The second round of the courtroom battle between India and Pakistan regarding the Kulbhushan Jadhav case concluded at the International Court of Justice (“ICJ”) on 21st February 2019. This was a week-long hearing devoted to the parties’ oral arguments. The ICJ is expected to render a decision within 4-5 months from that date.
As expected, political pundits and soothsayers on both sides have made predictions about which way the decision will go. They have however not offered much insight into the legal issues involved and the arguments before the ICJ. Never mind that people on both sides have been left whipped up in a national frenzy.
Courtroom battles are as much about which party has the law on its side as they are about who ends up telling the better story in court. Which of the two sides, India or Pakistan, had the better story, the more convincing tale? Who was on the right side of the law?
Lest we lose sight of the litigants (two sovereign countries), no less the fact that the dispute played out before the World Court (ICJ) or that it involved interpretation of a grey area of international law (espionage), it is important to go back to the drawing board and first make sense of what is at stake. National pride can take a back seat for now.
Courtroom battles are as much about which party has the law on its side as they are about who ends up telling the better story in court. Which of the two sides, India or Pakistan, had the better story, the more convincing tale? Who was on the right side of the law? Not an easy task considering that intricate international law principles were involved and brilliant arguments were advanced by both sides.
Read more: The Fate of Kulbhushan Jadhav: ICJ begins public hearing
1. The 18 May 2017 ICJ Provisional Order
The second round of the courtroom battle was preceded by an early first-round victory for India in May 2017. This was expected. On 8th May, India sought interim relief from ICJ for stay of Kulbhushan Jadhav’s execution ordered by the Pakistan military court. On 18th May, the ICJ granted provisional measures in line with the ICJ’s ordinary approach to requests for interim relief in death penalty cases.
The ICJ ordered that Pakistan “must take all measures at its disposal to prevent the execution of an Indian national, Mr. Jadhav, the pending final judgment of the Court”. After having drawn first blood, India proceeded to file its Memorial at the ICJ on 13th September 2017 which was India’s detailed claim in the matter.
2. Jurisdiction of the ICJ
India invoked the ICJ’s jurisdiction under Article 36, paragraph 1, of the Statute of the ICJ and Article 1 of the Optional Protocol concerning the Compulsory Settlement of Disputes (1963) (“Optional Protocol”). Both India and Pakistan are parties to the Statute of the ICJ.
By way of summary, ICJ is the principal organ of the United Nations established in 1945. Its role includes settling, in accordance with international law, legal disputes submitted to it by states (countries). ICJ’s judgments have binding force and are without appeal for the parties concerned.
3. Factual Allegations by India & Pakistan
India claimed that Pakistan arrested an Indian national, Kulbhushan Jadhav on 3rd March 2016. India, however, came to know about the arrest on 25th March 2016.
On this date, Pakistan shared a document with P-5 countries alleging that Mr. Jadhav, a RAW agent operating as a businessman in Chahbahar, Iran, was arrested upon crossing over from Iran to Balochistan. Pakistan publicly aired a video containing Mr. Jadhav’s purported confession. On 25th March, India sought consular access to him.
India did not respond to Pakistan’s 18 requests for mutual legal assistance which would have enabled Pakistan to investigate and prosecute possible financing and support of terrorist acts by Mr. Jadhav.
On 8th April 2016, a FIR was registered against Mr. Jadhav. This FIR was supplemented through a subsequent FIR on 6th September 2016. In between, India continued to request Pakistan to grant consular access to Kulbhushan Jadhav. India claims that a total of 14 such requests and reminders were sent to Pakistan which remained unanswered.
A field general court martial (FGCM) of Mr. Jadhav was held on 21st September 2016. On 22nd September 2016, summary of evidence was recorded in the FGCM and the next FGCM proceedings were held on 19th November 2016.
On 2nd January 2017, Advisor to the Pakistan Prime Minister wrote to the Secretary General of the United Nations (“U.N.”) informing him about Mr. Jadhav’s arrest and his having confessed to involvement in “activities aimed at destabilizing Pakistan”.
Read more: Kulbhushan Jadhav case: ICJ to start hearing in February
On 23rd January 2017, Pakistan sent a Note Verbale to India claiming that Mr. Jadhav had revealed names of his “so-called handlers” and asked India’s assistance in obtaining statements of high functionaries of the Indian Naval Service and access to his certified phone records and bank accounts.
