ICJ stays Jadhav’s execution, says it has jurisdiction in case brought by India

The UN’s top court on Thursday announced its ruling on an urgent bid by India to stop Pakistan from executing a death sentence for Kulbushan Jadhav, one of its nationals convicted of spying and subversive activities in Pakistan.

Rejecting Pakistan’s argument that the court did not have jurisdiction in the matter, the court reasoned it could hear the case because it involved, 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.

“[Meanwhile] Pakistan should take all measures to ensure that Mr Jadhav is not executed till the final decision of this court,” the court said.

The court also said Pakistan should inform it of all measures taken in implementation of the order.

The president of the court, Ronny Abraham, read out the decision.

After the order was announced, Attorney General Ashtar Ausaf reasoned that the ICJ had directed for “the status quo [to] be maintained in the case” — ie, that Jadhav’s status remain as it stands right now, with the execution of his sentence delayed till the court deliberates the case.

Moazzam Ahmad Khan and Dr Deepak Mittal wait for judges to enter and read the World Court’s verdict. ─ AP
Moazzam Ahmad Khan and Dr Deepak Mittal wait for judges to enter and read the World Court’s verdict. ─ AP
“The court has clearly underscored that the provisional measures are without prejudice to the final determination of the merits and jurisdiction of the case,” he pointed out in a written statement. “The provisional measures are a procedural process only to enable the court to have full consideration at a later hearing,” he said.

“These measures have no bearing whatsoever on the final decision of the Court,” he added, meaning that this was only a temporary relief granted by the court.

He also responded to critics who said Pakistan should not have accepted the ICJ’s jurisdiction, saying: “Pakistan attended the hearing out of its utmost respect for the court and pursuant to the established jurisprudence that the challenge to jurisdiction can be made via appearance and not by abstaining from the process.

“In addition, Pakistan attended because of its conviction that the only way to resolve all outstanding issues is through peaceful means. We are confident that India would not be able to hide the subversive activities it is trying to carry out through its agents like Commander Jadhav,” he added.

The court’s reasoning

In a press release posted to the ICJ’s website, the court provided its reasoning for the order it had issued.

“The Court begins by considering whether it has jurisdiction prima facie to hear the case. It recalls that India seeks to ground its jurisdiction in Article I of the Optional Protocol to the Vienna Convention, which provides that the Court has jurisdiction over “[d]isputes arising out of the interpretation or application of the [Vienna] Convention”.

Presiding judge Ronny Abraham of France, right, enters to read the World Court’s verdict in the case brought by India against Pakistan in The Hague, Netherlands. ─ AP
Presiding judge Ronny Abraham of France, right, enters to read the World Court’s verdict in the case brought by India against Pakistan in The Hague, Netherlands. ─ AP
“In this regard, the Court notes that the Parties do indeed appear to have differed, and still differ today, on the question of India’s consular assistance to Mr. Jadhav under the Vienna Convention.

“It further notes that the acts alleged by India […] appear to be capable of falling within the scope of the Convention. In the view of the Court, this is sufficient to establish that it has prima facie jurisdiction under Article I of the Optional Protocol.

“The Court further observes that the existence of a 2008 bilateral Agreement between the Parties on consular relations does not change its conclusion on jurisdiction.

“The Court then turns to the question whether the rights alleged 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 Court then focuses 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 Article 36, paragraph 1, of the Vienna Convention, are preserved.

“Therefore, a link exists between the rights claimed by India and the provisional measures being sought.

“The Court then examines whether there is a risk of irreparable prejudice and urgency. It considers that the mere fact that Mr. Jadhav is under a death sentence and might therefore be executed is sufficient to demonstrate the existence of a risk of irreparable prejudice to the rights 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.

“The Court concludes by indicating the following measures:

“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.

“The Court also decides that, until it has given its final decision, it shall remain seised of the matters which form the subject-matter of this Order.”

Pakistan’s argument

The arguments for Pakistan had been presented to the court on Monday in an emergency hearing swiftly organised on Monday on India’s appeal.

Ambassador Moazzam Ahmad Khan, Dr Muhammad Faisal and Syed Faraz Hussain were present at the Peace Palace as members of Pakistan’s legal team.

Khawar Qureshi led Pakistan’s arguments, while Asad Rahim Khan and Joseph Dyke were present on Pakistan’s behalf for the proceedings in The Hague.

Pakistani representatives had reminded the court that Jadhav “has confessed to having been sent by India to wage terror on the innocent civilians and infrastructure of Pakistan”.

They had also argued that, according to the Vienna Convention, the court had no jurisdiction to hear such a case.

They said the self-confessed Indian spy was sentenced to death after fulfilling all necessary legal procedures and that he was also given legal counsel to defend the allegations against him.

Qureshi had argued that the ICJ is not a criminal court and cannot decide such type of cases relating to national security.

He further appealed to the court to dismiss the Indian application, saying that “there is no agency”.

The counsel for Pakistan had argued that the provisions of the Vienna Convention do not apply to a “spy involved in terror activities”.

Qureshi said that Jadhav “is a terrorist” and “India invoked the jurisdiction of this court improperly.”

“This court exists to ensure that states engage in peaceful resolution of disputes. This court does not exist for time-wasting and political grandstanding,” he maintained.

“India’s allegation regarding the kidnapping of its spy is not true and he [Jadhav] was arrested by Pakistani forces from Balochistan,” he maintained.

India seeks urgent action

Lawyers for New Delhi had urged the ICJ to halt the execution.

Dr Deepak Mittal, joint secretary of India’s Ministry of External Affairs, third from left, and Moazzam Ahmad Khan, head of Pakistan’s delegation and ambassador, second right, wait for judges to enter and read the World Court’s verdict in The Hague, Netherlands. ─ AP
Dr Deepak Mittal, joint secretary of India’s Ministry of External Affairs, third from left, and Moazzam Ahmad Khan, head of Pakistan’s delegation and ambassador, second right, wait for judges to enter and read the World Court’s verdict in The Hague, Netherlands. ─ AP
India denied Jadhav was a spy, and on Monday accused Pakistan of “egregious violations of the Vienna convention” by denying him access to legal counsel and consular visits, and refusing to reveal the charge sheet against him.

Jadhav was “an innocent Indian national, who, incarcerated in Pakistan for more than a year on concocted charges … has been held incommunicado… and faces imminent execution,” Indian lawyer Deepak Mittal told the tribunal on Monday.

What we know about Jadhav

He was the contact man for Anil Kumar Gupta, the joint secretary of
RAW, and his other operatives in Pakistan

He was tasked with disrupting development of CPEC, with Gwadar port as a special target

Jadhav is still a serving officer in the Indian Navy and will be due for retirement in 2022

He started carrying out intelligence based operations in 2002 and in 2003 established a small business in Chabahar, Iran

Jadhav directed various activities in Karachi and Balochistan at the behest of RAW

He was involved in activities of ‘anti-national or terrorist nature’

This is a developing story which will be updated as the court’s judgment is made clearer.

Source: Dawn