The Hague, India on Thursday scored a major diplomatic, moral and legal victory when the International Court of Justice (ICJ) directed Pakistan not to execute alleged spy Kulbhushan Jadhav pending its final decision and inform it of the steps being taken to implement the order.
“Pakistan shall take all measures at its disposal to ensure that Mr. Jadhav is not executed pending the final decision in these proceedings and shall inform the court of all the measures taken in implementation of the present order,” ICJ President Ronny Abraham said in the operative portion of the unanimous order which he read out in the open court for nearly 30 minutes.
“The court also decides that until it has given its final decision, it shall remain seized of the matters which form the subject matter of this order,” he said.
There are 10 judges, including Justice Dalveer Bhandari of India, apart from the President which form the court.
In a declaration appended to the judgment Justice Bhandari concurred with the court on its indication of provisional measures but sought to place on record his views concerning the requirements for indicating these measures in more detail.
“…In addition to issues of consular relations, this is a case in which it regrettably appears, on a preliminary examination of the facts, that the basic human rights of Jadhav have been violated by not allowing India to have consular access to him after his arrest and during the pendency of the criminal proceedings against him in Pakistan,” Justice Bhandari said.
The ruling comes 10 days after India approached the UN’s top court for provisional measures of protection — an interim relief. The court had earlier written to Pakistan Prime Minister Nawaz Sharif to see that Jadhav was not executed.
Officials of both the countries were present when the judge asked the registrar to read out the order to both the parties.
In a public hearing on Monday, India sought the court’s intervention to annul the death sentence given by a Pakistan military court to Jadhav who Islamabad says was arrested in Balochistan on charges of spying, sabotage and terrorism.
India has maintained that he was abducted from Iran and taken to Balochistan. The army court had sentenced him to death on a “confessional” statement he had made in military custody.
India accused Pakistan of violating the Vienna Convention by denying consular access to Jadhav and pronouncing him guilty of espionage in a “farcical trial”.
Pakistan, however, rejected the Indian argument on the ground that New Delhi had no right to invoke the jurisdiction of the ICJ and that the Vienna Convention does not provide for matters relating to spies, terrorists and those who indulge in espionage.
Giving its interim decision on the application moved by India against Jadhav’s execution, Justice Abraham said the court was unanimous in indicating the “provisional measures that give the rights to the subject of judicial proceedings”.
In the detailed order, the court said prima facie it felt that it had jurisdiction to go into the matter given the details of the present case.
The court also found that there exists a lien between the rights India seeks to assert and the provisional measures the court can deploy.
“The court will affirm that its order on provisional measures under Article 41 of the statute has binding effect that creates international legal obligation for any party to whom the provisional measures are addressed.
“The decision given in the present proceedings will in no way prejudice the jurisdiction of the court to deal with the merits of the case or any question relating to the admissibility of the application of the merits themselves. It is unaffected right of the governments of India and Pakistan to submit arguments in respect of those questions.”
Justice Abraham noted the Pakistan counsel’s statement that Jadhav would not be executed till August but there was no assurance that he would not be executed after that.
The court also noted that Jadhav should have been given consular access as sought by India.
Referring to the issue of jurisdiction to hear the case, the court said it noted India’s stand that the alleged failure by Pakistan to provide consular notifications regarding the arrest and detention of Jadhav as well as the alleged failure to allow communication and provide access to him “appear to be capable of following within the scope of the Vienna Convention”.
“In the view of the court, this is sufficient to establish that it has prima facie jurisdiction under Article 1 of the optional protocol. The court further observes that the existence of a 2008 bilateral agreement between the parties on consular relations doesn’t change its conclusion on jurisdiction,” the order said.
The court also upheld India’s stand that whether the rights sought by India are at least plausible.
“It observes that the rights to consular notification and access between a state and its nationals, as well as the obligations of the detaining state to inform the person concerned without delay of his rights with regard to consular assistance and to allow their exercise, are recognized in Article 36, paragraph 1, of the Vienna Convention, and that India has alleged violations of this provision. In the view of the court, therefore, it appears that the rights alleged by India are plausible,” the order said.
The court then focused on the issue of the link between the rights claimed and the provisional measures requested. “It considers that the measures requested are aimed at ensuring that the rights contained in the Article 36, para 1, of the Vienna Convention, are preserved. Therefore, a link exists between the rights claimed by India under provisional measures being sought.”
On the issue whether there is a risk of irreparable prejudice and urgency, the court considered that the near fact that Jadhav was under a death sentence and might therefore be executed was sufficient to demonstrate the existence of risk as claimed by India.
“The court further observes that Pakistan has indicated that any execution of Mr. Jadhav would probably not take place before the month of August 2017. This means that there is a risk that an execution could take place at any moment thereafter before the court has given its final decision in the case.
“The court also notes that Pakistan has given no assurance that Mr. Jadhav will not be executed before the court has rendered its final decision. In those circumstances, the court is satisfied that there is urgency in the present case.”