The FGCM concluded on 12th February 2017. In April 2017, India came to know that Mr. Jadhav had been awarded the death sentence and that it had been confirmed by the Pakistan Chief of Army Staff on the same day. In March 2017, Pakistan told India that the case for the consular access to Mr. Jadhav would be considered in light of India’s response to Pakistan’s request for assistance in the investigation process.
In response, India advised Pakistan that consular access is an essential prerequisite to verify the facts and the circumstances of Mr. Jadhav’s presence in Pakistan. In April 2017, The Minister of External Affairs set out the Indian government’s position that Kulbhushan Jadhav was a “kidnapped Indian”.
Not an easy task considering that intricate international law principles were involved and brilliant arguments were advanced by both sides.
In April 2017, the Adviser to the Prime Minister of Pakistan claimed that Mr. Jadhav was a serving Commander of the Indian Navy who was arrested at the Iran border and that he had been fairly tried in accordance with the law. In response, India, sought certified copies of the charge sheet and the judgment of the Military Court against him which were not provided by Pakistan.
On 20th April 2017, in a press briefing, Pakistan’s spokesperson claimed the existence of a bilateral treaty with India which entitles Pakistan to withhold consular access in such matters. India claimed that it was not informed about this treaty in any formal communication by Pakistan.
Read more: Kulbhushan Jadhav Case: India to submit reply in ICJ today
India further claims that it was in these circumstances that it made an Application for Indication of Provisional Measures before the ICJ in May 2017. On 22nd June 2017, India came to know from an ISPR press conference that the Military Appellate Court had rejected Mr. Jadhav’s appeal and that he had made a mercy petition to the Pakistan Chief of Army Staff.
On 26th October 2017, Pakistan wrote to India reiterating that it is prepared to consider any request for extradition that India may make if Mr. Jadhav is considered to be a criminal under Indian law. India responded to this request by calling it Pakistan’s “attempted propaganda” and noting India was not in possession of any material that would give it reason to suspect that Mr. Jadhav had committed a crime under Indian law.
On 11th April 2017, India advised Pakistan that the passport allegedly recovered from Mr. Jadhav was “patently false” and that to investigate into any allegations by Pakistan, India would have to inquire into the circumstances in which the passport was recovered.
Mr. Jadhav was a serving officer of the Indian Navy and a RAW agent operating under the cover name “Hussain Mubarak Patel” when he was apprehended by Pakistan. He is not a “retired” officer of the Indian Navy or an “innocent” businessman as claimed by India.
He was in possession of two passports, one, an authentic Indian passport in his name: Kulbhushan Jadhav, and the other in his cover name: Hussain Mubarak Patel. India failed to establish how the Indian passport in the cover name, Hussain Mubarak Patel, got renewed and how he was able to travel in and out of India 17 times on that passport.
Pakistan called it India’s “kidnap fiction” the Indian allegation that Mr. Jadhav was kidnapped by Pakistan and brought over from Iran. Notably, 11 months after Pakistan had notified India about the arrest of Mr. Jadhav did India claim that he had been kidnapped by Pakistan.
Mr Jadhav was a serving officer of the Indian Navy and a RAW agent operating under the cover name “Hussain Mubarak Patel” when he was apprehended by Pakistan.
Moreover, India never offered evidence as to how Mr. Jadhav was kidnapped from Iran and brought to Pakistan. India’s assertion that Mr. Jadhav had retired from service was never established by India. All retired Indian officials’ names and pension records are published in the Indian Official Gazette but this was not so in the case of Kulbhushan Jadhav.
A “False cover name authentic Indian passport” is not evidence of nationality and India did not establish the nationality of Mr. Jadhav despite Pakistan’s repeated requests to India.
India did not respond to Pakistan’s 18 requests for mutual legal assistance (MLA) which would have enabled Pakistan to investigate and prosecute possible financing and support of terrorist acts by Mr. Jadhav.
Read more: ‘Kulbhushan Jadhav is a RAW spy’, The Quint confirmed then took…
4. Crux of the Dispute
India’s claim derived from the Vienna Convention on Consular Relations (1963) (“Vienna Convention”), a multilateral treaty that has been accepted by 177 countries as of date. India claimed that Pakistan’s denial of consular access to Mr. Jadhav was a violation of Article 36 of the Vienna Convention and that Mr. Jadhav’s trial by the military court of Pakistan fell below the required due process standards recognized globally.
