What’s at Stake in the ICJ’s Kulbhushan Jadhav Verdict Today

Everything you need to know about the case and what India and Pakistan argued in court.

At 6:30 pm IST on Wednesday, 17 July, the International Court of Justice (ICJ) will deliver its verdict in the Kulbhushan Jadhav case.

The judgment has obvious personal stakes for Jadhav, whose very life depends on whether or not the court finds that Pakistan violated international law when detaining and trying him.

However, the verdict will not just decide the fate of the detained Indian national – it could also provide an answer to one of the most complex dilemmas in international relations:

Should foreign nationals accused of being spies or terrorists be eligible for the same rights under international law as those accused of other crimes?

What is the Case About?

The Facts

Kulbhushan Jadhav, an Indian national and retired naval officer, was arrested by Pakistan on 3 March 2016 and accused of being an Indian spy and a terrorist. He was tried by a military court, convicted and sentenced to death in early 2017.

After India became aware of these developments, it decided to take Pakistan to the ICJ, which hears arguments between nations about violations of treaties, customary international law and other international legal norms.

On 18 May 2017, the ICJ granted India’s request for provisional measures, requesting Pakistan to take all necessary steps to ensure that Jadhav was not executed before the court’s final decision. Arguments on the main issues took place before the court from 18-21 February 2019.

Why did India take Pakistan to the ICJ?

India’s case is that Pakistan violated its obligations under international law because of the way in which it handled the detention and trial of Kulbhushan Jadhav.

According to India, Pakistan failed to comply with Article 36 of the Vienna Convention on Consular Relations 1963 (VCCR) because it failed to provide Jadhav with ‘consular access’ after his arrest.

What is consular access?

Article 36(1)(b) of the VCCR states that if a foreign national of Country A is arrested in Country B:

• Country B needs to inform the foreign national of his rights under the VCCR without delay, including informing the consular authorities of Country A and get help from them; and
• if the foreign national requests, Country B needs to inform the consular post of Country A (its embassy, high commission, etc) that they have arrested/detained a national of Country A.

Article 36(1)(c) states that consular officers of Country A have a right to visit nationals from Country A that have been arrested or detained in any other country, and shall also have the right to arrange for legal aid for them.

Pakistan's Alleged Failure to Provide Consular Access

• According to India’s memorial to the court, Pakistan only informed India of Jadhav’s arrest on 25 March 2016, 22 days after he’d been arrested.
• Pakistani government functionaries made public statements that Jadhav was not entitled to consular access as he was a spy, which indicates they did not inform him of his right to communicate with Indian consular authorities.
• India made a formal request for consular access to Jadhav on 30 March 2016. Thirteen reminders were sent to them up till April 2017, but no access was granted.
• Pakistan informed India on 21 March 2017, in a note verbale, that Pakistan would consider India’s case for consular access, but this would be based on India’s response to Pakistan’s request for assistance in its investigation against Jadhav.
• Jadhav was tried by a military court during this time, but Pakistan has not disclosed (whether to India or the public) what charges or evidence they had against him. The text of the supposed judgment was also not made available.
• Jadhav was not given consular access even after the conclusion of the trial. India thus had no information about the appeals process, and how Jadhav’s appeal was allegedly turned down.
• On 17 April 2017, following press statements by Pakistani officials confirming Jadhav’s sentence and alleging he had confessed, a Pakistan government spokesperson said that Jadhav was not eligible for consular access and would not be granted consular access. No reasons were provided for this at the time.

What did India Argue Before the Court?

Senior advocate Harish Salve was India’s counsel for the proceedings at the ICJ. As the applicant in the case, India presented its oral arguments first during the hearings, which started on 18 February.

India contended that the case had been filed in the court on the basis of “an egregious violation of the Vienna Convention on Consular Relations, 1963”.

To begin with, Salve identified two broad issues before the court:

1. Whether Pakistan could have denied consular access to Kulbhushan Jadhav in light of Article 36 of the VCCR.
2. What relief should be granted if Pakistan are found to have violated Article 36 of the VCCR?

After briefly establishing jurisdiction, Salve then took the court through the facts of the case, noting that Pakistan had attempted to use it as a propaganda tool from the start. He then proceeded to make the following arguments.

Pakistan’s Conduct

• India has claimed from the outset that Jadhav was not a RAW agent arrested in Pakistan as they have claimed, but a private businessman who had travelled to Iran for work and was abducted from there by Pakistani forces.
• In a document to the permanent members of the Security Council on 25 March 2016, Pakistan relied on a confession from Jadhav on the same day for its allegations that he was an Indian spy – but they later said they only registered an FIR to investigate crimes by Jadhav on 8 April 2016.
• Pakistan failed to even inform Jadhav of his rights – India had surmised this in their memorial, and it was confirmed by Pakistan’s failure to contradict this in its counter-memorial.
• India’s request for consular access on 30 March 2016 was ignored by Pakistan, despite multiple periodic reminders. The precondition specified on 23 January 2017, that they would consider providing consular access if India assisted their investigation, was not in accordance with international law.

