The Man Who Pushed India-Pakistan In Legal Battle
In a major diplomatic and legal victory for India in the Kulbhushan Jadhav case, the International Court of Justice (ICJ) on Wednesday directed Pakistan to review his conviction and, until then, put his death sentence on hold. The court also asked Islamabad to allow New Delhi consular access at the earliest.
In a 15-1 order, the ICJ held that Jadhav's execution will remain on hold until Islamabad "effectively reviews and reconsiders" his conviction. "A continued stay of execution constitutes an indispensable condition for the effective review and reconsideration of the conviction and sentence of Mr Kulbhushan Sudhir Jadhav."
PM Narendra Modi welcomed the order. "We welcome today's verdict in the @CIJ_ICJ. Truth and justice have prevailed. Congratulations to the ICJ for a verdict based on extensive study of facts. I am sure Kulbhushan Jadhav will get justice. Our government will always work for the safety and welfare of every Indian," he tweeted.
Advocate Harish Salve, who represented India at the ICJ, said: "The order assures a fair trial. There is, in fact, an obligation of result on Pakistan. And if the trial is not fair, we can go back and knock the doors of the ICJ."
What this effectively means is that the death sentence awarded to Jadhav by a military court in Pakistan is stayed until probably a civil court, where the accused will have better representation, hears the case afresh.
Pak Violated Vienna Convention: ICJ
The court ruled decisively in favour of India's plea to allow it full consular access to Jadhav, which has so far been denied. Judge Gilani from Pakistan was the only one to go against the majority judgement. The judge from China, vice president Xue, also voted in favour of the judgement.
The court, however, rejected India's plea for annulment of Jadhav's conviction by the military court in Pakistan and his immediate release.
The Hague-based ICJ concluded that Islamabad had violated Article 36 of the Vienna Convention of Consular Relations, 1963, by not informing New Delhi about Jadhav's arrest immediately after Pakistan Army had taken him into custody.
In its appeal, India had challenged the "farcical trial" that Jadhav was put through on the basis of what it called an extracted confession, and asked the court to instruct Pakistan to annul the sentence and allow India consular access.
The verdict was read out at a public sitting of the United Nations court. The session was held under the Presidency of Judge Abdulqawi Ahmed Yusuf.
"Pakistan's objection based on 'clean hands' doctrine must be rejected," said Judge Yusuf, reading the verdict. "Pakistan has not explained how any of the wrongful acts allegedly committed by India may have prevented Pakistan from fulfilling its obligation," the court further noted.
"The court finds that it has jurisdiction to entertain India's claims. India was under no obligation to consider other dispute settlement mechanisms prior to instituting proceedings. Thus, Pakistan's objection based on alleged non-compliance cannot be upheld."
The court found that Pakistan deprived India of the right to communicate with and have access to Jadhav, to visit him in detention and to arrange for his legal representation, and thereby breached obligations incumbent upon it under the Vienna Convention.
"International Court of Justice has directed Pakistan to grant consular access to #Kulbhushan Jadhav. It is no doubt a big victory for India," Defence Minister Rajnath Singh tweeted.
Former Foreign Minister Sushma Swaraj, who had earlier led India's charge in the case, tweeted, "I wholeheartedly welcome the verdict of International Court of Justice. It is a great victory for India."
The verdict in the high-profile case comes nearly five months after a 15-member Bench of the ICJ, led by Judge Yusuf, reserved its decision on February 21 after hearing oral submissions by India and Pakistan. The proceedings lasted two years and two months.
Jadhav, 49, is a retired officer of the Indian Navy. He was arrested by Pakistani Security Forces on March 3, 2016. Pakistan claims he was arrested near the Pak-Afghan border of Chaman in Balochistan after he illegally entered the country. India, on the other hand, argues that Pakistan abducted Jadhav from Iran.
How the Kulbhushan Jadhav saga unfolded
The arrest of Indian spy Kulbhushan Sudhir Jadhav became the talking point for millions of people living on either side of the India-Pakistan border after news emerged on March 3, 2016, that he was captured by the Pakistani military in Balochistan while trying to cross into the country from Iran.
The military termed his capture the "proof of Indian interference and state-sponsored terrorism". What followed in the months to come was a saga of India's counter-claims; confessions and accusations; and a Field General Court Martial trial for Jadhav on espionage, sabotage and terrorism charges, until the case landed in the International Court of Justice (ICJ).
India approached the World Court against the Pakistani military tribunal's decision to sentence Jadhav to death, and a stay was granted on his execution.