As a consequence, on the basis of the principle of restitutio in integrum (translation: restoration of a party to the situation that would have prevailed had no injury been committed), India sought annulment of Mr. Jadhav’s conviction by the military court of Pakistan. Later, an alternative prayer was introduced by India to have Mr. Jadhav’s trial ordered under Pakistani law before civilian courts with due process and full consular access to India in line with the tenets of international human rights treaties.
Pakistan sought rejection of the Indian claim on grounds that India was abusing process and had come to the ICJ with “unclean hands” as it had engaged in terrorist acts through Mr. Jadhav. Pakistan claimed India had failed to prove his nationality – a prerequisite to engaging the Vienna Convention.
Pakistan further claimed that although international law provides an exception to consular access in cases of espionage, even if Vienna Convention was engaged, the acts indulged in by Mr. Jadhav on their own were a violation of the Vienna Convention. Pakistan also asked the ICJ to consider the engagement of the Vienna Convention in light of a 2008 Bilateral Treaty between India and Pakistan which identifies the basis on which consular access would be considered in the case of an individual suspected of espionage.
Pakistan, however, prayed to the Court that even if it was established by the ICJ that India had a right to consular access, the appropriate remedy would be review and reconsideration before the Pakistan High Court in accordance with Article 199 of the Constitution of Pakistan.
Read more: ‘I am still a commissioned officer’, says Kulbhushan Jadhav
5. Strategy Adopted by India and Pakistan
Both India and Pakistan adopted strikingly different strategies. This provides an insight into the aims and objectives of each country and how it viewed litigation before the World Court.
Indian Strategy in ICJ
India painted a picture of Pakistan as a country with scant regard for international law. Pakistan was in brazen violation of international law when it targeted an innocent Indian national through false propaganda and denied India’s repeated requests for consular access.
Pakistan publicly aired a video containing Mr. Jadhav’s purported confession. On 25th March, India sought consular access to him.
India called on the ICJ to not only view Pakistan’s act of denying consular access from the perspective of the Vienna Convention but also from that of international human rights treaties which mandate minimum due process standards in the 21st Century. In other words, India’s war cry was that Vienna Convention is a subset of the broader gamut of international treaties that prescribe minimum due process standards in the present day; something Pakistan can’t simply brush aside without legal consequences.
Interestingly, in the later part of the proceedings, after the counsel for Pakistan had termed India’s prayer to set Mr. Jadhav free as “India’s all or nothing strategy” and an attempt by India to sidestep the law laid down by the ICJ in previous cases that “review and reconsideration” before local courts (in this case the Pakistan High Court) is the appropriate remedy, there was a shift in the Indian strategy when India introduced an alternative prayer that if the ICJ did not deem the annulment of Mr. Jadhav’s military court conviction as an appropriate remedy, it may instead order his trial before the civilian courts of Pakistan with full consular access to India.
Pakistani Strategy in ICJ
Pakistan’s strategy revolved around making chinks in the Indian narrative to make India appear suspect and its case weak. Pakistan aggressively challenged the bona fides of India’s claims about Mr. Jadhav’s innocence, raised questions about the circumstances surrounding the passport issue and India’s failure to answer repeated questions about his status and nationality.
Pakistan also called India’s filing the application an abuse of the ICJ jurisdiction for political theatre. Pakistan’s counsel used the forceful argument to paint a desperate India attempting to save itself from the obvious embarrassment of its national having been convicted of espionage.
Mr Kulbhushan Jadhav was in possession of two passports, one, an authentic Indian passport in his name: Kulbhushan Jadhav, and the other in his cover name: Hussain Mubarak Patel. India failed to establish how the Indian passport in the cover name, Patel, got renewed.
India was said to be sitting on “a flimsy wall of lies” like Humpty Dumpty, whose fate would be in the form of a final fall once that wall came crumbling down. Pakistan called on the ICJ to look at India’s evasive measures in not answering questions raised by Pakistan about Mr. Jadhav’s nationality and passport.
Pakistan’s war cry, through relentless appeal to both emotion and reason, was that India’s claim for consular access to Mr. Jadhav was grounded in a twisted and wrong interpretation of the Vienna Convention and a misreading of the ICJ precedents. Worse, Pakistan pointed out, India had indulged in a contortion of facts, misled the Court on its own previous judgments and in the process lost all credibility before the World Court. As a consequence, Pakistan called on the World Court to dismiss the Indian application.