Interpretation of Vienna Convention on Consular Rights

• Article 36 of the VCCR is clear and is not ambiguous. Under it, India should have been informed about Jadhav’s arrest and should have been granted access.
• Pakistan could not rely on Article 36(2) – which says that Article 36(1) shall be “exercised in conformity with the laws and regulations of the receiving State” – to say that it could restrict consular access to someone accused of being a foreign spy and terrorist. The proviso to Article 36(2) clearly says that any such laws or regulations must give full effect to the purposes for which the rights in Article 36(1) are intended.
• During the drafting of the VCCR, the chairman of the International Law Commission suggested that it may be desirable that local authorities should not have to inform the consular authorities of another a country if they arrested a spy. However, he also then went on to note that if espionage were to become an exception, the whole principle of consular access would need to be “reopened” and no such exception was added. This implies the drafters of Article 36 decided against making espionage an exception to consular access.
• Pakistan cannot use examples of other states who refused to provide consular access to alleged spies as a justification for their conduct, as these were also illegal as clear violations of the treaty. Even China and Russia have complied with Article 36 in recent cases.
• The 2008 bilateral agreement between India and Pakistan is not relevant to Jadhav’s case or Pakistan’s obligations under Article 36. In that agreement, the two countries had allowed for discretion to examine individual cases on their merits and take action accordingly. However, this was not in the context of consular access, but only in the context of whether there should be early release and repatriation of a prisoner.

Due Process and Human Rights

• The right to consular access under Article 36 is a crucial facet of due process, which countries are bound to follow when it comes to criminal cases under international human rights law, no matter how serious the charge.
• The ICJ’s own decision in the Diallo case said that when it comes to setting aside procedural safeguards under a treaty, “it cannot simply be left in the hands of the State in question to determine the circumstances which, exceptionally, allow that guarantee to be set aside.”
• The failure to provide consular access is also a violation of the right to a fair trial under Article 14 of the International Covenant on Civil and Political Rights (ICCPR), which both countries have ratified.

No Abuse of Process or Illegality by India

• India argued that just because Pakistan claimed that Jadhav was a spy and had a second Indian passport with him under a different name, it did not amount to an abuse of process by India, or the commission of an illegality.
• Not only were the claims regarding the passport unsubstantiated, these would not provide grounds for Pakistan to deny consular access.

Use of Military Court to Try a Civilian

• Jadhav was tried by a military court under the Pakistan Army Act 1952, which has been empowered to try civilians since 2015.
• Pakistan’s military courts have been criticised and censured by the European Parliament and by the International Commission of Jurists in reports to the UN Human Rights Committee, on the basis that they violate Pakistan’s obligations to respect the right to life, the right to a fair trial and the independence and impartiality of the judiciary. The HRC also made observations to this effect in its report on Pakistan.

What did Pakistan Argue Before the Court?

Pakistan launched a blistering attack on India in its oral arguments, the propriety of which was questioned by some observers.

• At the outset, their agent, Attorney General Anwar Mansoor Khan argued that Kulbhushan Jadhav had admitted to an independent judicial magistrate that he was a serving officer of the Indian Navy (not retired), that he was working for RAW, and that he had entered Pakistan “with a predetermined aim, on the instructions of the Government of India, to assist, plan and cause terrorism in Balochistan and the Sindh provinces and other places in the country.”
• Khan sought to use alleged statements by Prime Minister Narendra Modi and National Security Adviser Ajit Doval to support this claim, saying that Doval had in public spoken of his “double squeeze” strategy to foment and foster unrest in Pakistan. He noted that soon after Doval’s speech, there was a major terrorist attack at the Balochistan High Court at Quetta, killing more than 70 lawyers.
• He alleged that Jadhav created a network of residents, collaborators, conspirators and non-State actors to carry out terror attacks, which were particularly to target the China Pakistan Economic Corridor, including the ports of Gwadar.
• Khan also said that he had personally been a victim of “Indian brutalities” as a prisoner of war in the 1971 war.

These arguments were an attempt to establish a trend of bad faith and untruths by India, and that Jadhav was in fact a spy sent to encourage terrorism in India. Pakistan’s counsel Khawar Qureshi QC then took up the rest of the argument in a similarly belligerent manner.

Military Courts and Due Process

• Jadhav’s trial commenced on 21 September 2016, but was adjourned for three weeks to allow him to prepare with the benefit of legal advice.
• Jadhav was tried by the military courts not because of the extension of the military courts as argued by India, but because he was accused of violating the Official Secrets Act 1923, which vested jurisdiction to try espionage offences in the military courts.
• Jadhav and his family have the right to challenge the conviction and seek clemency, which India has failed to disclose.

India Never Established That Jadhav was an Indian National

• India never established to Pakistan that Jadhav was an Indian national, which is a precondition for granting of consular access. In the Avena case (Mexico vs USA, also on consular access), the ICJ had upheld an objection by the USA on the basis that Mexico had failed to establish the nationality of one of the individuals it was claiming protection for.
• Pakistan never waived this requirement for India to establish nationality.
• India could not provide Pakistan with a copy of his passport to prove he was an Indian national since Pakistan had already recovered another authentic Indian passport from him – which, however, was not in his name, but carried a false Muslim cover name (Hussein Mubarak Patel). Despite having a fake name, this passport had the address of Jadhav’s mother, and had been used to travel 17 times and apply for visas to other countries.

