Economic Corridor.

Subsequently, earlier this year in April, Jadhav was tried under the Pakistan Army Act and the Official Secrets Act and was convicted by a court martial in Pakistan for “all charges” levied against him. He was awarded the death sentence by the military court. These charges have not been disclosed and India has been denied consular access to Jadhav even after numerous requests were sought from the Indian authorities. Furthermore, a copy of the verdict has also not been provided and the Pakistan authorities have said Jadhav can appeal the order according to the procedure established by law. The Lahore High Court Bar Association explicitly mentioned that the membership of any lawyer who accepts Jadhav’s case would be cancelled.

Following these incidents, India cancelled maritime talks with Pakistan which were scheduled to happen in mid-April. After negotiations with Pakistan authorities and multiple requests for consular access to Jadhav had turned futile, India approached the International Court of Justice (ICJ) to resolve the matter. The ICJ’s interim decision came as a relief to the Indian authorities as it stayed the execution of Jadhav until a final order was passed. India stated that Pakistan had grossly violated international law and invoked the Vienna Convention on Consular Relations (VCCR) and the International Covenant on Civil and Political Rights (ICCPR), both of which are binding on Pakistan.

These events, however, are not in isolation of themselves and spur debate over a number of issues which need to be taken into consideration while addressing the issue at hand.

Indias Resistance to International Law

Over the years, since its independence from the British Raj, India has been before the international courts over a handful of issues, some outcomes have favoured it but others have not. India’s resistance to the international fora and international law was  triggered by two events. Firstly, the way in which the United Nations dealt with the Kashmir issue in the year 1947 and secondly, the attitude of the UN in the 1971 war and the Pakistani genocide in Bangladesh. Since, there has been a consistent lack of engagement with principles of international law and treaties. India has sidetracked its obligations to international treaties and conventions at the domestic level, particularly with respect to the human rights violations in Jammu and Kashmir in light of the enforcement of the Armed Forces Special Protection Act. Nevertheless, the fact remains that India is bound by common article 3 of Geneva Conventions I-III which provides for a threshold for the standard of treatment for civilians entangled in an internal conflict, even though it has not signed the additional protocols to the Convention. Over the years, the country has placed little faith in the functioning of international courts and bodies, thereby restricting its available recourses in the event of disputes.

In the case of Kulbhushan Jadhav, India eventually approached the ICJ after failed  negotiation attempts and requests for consular access. This attitude of India has been criticised by scholars who have said that India has picked out international obligations based on political convenience. While India has invoked the VCCR against Pakistan in Jadhav’s case, India has violated the same convention in the past. This displays the lack of adherence to international norms and principles by India and keeping the international fora of justice as a means of last resort.

The Atlantique Incident

In the year 1999, the Atlantique aircraft belonging to the Pakistan Navy was shot down in the contentious area of Rann of Kutch by India. Following this, Pakistan approached the ICJ seeking redressal against India. In this case, India contended that the ICJ did not have jurisdiction and to its relief the international court ruled that it lacked jurisdiction with regards to matters on which there exists a bilateral agreement between the State parties.

Subsequently, in the year 2008, India and Pakistan entered into a bilateral agreement on consular access. According to Clause VI of the agreement, “decision to grant consular access in cases where detentions and arrests relate to political or security matters” shall be taken “on the merits of the case”. Therefore, on a joint observation of the bilateral agreement and the decision of the ICJ in the Atlantique incident, there proves to be an issue of jurisdiction again in the Jadhav case which concerns consular access. However, the ICJ went ahead with the hearing as both India and Pakistan are signatories to the VCCR and this overrides the local laws of the countries.

ICJs Jurisdiction Over Pakistan

Earlier this year, on March 29th, Pakistan altered its obligation to the ICJ and retracted issues of domestic and national security from the jurisdiction of the court. The ICJ delivered an interim order in the month of May ordering Pakistan to stay the execution of Jadhav until a final judgment is ruled on the issue. However, due to the withdrawal of Pakistan from its commitment to the ICJ, scholars, academics, lawyers and politicians have expressed their concern about the binding nature of the ICJ’s order. It has been said that while the order might be passed in favour of India, the extent to which such an order can bind Pakistan remains questionable.

Vienna Convention on Consular Relations

Both India and Pakistan are signatories of the Vienna Convention on Consular Relations of 1963. The VCCR defines and lays down guidelines for consular relations between independent State parties. Article 36 (1) (c) of the Conventions reads as follows:

consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgement. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.

The act of Pakistan constantly rejecting India’s requests for consular access is in direct violation of sub-clause (c) of Article 36 of the Convention. This, however, covers only the procedural aspects of providing consular access and does not have a direct bearing on the death sentence awarded by the Pakistani court martial.

Amidst all this, family members of a former Pakistani Army personnel, Lt. Col. (Retd) Habib Zahir, have contended that he was kidnapped in Nepal and have alleged that the Indian intelligence agencies played a role in the kidnap in order to negotiate for Jadhav to be exchanged for the Pakistani personnel. However, there has been no official information regarding this and the contentions seem to be devoid of a solid grounding in facts.

This issue aggravates the long-drawn political tensions between India and Pakistan, making the resolution of the same an urgent necessity in order to avoid future conflict and hostilities between in the neighbouring countries.