Read more: Why Jadhav became so important for India? – Dr Moeed Pirzada
6. The Centrality of Article 36 of the Vienna Convention
The key question presented to the ICJ was the meaning and construction of Article 36 of the Vienna Convention.
Both Pakistan and India are signatories to the Vienna Convention and the Optional Protocol.
Relevant Text of Article 36
“1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:
(c) 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…..
2. The rights referred to in paragraph 1 of this article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this article are intended.”
Like most treaty provisions that are the result of a compromise between nation states, Article 36 is a wordy clause that shifts gears between international and domestic commitments. Consular access is absolute, we are told (Paragraph 1, (c) yet there is a dilution of this right when it is required to be exercised in conformity with the laws and regulations of the receiving State (Paragraph (2).
Yet another twist in the form of a proviso that the laws and regulations of the receiving State “must enable full effect to be given to the purposes for which the rights (consular access) accorded under this article are intended” (Paragraph 2, last sentence). The fact that there is no mention of espionage either in Article 36 or in the Vienna Convention as a whole does not help much either.
Where does this leave us? Depends on whom you ask.
Read more: India could not answer many questions in ICJ about Kulbhushan Case
6. Building blocks of India’s case before the ICJ
Literal interpretation of Article 36 leaves no doubt
India’s case was pleaded by Mr. Harish Salve. He argued that the literal interpretation of Article 36 of the Vienna Convention leaves no doubt about a sending State’s right of consular access.
Even if the sending State’s right of consular access is subject to the laws of the receiving State, the proviso: “laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this article are intended”, leaves no doubt about the absoluteness of this right and the receiving State’s corresponding obligation to provide consular access.
India quoted the ICJ’s previously decided cases to bolster its claim. One such case India cited was Avena (Mexico v United States, 2004), where the ICJ had held:
“The Court would recall that it is in any event essential to have in mind the nature of the Vienna Convention. It lays down certain standards to be observed by all State parties, with a view to the ‘unimpeded conduct of consular relations’, which, as the Court observed in 1979, is important in present-day international law ‘in promoting the development of friendly relations among nations, and ensuring protection and assistance for aliens resident in the territories of other States’.”
India argued that
Pakistan’s interpretation of the “espionage exception” under Article 36 is flawed
India called as flawed Pakistan’s interpretation of Article 36 of the Vienna Convention. Pakistan argued that Article 36 does not oblige States to provide consular access where the national of a sending State is reasonably suspected of espionage.
Citing the preparatory work or travaux préparatoires behind adoption of the Vienna Convention, Pakistan had argued that although the issue of espionage was present to the minds to the negotiators and drafters of the Vienna Convention, yet, in their wisdom they chose not to make any express exception to consular access in cases of espionage because doing so would have meant reopening the entire edifice of consular protection under Vienna Convention.
Pakistan’s strategy revolved around making chinks in the Indian narrative to make India appear suspect and its case weak.
On this basis, Pakistan argued that the absence of a stated exception in Article 36 to consular access in espionage cases meant that customary international law position or State practice existing at the time of the adoption of the Vienna Convention in 1964 would prevail. What was that customary international law position on espionage as per Pakistan?
That there was no consensus between states in 1964 (when the Vienna Convention was adopted) on whether there was an espionage exception to consular access. Pakistan’s counsel, Khawar Qureshi, called this “studied ambiguity” or posture of the States to maintain silence over a matter that they did not wish to discuss or open up.
In response to the above argument, India argued that the plain language of Article 36 of the Vienna Convention couldn’t be whittled down by State practice as claimed by Pakistan. India called on the ICJ to disregard Pakistan’s position that the customary international law position of States on espionage (“studied ambiguity”) existing at the time of the adoption of Vienna Convention would determine the law on the matter.
Read more: What are Pakistan’s options in ICJ on the Kulbhushan Case
India argued that..
Pakistan’s has shown a fundamental disregard for due process
India claimed that the trial and conviction of Mr. Jadhav under the Pakistan Army Act, 1952 by the military court was a flagrant violation of minimum due process under international law. India cited reports of international organizations and precedents of Pakistani Courts to establish the serious shortcoming in process.
India cited a report of the International Commission of Jurists that was submitted by it to the UN Human Rights Committee. This report called Pakistani military courts as not being independent in nature, their proceedings falling short of international fair standards and their judges not being required to have judicial training or even a law degree.
