The International Court of Justice renders its judgment in the Jadhav case (India v. Pakistan)

On 8 May 2017, India instituted proceedings before the International Court of Justice (ICJ) against Pakistan, accusing the latter of ‘egregious violations of the Vienna Convention on Consular Relations’ (VCCR) (p. 4). The dispute concerns the treatment of an Indian national, Mr. Kulbhushan Sudhir Jadhav, who was detained, tried and sentenced to death by a military court in Pakistan.

In this post, I will give a brief overview of the background of the case and the claims submitted by India, followed by the provisional measures decision and the judgment on jurisdiction, admissibility and merits, pronounced in open court on 17 July 2019.

Application instituting proceedings

In its Application, India claimed that, on 3 March 2016, Mr. Jadhav was ‘kidnapped from Iran, where he was carrying on business after retiring from the Indian Navy, and was then shown to have been arrested in Baluchistan’ (para. 13) on suspicion of espionage and sabotage activities.  India stated that it was not informed of Mr. Jadhav’s detention until 22 days after his arrest and Pakistan failed to inform Mr. Jadhav of his rights under the VCCR. Allegedly, the Pakistani authorities refused to give India consular access to Mr. Jadhav, despite repeated requests.

Indian further argued that, on 23 January 2017, Pakistan requested assistance in the investigation of Mr. Jadhav’s involvement in espionage and terrorist activities (para. 7 – Annex 2). Moreover, Pakistan had stated that ‘consular access [to Mr. Jadhav would] be considered in the light of the Indian side’s response to Pakistan’s request for assistance in [the] investigation process’ (para. 11 – Annex 3). In this respect, India claimed that ‘linking assistance to the investigation process to the grant[ing] of consular access was by itself a serious violation of the Vienna Convention’ (para. 12).

India accordingly asked the ICJ (paras. 28 and 60):

1. To find jurisdiction on the basis of the Optional Protocol to the VCCR;
2. To order the immediate suspension of the death sentence of the accused;
3. To declare that the sentence of the military court, arrived at in defiance of the VCCR and ‘elementary human rights’ as incorporated in the International Covenant on Civil and Political Rights, is in violation of international law;
4. To restrain Pakistan from giving effect to the sentence awarded by the military court, and direct it to take steps to annul the decision of the military court;
5. To declare the decision illegal if Pakistan was unable to annul it, as it is in violation of international law and treaty rights, and to restrain Pakistan from further violating international law by giving effect to the sentence or the conviction in any manner, and to direct it to release Mr. Jadhav forthwith.

Provisional measures

Together with its Application Instituting Proceedings, India also filed a request for provisional measures on the ground that the alleged violation of the VCCR by Pakistan ‘has prevented India from exercising its rights under the Convention and has deprived the Indian national from the protection accorded under the Convention’ (para. 18). Pending final judgment, India requested the Court to indicate (para. 22) that:

First, Pakistan had to take all measures necessary to ensure that Mr. Jadhav is not executed;

Second, Pakistan had to report to the Court the action it has taken in this regard; and

Third, Pakistan had to ensure that no action would be taken that might prejudice the rights of India or Mr. Jadhav with respect of any decision on the merits of the case.

In its Order of 18 May 2017, the Court decided that Pakistan had to ‘take all measures at its disposal to ensure that Mr. Jadhav is not executed pending the final decision […] and […] inform the Court of all the measures taken in implementation of [this] Order’ (para. 61) – as predicted in a previous post. Pakistan complied with this decision.

Judgment on jurisdiction, admissibility and merits

On 17 July 2019, the Court rendered its final judgment in the case – showing overall significant agreement on the bench (unanimity on jurisdiction and 15 votes to 1 on admissibility and merits). The various findings included the following:

1. Jurisdiction and admissibility (paras. 33-66)

First, the Court had jurisdiction on the basis of the Optional Protocol concerning the Compulsory Settlement of Disputes to the VCCR.

Second, India’s application was admissible. Pakistan’s objections relating to an alleged abuse of process (the request for provisional measures was not considered abusive) and an alleged abuse of rights (Mr. Jadhav is undoubtedly an Indian national and India had not violated its international obligations under UN Security Council Resolution 1373 on preventing and suppressing the financing of terrorist acts) were rejected, as was the argument based on India’s own alleged unlawful conduct (‘clean hands’ doctrine).

2. Application and violation of Article 36 of the VCCR (paras. 67-124)

The Court then moved to the arguments on the merits, starting with the finding that persons suspected of espionage are not excluded from the protection offered under Article 36 of the VCCR. Pakistan had claimed that its 2008 Agreement with India on Consular Access provided for a lex specialis which arguably excluded the application of the VCCR. The Court disagreed, holding that the 2008 merely formed a subsequent agreement, but did not displace the obligations under Article 36.

Third, by not informing Mr. Jadhav without delay of his rights under Article 36(1)(b) of the VCCR (not contested), Pakistan had breached its obligations under that provision.

Fourth, by not notifying the appropriate consular post of India in Pakistan without delay of the detention of Mr. Jadhav and thereby depriving India of the right to render the assistance provided for, Pakistan had breached its obligations under Article 36(1)(b) of the VCCR.

Fifth, Pakistan had deprived India of the right to communicate with and have access to Mr. Jadhav, to visit him in detention and to arrange for his legal representation, and thereby had breached its obligations under Article 36(1)(a) and (c) of the VCCR.

In this context, Pakistan’s argument that India’s refusal to assist in the investigations formed an abuse of rights, was rejected. A receiving State’s obligations in terms of allowing for consular access cannot be conditioned on the sending State’s ‘clean hands’.

3. Remedies (paras. 125-148)

Sixth, Pakistan is under an obligation to inform Mr. Jadhav without further delay of his rights and to provide Indian consular officers access to him.

Seventh, Pakistan has the obligation to provide effective review and reconsideration of the conviction and sentence of Mr. Jadhav. Pakistan can, however, choose its own means for complying with this obligation.

Eighth, a continued stay of execution constitutes an indispensable condition for the effective review and reconsideration of the conviction and sentence of Mr. Jadhav.

The final three findings, addressing the way forward, arguably form the most interesting aspects of the ruling, but could also result in further disagreements between the parties. In particular, how should we interpret ‘effective review and reconsideration of the conviction and sentence’? Probably, this would require a re-trial, and this time not by a military court, as that could cast doubts on the impartiality and independence of the review.

This does not mean, however, that Mr. Jadhav is ‘off the hook’: it would seem likely that, unless a diplomatic solution is found, he will have to stand trial again in Pakistan, since a trial on a charge of espionage and terrorist activities would not in itself form a breach of the VCCR. As long as Indian consular officers would have access to Mr. Jadhav and be able to give assistance, it could well be that a new court would arrive at the same verdict – depending on the strength of the evidence.

As such, the Jadhav judgment is consistent with, and further reinforces, the ICJ’s LaGrand and Avena judgments: the Court shows willingness to intervene but largely on procedural grounds. Arguably, the Jadhav judgment goes somewhat further than the previous rulings in terms of the extent of the remedies offered but the protection remains nonetheless essentially formalistic, and without prejudice to the difficult range of substantive issues associated with the simultaneous application of various multi-and bilateral treaties dealing with the same subject matter.