The spy's case, which had stretched on for more than three years, took a decisive turn when the ICJ ruled on India's objection on July 17, finding that he has a right to consular access and requested Pakistan to reconsider his sentence.
Dawn.com recaps the major developments that have taken place since Jadhav's arrest in March 2016.
March 3, 2016
Kulbhushan Jadhav, an alleged Research and Analysis Wing (RAW) agent operating under the cover name of Hossein Mubarak Patel, is arrested in a counter-intelligence operation in Balochistan's Mashkel area for his involvement in espionage and sabotage activities against Pakistan.
March 25, 2016
A confessional statement is released by the Inter-Services Public Relations in which Jadhav claims to be a serving Indian Navy officer. New Delhi issues a statement the same day, claiming that he was a former navy officer and is not currently serving. India denies any links with the spy and seeks consular access to him. It also says there is no evidence of his arrest in Balochistan.
April 8, 2016
Pakistan lodges First Information Report against Jadhav in Counter-Terrorism Department Quetta.
May 2, 2016
Initial interrogation is carried out of the Indian spy.
June 16, 2016
Since Jadhav was arrested for trying to illegally cross Iran to enter Balochistan, the Pakistani government contacts Iran and on June 16, Iran finally responds. The contents of its response are not shared with the media.
Pakistan's Ambassador to the United Nations Maleeha Lodhi presents a dossier to the UN Chief regarding India's involvement in cross-border terrorism in Pakistan and Jadhav's arrest.
April 10, 2017
Jadhav is court-martialled and sentenced to death by a military tribunal for espionage. India deems the death penalty handed through a Field General Court Martial as "pre-meditated murder".
April 15, 2017
The Lahore High Court Bar Association (LHCBA) warns lawyers against pursuing the appeal of Jadhav against his conviction by the military court.
LHCBA Secretary Amir Saeed Rawn says that the lawyers will not allow release of Jadhav who has been "found guilty of playing with the lives of innocent people in Pakistan".
May 08, 2017
India moves the International Court of Justice against Pakistan, accusing the latter of violating the Vienna Convention in Jadhav's case.
May 18, 2017
ICJ stays Jadhav's execution by Pakistan "till the final decision of this court".
The UN's top court also rejects Pakistan's argument that the ICJ does not have jurisdiction in the matter, reasoning that it can hear the case because it involves, on the face of it, an alleged violation of one of the clauses of the Vienna Convention, which both Pakistan and India ascribe to and whose interpretation falls under its purview.
June 22, 2017
A second confessional statement of Jadhav is released in which he admits to working with the banned Baloch Liberation Army and Baloch Republican Army to carry out subversive activities in Balochistan. He also seeks mercy from the Army Chief over his death sentence.
India submits written pleadings to the ICJ, accusing Pakistan of violating the Vienna Convention by denying consular access to Jadhav.
November 10, 2017
Pakistan offers a meeting between Jadhav and his wife, in Pakistan, on humanitarian grounds.
December 13, 2017
Pakistan submits its counter-memorial to India's claim before the ICJ. In the counter-memorial, it argues that the Vienna Convention does not apply to spy operations.
December 25, 2017
The Foreign Office hosts a meeting between Jadhav and his mother and wife. The meeting held as a goodwill gesture ends in a diplomatic spat between the two countries over the security checks Jadhav's mother and wife underwent and the language restrictions during the meeting.
January 6, 2018
Indian news website The Quint publishes an article stating that Jadhav was employed by RAW as part of "renewed efforts to use human sources as deep penetration agents in Pakistan". The article is retracted by the website within hours.
February 2, 2018
A major Indian magazine, Frontline, in an article acknowledges that Jadhav may be a serving Indian Navy Officer and that India is waging a covert war against Pakistan.
February 6, 2018
An official tells Dawn that Jadhav is now undergoing trial on terrorism and sabotage charges. Meanwhile, Pakistan seeks access to 13 Indian officials to ascertain information about the Jadhav case but New Delhi remains uncooperative.
February 19, 2019
The first official confrontation since the Pulwama attack takes place between Pakistan and India as the ICJ begins its four-day public hearing. New Delhi asks the UN's top court to annul Jadhav's conviction.
July 4, 2019
The ICJ announces through a press release that it will deliver its final judgement in the Jadhav case on July 17.
July 17, 2019
The ICJ delivers its judgment on the merits in the Jadhav case ruling that he has a right to consular access and notification.
The Court requests Pakistan to review the original verdict and reconsider his sentence. However, most of India's appeals, including his release and safe passage to India are rejected.
(Compiled from TOI and Dawn)