This report mentioned that the Pakistan Army Act, 1952 bars civilian courts from exercising their appellate jurisdiction over decisions of military courts and that the extraordinary writ jurisdiction of civilian courts of Pakistan to hear cases related to military courts is limited.
India cited reports of international organizations and precedents of Pakistani Courts to establish the serious shortcoming in process.
Mr. Salve quoted a decision by the Lahore High Court in which the father of a person convicted by the military court had challenged his son’s conviction on grounds of violation of the right of fair trial; however, this petition was dismissed by the High Court in a three-page order that did not address the specific concerns raised by the petitioner. This, for India, was emblematic of the grave and serious lacunas in Pakistan’s military courts.
India further claimed that international standards require the jurisdiction of military courts to be restricted to military offences committed by military personnel which is something wanting in the Pakistan military courts. To emphasize his point, India’s counsel quoted some statistics: in the 2 years since military courts were empowered to try civilians of terrorism-related offences, 274 civilians had been convicted “in opaque, secret proceedings”.
Read more: Ajit Doval and Kulbhushan: Configuring subversion inside Pakistan
Worryingly for India, “at least 159 out of 168 civilians (95 percent) whose convictions have been publicly acknowledged by the military had allegedly “confessed’ to the charges”. India, therefore, called Mr. Jadhav’s confession and conviction a travesty of justice.
ICJ’s attention was also drawn to a statement made by the Lahore High Court Bar Association which had criticized the ICJ’s 18 May 2017 provisional measures Order and threatened lawyers “who would dare to appear for Mr. Jadhav”. Calling this an “institutional bias” against Mr. Jadhav which would ensure his being at the “mercy of the military authorities for a fresh ‘trail’”, India called his conviction bad in law.
India argued that..
The 2008 Indo-Pak Bilateral Treaty does not matter
Pakistan claimed that the right of consular access in the case of Mr. Jadhav was circumscribed by a 2008 Bilateral Treaty entered between India and Pakistan that entitles either party in cases of arrest, detention or sentence of the others’ nationals made on political or security grounds, to examine the case on its merits.
India argued that bilateral treaties and agreements (such as the 2008 Bilateral Treaty) that create obligations of the parties can only supplement the provisions of the Vienna Convention and that on their own, bilateral treaties cannot modify rights and the corresponding obligations under multilateral treaties.
For India, the 2008 Bilateral Treaty was, therefore, a subset of the Vienna Convention. Interestingly, India also argued that “there is nothing in the 2008 Treaty that would suggest that India or Pakistan intended to derogate from Article 36 of the Vienna Convention”.
India also argued that it was “found necessary to have a bilateral treaty [2008 Bilateral Treaty] that could supplement the Vienna Convention” as India and Pakistan are neighbours on land and sea and nationals of one country may inadvertently end up landing in the territory of the other.
In an attempt to showcase Vienna Convention as part of the broader international human rights framework, India emphasized that the right of consular access under Article 36 evolved at a time when due process rights under international treaties such as the International Covenant on Civil and Political Rights, 1966 (a universal human rights treaty) (“ICCPR”) were taking shape.
Consequent to the adoption of ICCPR and other international human rights treaties on due process rights such as fair trial, right to communicate with the consular post etc., there was a degree of “cross-fertilization” of international jurisprudence whereby Article 36 became a “vital cog in the wheel of justice” and assumed the stature of a ‘principle of international law’”. In other words, India invited the ICJ to look at Article 36 as a principle of international law due process and not as a stand-alone provision of the Vienna Convention.
Read more: Will India answer Pakistan’s Six Questions about Kulbhushan at ICJ?
India argued that..
Pakistan has done abuse of process
India termed as “rhetoric” and “fallacy of circumlocution” Pakistan’s allegation that India had engaged in abuse of process by refusing to engage with Pakistan on the passport issue and that it had furnished Mr. Jadhav with a “false identity” so as to facilitate his travel to Pakistan to engage in espionage.
Similarly, Pakistan’s contention that India had failed to respond to mutual legal assistance or MLA requests from Pakistan suffered from flaws because there is no MLA treaty between the two countries. Above all, Pakistan failed to provide any evidence or material that would prima facie establish the commission of an offence by Mr. Jadhav.
8. Building Blocks of Pakistan’s Case before the ICJ
Pakistan argued that..
Consular Access does not apply in espionage cases
As mentioned above, Pakistan argued that the absence of a specific mention of an espionage exception in Article 36 of the Vienna Convention was a calculated move by the drafters and negotiators of the treaty who did not want to risk reopening the Vienna Convention, a treaty that like any other international agreement was the result of protracted negotiations.