Espionage as Exception to Right of Consular Access

• Numerous international law commentators have observed since the 1960s that the VCCR “expressly left intact the customary international law position.” According to Pakistan, in customary international law, spies were not supposed to be given the rights to consular access afforded to regular foreign nationals, and this exception applied to Article 36 of the VCCR.
• Despite an invitation from the ICJ on 20 November 2017 to all countries party to the VCCR to address the court on whether or not espionage is an exception to Article 36 of the VCCR, not one country came forward.
• The 2008 bilateral agreement (Agreement on Consular Access) would apply to this case, and India’s argument that it isn’t is based on a “nonsensical” interpretation. India deliberately misread the terms of the agreement and misrepresented these to the court to say that the 2008 agreement only related to repatriation and early release.
• The relevant provision of the 2008 agreement (Article (vi)) said that each side may examine each case on its own merits in all cases of “arrest, detention or sentence made on political or security grounds”.
• India’s alleged conduct was relevant to Pakistan when deciding whether or not to grant consular access, as a prima facie case of espionage would violate Articles 5(a) and 55 of the VCCR (upholding international law, not violating it and not interfering in the internal affairs of another country).
• State practice shows that consular access was not granted in cases where a person was accused of espionage, including the cases of Colonel Abel and Gary Powers, made famous by the movie Bridge of Spies.
• Multiple commentators on international law, including Biswanath Sen (India’s Honorary Legal Adviser from 1954 to 1964) in 1965, have written that espionage is an exception to consular rights. The recent cases from China and Russia cited by India don’t prove the rule either, as there were bilateral agreements on consular access in place in those cases.

What Can We Expect From the ICJ?

India asked the court for the following reliefs:

1. Declare that Jadhav’s sentence by the military court was in defiance of Article 36 of the VCCR, Article 14 of the ICCPR and violative of international law.
2. India is entitled to restitution (to be put in the same place it was before the violation of law happened).
3. Annul the decision of the military court and restrain Pakistan from giving effect to the sentence or conviction.
4. Direct Pakistan to release Jadhav forthwith and provide him safe passage to India.
5. Alternatively, if he is not to be released, direct Pakistan to conduct a trial under ordinary law before the civilian courts, excluding his confession.

Pakistan has obviously contested the violation of Article 36 and so asked the court to dismiss India’s claim for relief.

At the end of the day, the court will have to answer the following questions, and given the espionage question has never come up before in such a way, it could be a groundbreaking decision in international law.

Was Pakistan bound to offer consular access to Jadhav even though he was accused of being a spy?

India is right to point out that Article 36 of the VCCR includes no exceptions, and that the plain text of Article 36 does not say people accused of spying should be treated any differently. India also held its own on the discussion by the International Law Commission which drafted the treaty.

However, the VCCR is supposed to reflect customary international law as it stood at the time in 1963, and contemporary writings cited by Pakistan seem to show that customary international law recognised espionage as an exception. The 2008 bilateral agreement also comes into play here as it would seem to support the existence of such an exception, and India’s errors when describing the agreement will not look good.

This could be a serious stumbling block for India’s case, and is likely to be the only flashpoint in the decision.

Even if Pakistan were under a general obligation to provide Jadhav with consular access, could that be affected by India’s conduct, including refusing to provide assistance on the investigation and answer Pakistan’s questions about Jadhav’s passport?

Even though Pakistan has raised serious issues with India’s conduct, it is difficult to see the court accepting this argument if it says Pakistan was under an obligation to grant consular access to Jadhav regardless of the allegations against him. There does not appear to be any authoritative basis for Pakistan’s claim on this point.

If India wins the espionage argument, therefore, they should be able to get a declaration from the court that Pakistan violated Article 36 of the VCCR. Note that the actual truth of whether or not Jadhav is a spy is not relevant in such a circumstance.

If Pakistan are found to have violated Article 36 of the VCCR, should it also order Jadhav’s release?

The ICJ can definitely order Jadhav’s conviction and sentence to be set aside, and for Pakistan to make sure he is not executed. At the very least, one can expect them to ensure that the death sentence against him is not carried out.

Beyond that, however, things are a lot less clearer. Pakistan is right to argue that India’s request for Jadhav’s release goes beyond what the ICJ has previously accepted as the limits of what it could order in the Avena and La Grand cases – where it had said it could not order the release of the detained foreign nationals, instead directing a retrial.

At the same time, India had a strong argument that in those cases, the foreign national had been detained in the USA, and so could expect a fair trial as ordered by the court, but that Pakistan’s legal system was a different matter entirely.

The ICJ is not bound by its previous decisions, so it could well take the view argued by India, especially if it has been convinced that Jadhav will not get a fair trial in Pakistan. But that would be a stronger conclusion than the court is normally willing to take when it comes to sovereign nations, and Pakistan has also raised serious concerns with India’s attempts to show problems in their justice system.

It is therefore likely that the court may only order a retrial for Jadhav, but with consular access and assistance, the verdict could be different from the last time.