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Friday 24, January 2020
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Stage set for ‘effective’ trial

The International Court of Justice (ICJ) decision in the Kulbhushan Jadhav case is a signal legal success for India.

Vivek Katju
Ex-secretary, Ministry of External Affairs

The International Court of Justice (ICJ) decision in the Kulbhushan Jadhav case is a signal legal success for India. By an overwhelming majority of 15-1, the court has ruled in India’s favour on the critical issue of consular access. It has held that the right of consular access to a foreign national and his state, in keeping with the provisions of the Vienna Convention of Consular Relations (VCCR), cannot be circumscribed or taken away on account of allegations of espionage and involvement in terrorism. The court has found Pakistan guilty of not doing so and has directed that this should be done without further delay. It has also found that Pakistan did not inform India of Jadhav’s detention in a timely manner as required by the VCCR.

In a bold and timely assertion, India had virtually asked the ICJ to embed the provisions of human rights law, as contained in the International Covenant on Civil and Political Rights (ICCPR) in Article 36 of the VCCR. It had argued that the denial of access amounted to an assault on Jadhav’s basic rights which had vitiated all judicial proceedings against him to such a degree that fairness demanded his release. The court decided not to go into this territory but keeping within the VCCR itself observed that its violation obliges Pakistan to ‘provide by means of its own choosing, effective review and reconsideration of the conviction and sentence of Mr Jadhav, so as to ensure that full weight is given to the effect of the violation of the rights set forth in Article 36 of the Vienna Convention, taking account of paragraphs 139, 145 and 146 of this judgment’.

The paragraphs under reference deal with the process by which ‘review and reconsideration’ will become effective. It instructs that the implications of the denial of access on the fairness of trial should be fully examined, particularly focusing on ‘any potential prejudice and the implications for the evidence and the right of defence of the accused should receive close scrutiny during the review and reconsideration’. The ICJ notes that ‘Pakistan shall take all measures to provide effective review and reconsideration, including, if necessary, by enacting appropriate legislation’.

Notwithstanding Pakistan’s projection that it has succeeded because the ICJ has not specifically ordered the annulment of Jadhav’s secret military trial nor his release or return to India, the fact is that the judgment has caused it great discomfiture. This is evident from the Pakistan judge’s critique of the majority judgment’s rejection of all Pakistan’s legal objections regarding India’s abuse of process and, indeed, of Pakistan’s view on consular access itself. Thus, the Pakistan army’s claim that the judgment is ‘another February 27 for India; they have been surprised again’ is all hot air. India had told the ICJ that if it could not order Jadhav’s release, judicial proceedings should be held in an open Pakistan civilian court and that he should be able to choose his defence counsel after access is given to him. The court’s elaborate insistence on effective review amounts to going along with India’s desire.

India’s international law team has delivered. What will happen now? After welcoming the court’s decision not to order his acquittal and repeating familiar and baseless charges of the case being one of Indian state terrorism, Pakistan has obfuscated. Its foreign ministry stated, ‘Having heard the judgment, Pakistan will now proceed as per law.’ Certainly, Pakistan cannot deny access, but, as of now, it is certain that it will want to continue to use the case to try to put the focus on India’s so-called state terrorism. That the international community has ignored Pakistan’s efforts for over three years will not deter it from trying.

The Pakistan judge’s dissent contains a clue on a possible way the country’s establishment may proceed. He notes in paragraph 14 that two separate cases have been filed against Jadhav, one for espionage and the other ‘under anti-terrorism laws’. The espionage case has been decided in a Field General Court Martial. The judge clarifies that this case could proceed because Pakistan had sufficient evidence to ‘try and convict’ him. However, the case relating to terrorism offences has not ‘proceeded’ because Pakistan’s request for ‘India’s assistance regarding its investigation into the authenticity of the passport that Mr Jadhav was carrying, access to his bank and cell phone records and interrogating the accomplices and handlers named by him’ has been ignored.

Pakistan had made the request on January 23, 2017. The list of so-called accomplices and handlers contained the names of senior officers, retired and serving, of R&AW, a retired Navy Chief. Also mentioned was Jadhav’s wife, though not by name. While NSA Ajit Doval’s name was in the FIR of the case, it is omitted from the list. India correctly dismissed the list as propaganda.

 On March 21, 2017, Pakistan linked India’s request for access to its response to its request for assistance in investigations. Ten days later, India responded guardedly, emphasising that access was an essential ‘pre-requisite in order to verify the facts and understand the circumstances of his presence in Pakistan’. After it gives access, Pakistan will no doubt repeat the assistance request if it wishes, as appears till now, to continue to propagandise against India.

India’s political, diplomatic and security managers have to brace themselves for further struggle to get Jadhav safely back to India, though the ICJ decision is an important and essential step in this process. This is the inevitable consequence of Pakistan’s objective of using him as a propaganda ploy instead of following the wise, time-honoured low-key approach in such matters.

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