For Pakistan, the fact that the then existing State position in the matter was preserved by the Vienna Convention is evident from the preamble of the Vienna Convention which states, “affirming that the rules of customary international law continue to govern matters not expressly regulated by the provision of the present convention”.
In other words, Pakistan claimed that the customary international law position on espionage (one of “studied ambiguity”) was preserved in the Vienna Convention itself. Mr. Qureshi cited India’s own historic position on the espionage exception: India’s Honorary Legal Advisor from 1954 to 1964, Biswanath Sen, in his textbook “A Diplomat’s Handbook of International Law had noted that, “A frequent exception to the consular rights to protect nationals and visit them in prison is the case of persons who are held on charge of espionage as evidenced by the practice of states”.
Read more: BBC omits ‘Kulbhushan Yadav’ from Asad Umar’s interview: Influence of India?
Pakistan argued that
State Parties didn’t give Response to ICJ’s invitation
Importantly, Mr. Qureshi noted that on 20th November 2017, the ICJ had invited 177 States parties to the Vienna Convention to address the ICJ on the question of whether Article 36 provides for a customary international law exception with regards to espionage. However, not a single State responded to the ICJ’s invitation.
This, Mr. Qureshi argued, was “powerful, indeed clear, cogent and compelling evidence of the desire of the States to, maintain… ‘studied ambiguity’ on this issue with the consequence that it simply cannot be said that the customary international law position has now crystallized to support the contention India advances [i.e. consular access applies in espionage cases]”.
Pakistan argued that…
The Nationality Argument holds – as in Avena Case
Mr. Qureshi also cited the ICJ’s Avena case (as was done by India). It was in this case that the ICJ had laid down the rule that a State that wishes to provide its national with diplomatic protection has the obligation to furnish evidence of nationality through a passport and birth certificate.
This was in response to the Indian contention that the nationality of Commander Jadhav had been admitted by Pakistan’s conduct i.e. through acknowledgment that he was an “Indian spy” and his conviction by the Pakistan military court. This, he argued, was not an excuse for India’s own failure to discharge its positive obligation to establish Mr. Jadhav’s nationality under international law.
Pakistan argued that…
The 2008 Indo-Pak Bilateral Treaty applies
Mr. Qureshi argued, no less, that India had unjustifiably disavowed the bilateral treaty titled “The 2008 Agreement on Consular Access” – an unequivocal agreement negotiated over three years between the two countries and which replaced an earlier agreement from 1982.
Paragraph (vi) of the 2008 Bilateral Treaty, quoted by Pakistan, reads: “In the case of arrest, detention, or sentence made on political or security grounds, each side my examine the case on its merits”.
India cited a report of the International Commission of Jurists that was submitted by it to the UN Human Rights Committee.
The above, Pakistan argued, underscored the unequivocally clear agreement of the two countries on the espionage exception to consular access. However, India had conveniently chosen to look the other way. Pakistan pointed out that the existence of this treaty had been confirmed by a spokesperson of the Indian Ministry of External Affairs on 13th April 2017.
Surprisingly, Mr. Qureshi noted, India was “pivotal in the drafting exercise in the conclusion of this treaty” [2008 Bilateral Treaty]. Thus, India’s failure to appreciate the plain meaning of Paragraph (vi) of the 2008 Bilateral Treaty suggested India’s bad faith and disregard of bilateral agreements.
Read more: Indian magazine Frontline acknowledges Jadhav as spy on RAW payroll
Elaborating on the “national security” exception under Paragraph (vi) of the 2008 Bilateral Treaty which India argued was a recipe for abuse by irresponsible States (an obvious reference to Pakistan), Mr. Qureshi pointed out that the present dispute was the first instance of the Vienna Convention being considered by the ICJ in the context of espionage since 1963. This not only established that the Vienna Convention had worked effectively for more than 50 years but also that States wished to maintain a position of “studied ambiguity” in the matter.
Pakistan argued that…
Pakistan’s military court and due process meets legal requirements
Pakistan called India’s arguments about its military courts as “India’s use of inflammatory language to insinuate” Pakistan’s military courts. Mr. Qureshi ran the ICJ through the due process standards applicable in the military courts of Pakistan and how, an accused, at different stages of the trial, is offered legal protections that are no less robust than those offered in other countries.
Pakistan engaged two renowned military law experts (Professor Charles Garraway and Brigadier Anthony Paphiti) to issue a report on Pakistan’s military courts. Amongst other things, the report observed that the military courts of Pakistan are “soundly based in statute which provides the substantive legal basis for their jurisdiction…” and that cases decided by military courts in their espionage jurisdiction are not “per se unfair or otherwise improper”.
Mr. Qureshi pointed out the Peshawar High Court’s October 2018 order that had set aside more than 70 convictions and sentences handed down by Pakistan’s military courts.
The report also noted the following in respect of due process rights under the Constitution of Pakistan: “Article 10 of the Constitution of Pakistan guarantees a defendant the right to consult and be defended by a legal practitioner of his choice. This constitutional right is reflected in Rule 23 of the Pakistani Army Rules 1954. This jurisdiction is not inconsistent with the practices and procedures common to military courts generally and does not appear to us to be manifestly unfair.”
Throughout its pleadings, Pakistan maintained that India made several attempts to mislead the ICJ. India made it appear that the ICJ in its own previous judgments had ruled that violation of Article 36 Vienna Convention would result in the grant of a remedy in the form of annulment of judgment. The following excerpt was quoted from the Avena case by Pakistan’s counsel:
“The question of whether violations of Article 36 paragraph 1, are to be regarded as having, in the causal sequence of events, ultimately led to convictions and severe penalties is an integral part of criminal proceedings before the courts of the United States [receiving State] as it is for them to determine in the process of review and reconsideration.
Read more: Kulbhushan pops up as India-Pakistan spar at the UN
In so doing, it is for the courts of the United States [receiving State] to examine the facts, and in particular, the prejudice and its causes, taking account of the violation of the rights set forth in the Convention”….
“It is not to be presumed, as Mexico [sending State] asserts that partial or total annulment of conviction or sentence provides the necessary and sole remedy”. In response to India’s contention that the Vienna Convention was part of the larger international human rights framework guaranteeing due process, the following excerpt from the Avena judgment was produced by Pakistan:
“Mexico [sending State] has further contended that the right to consular notification and consular communication under the Vienna Convention is a fundamental human right that constitutes part of due process in criminal proceedings and should be guaranteed in the territory of each of the Contracting Parties to the Vienna Convention”.
This jurisdiction is not inconsistent with the practices and procedures common to military courts generally and does not appear to us to be manifestly unfair.
“[A]ccording to Mexico [sending State], this right, as such, is so fundamental that its infringement will ipso facto produce the effect of vitiating the entire process of the criminal proceedings conducted in violation of this fundamental right. Whether or not the Vienna Convention rights are human rights is not a matter that this Court need decide.
Th[is] Court would, however, observe that neither the text nor the object and purpose of the Convention, nor any indication in the travaux préparatoires, support the conclusion that Mexico [sending State] draws from its contention in that regard.”
Taking serious exception to India’s assertions about the purported shortcomings in Pakistan’s justice system, Mr. Qureshi pointed out the Peshawar High Court’s October 2018 order that had set aside more than 70 convictions and sentences handed down by Pakistan’s military courts.
Read more: ICJ has not taken a position against Pakistan on Yadhav: Yet!
Pakistan argued that…
Lahore High Court Bar Association is not an organ of state
Regarding Mr. Salve’s contention that the statement by the Lahore High Court Bar Association suggested the actual threat to the due process rights of Mr. Jadhav, Mr. Qureshi retorted that as India had quoted a statement that did not emanate from an organ of the state, hence India’s claim about “institutional bias” against Mr. Jadhav was “laughable”.
Pakistan argued that…
India has appeared with ‘unclean hands’
The centrality of Pakistan’s approach lay in picking holes in the Indian narrative and highlighting its absurdity. Pakistan argued that India had abused the process by its refusal to answer why Mr. Jadhav, an individual admitted by India as being a member of its armed forces but one who had allegedly retired from service, was able to travel to and from India using an authentic Indian passport bearing a false identity in a Muslim name. Not to mention, India did not offer evidence that confirmed Mr. Jadhav’s retirement from service.
11. Analysis: Likely outcome in the Case
Suffice to say both India and Pakistan just ended up trading brilliant legal arguments before the World Court. Both sides picked holes in the others’ narrative and cited law and precedent that suited their position. And yet again, both sides indulged in mudslinging to make the other appear as having approached the World Court with sullied hands and ulterior motives.
Like any other case litigated before the World Court, the outcome of the case will largely depend on how judges representing different countries on the seat of the ICJ view the evidence and arguments produced by the parties.
India has no legal basis for seeking annulment of the conviction in the face of a robust and functioning civilian court system in Pakistan.
At the end, the Indian bargain is to seek ICJ’s determination that Article 36 of the Vienna Convention was violated by Pakistan. Flowing from that, India seeks an annulment of Mr. Jadhav’s conviction (best possible outcome) or, in the alternative, his trial by the civilian courts of Pakistan (second-best outcome). Either of these outcomes will be very unlikely for India.
Given that the onus of proof in a legal dispute is on the party that alleges a matter before a court of law (let alone a World Court), India will have a difficult time convincing the ICJ that Article 36 of the Vienna Convention, as a matter of positive obligation, required Pakistan to provide consular access to Mr. Jadhav – an individual suspected, charged, tried and convicted of espionage.
India’s arguments on their own do not establish beyond doubt that States are under an obligation to provide consular access in the case of individuals suspected of having indulged in espionage. Pakistan’s bad faith and disregard of due process under international human rights treaties as alleged by India will not, on its own, weaken Pakistan’s position or correspondingly strengthen India’s case.
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India will find it hard to convince the ICJ that the 2008 Bilateral Treaty is not applicable to consular relations between the two countries. The 2008 Bilateral Treaty will shine bright before the ICJ as is borne out by its title: “The 2008 Agreement on Consular Access”. This treaty demonstrably creates a national security exception and allows either India or Pakistan to determine the case “on its merits”.
Moreover, India will be unlikely to convince the ICJ to view the 2008 Bilateral Treaty from the prism of the Vienna Convention and thus downplay its significance. Above all, India has offered no explanation as to why it drafted and negotiated the 2008 Bilateral Treaty if it did not intend for it to govern consular relations with Pakistan as its title suggests.
India’s best hope is that the ICJ orders Mr. Jadhav’s trial to be conducted in accordance with Article 199 of the Constitution of Pakistan.
India’s position that the 2008 Bilateral Treaty was “irrelevant” and did not occupy a high pedestal in the parties’ overall bargain is based on a misconceived and flawed interpretation of international law. Moreover, as there is no conflict or contradiction between Article 36 of the Vienna Convention and the 2008 Bilateral Treaty, the World Court will not substitute its own judgment for what has been expressly agreed in a bilateral treaty between two sovereign countries.
If indeed India had responded positively to Pakistan’s requests for mutual legal assistance on Mr. Jadhav’s nationality and the passport issue, India could very well have adduced before the ICJ evidence shared with Pakistan, and consequently argued at the ICJ that it came with “clean hands” and that it was instead Pakistan that had failed to discharge its obligations.
This would have also shifted the burden of proof on Pakistan to establish India’s malafide intentions. A failure on this count was arguably a wasted opportunity for India. Moreover, India’s seeking annulment of Mr. Jadhav’s conviction is very optimistic and something that goes beyond ICJ’s own previous judgments.
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As India’s main prayer of seeking annulment of Mr. Jadhav’s conviction is directly linked to its main prayer that Pakistan had violated the Vienna Convention, even assuming India establishes Pakistan’s violated Article 36, India has no legal basis for seeking annulment of the conviction in the face of a robust and functioning civilian court system in Pakistan.
In the circumstances, India’s best hope is that the ICJ orders Mr. Jadhav’s trial to be conducted in accordance with Article 199 of the Constitution of Pakistan (which remedy has been available to Mr. Jadhav and his family since his conviction). If indeed ICJ grants this relief to India, it would be a legal and moral victory for Pakistan as it has been claiming that “review and reconsideration” before the High Court of Pakistan is the appropriate remedy.
Hassan Aslam Shad is the head of corporate and international practice of a leading law firm of Oman. He is a graduate of Harvard Law School, U.S.A. with a focus in international law. Over the years, Hassan has written extensively on topics of law including public & private international law and international relations. Hassan has the distinctive honor of being the first person from Pakistan to intern at the Office of the President of the International Criminal Court, The Hague. Hassan is thrice gold medalist in LL.B. He has also represented Pakistan at the prestigious Jean Pictet international law moot court competition. Hassan can be reached at: email@example.com.
The views expressed in this article are the author’s own and do not necessarily reflect the editorial policy of Global Village Space.