India claims it has a strong case to defend Kulbhushan Jadhav, the Indian national who is on death row in Pakistan after being convicted for espionage and “subversive activities”. However, history insists that New Delhi should refrain from letting her hopes soar too high as the case comes up for public hearings at the International Court of Justice (ICJ) on Monday.
The Kulbhushan Jadhav row is the fourth case, pertaining to alleged violation of the Vienna Convention on Consular Relations (VCCR), to be presented before The Hague – the principal judicial organ of the United Nations. In the three preceding cases, death row convicts were executed despite the ICJ’s interference and rulings against their capital punishments.
The Quint examines these three cases:
1. Paraguay Vs USA
- Year of appeal before ICJ: 1998
- Convict: Angel Francisco Breard
- Charges against convict: Murder and attempted rape
- ICJ’s ruling: Stay the execution
- Status: Executed via a lethal injection
Case Summary
Paraguay national Angel Francisco Breard was arrested in 1992 for the attempted rape and murder of his neighbour in Virginia, USA. The victim’s semi-naked body, with five stab wounds to the neck, was discovered in her apartment. Breard was sentenced to death in 1998.
Eleven days before his scheduled execution, on 3 April 1998, Paraguay instituted proceedings against the United States before the ICJ, alleging violations under the VCCR. Paraguay informed The Hague that Breard was arrested, tried, convicted and sentenced to death without Virginia advising him of his right to consular advice.
In a unanimous ICJ order, issued five days before the scheduled execution, The Hague called on the United States to “take all measures at its disposal” to prevent the execution of Breard, pending a final decision from the court. However, Breard was executed via a lethal injection on the scheduled date.
On the day of his execution, a hearing was held in the Supreme Court of the United States, with the ICJ’s order being counter-argued by the Bill Clinton administration, which upheld that Virginia should be allowed to mete out its punishment. Virginia prosecutors had argued that the VCCR violation “could be remedied by a formal apology, and need not lead to a reprieve for a killer.” The court agreed, voting 6 to 3, and Breard was executed.
Paraguay eventually withdrew the case from the World Court, and no action was initiated against North America.
2. Germany Vs USA
- Year of appeal before ICJ: 1999
- Convict: Walter LaGrand
- Charges against convict: First-degree murder during an attempted bank robbery
- ICJ’s ruling: Stay the execution
- Status: Executed via asphyxiation in an Arizonan gas chamber on the day of the ruling
Case Summary:
Walter LaGrand and his brother, Karl, were arrested in Arizona in 1982 for their involvement in an attempted bank robbery, in the course of which the bank manager was murdered, and another bank employee was seriously injured. In 1984, an Arizona court convicted the brothers – both German nationals living in the United States – for first-degree murder and other crimes, and sentenced them to death.
Eight years later, while still in prison, the LaGrands learnt of their rights to consular access, and approached the German consulate. But because of a US law, the brothers were precluded from challenging their convictions and sentences. Karl La Grand was executed on 24 February 1999, while Walter was scheduled to be executed on 3 March that year.
On 2 March, Germany approached the ICJ against USA, alleging violations under the VCCR. Immediately after, the ICJ issued an order calling for provisional measures (a kind of interim injunction), stating that the United States stay Walter’s execution, pending a final decision from the ICJ. He was executed later that day.
In June 2001, the ICJ issued a press release stating that the United States had “breached its obligations to Germany and to the LaGrand brothers under the VCCR.” The ICJ also insisted on the legal binding of provisional measures. However, even as The Hague found the US guilty, it did not mention any action or proceedings to be instituted against it in its final press release on the case.
3. Mexico Vs USA
- Year of appeal before ICJ: 2003
- Convict: José Medellin
- Charges against convict: Rape and murder
- ICJ’s ruling: Stay the execution
- Status: Executed via a lethal injection
Case Summary:
Medellin, a Mexican national who had moved to the US as a child, was sentenced to death for the rape and murder of a 16-year-old girl in Texas in 1993. Another 14-year-old girl was also raped and murdered in the crime, perpetrated by Medellin and his five accomplices, all members of a Houston street gang.
In January 2003, the Mexican government approached the World Court, stating that 54 of its nationals, including Medellin, were on death row across 10 North American states. Mexico claimed that since the USA had denied all these men the right to consular access, it was in breach of the VCRR.
A year later, the ICJ, in its judgement, announced that USA had indeed breached its obligations to the Mexicans, and that it should “provide, by means of its own choosing, review and reconsideration of the convictions and sentences”.
Four years after the order, the Mexican government approached The Hague again, when it learnt that Medellin faced imminent execution. Mexico accused the US of failing to provide Medellin a review and reconsideration opportunity and said that by setting an execution date for him, the US had violated the ICJ’s judgement.
Twenty days before the scheduled execution, the ICJ issued an order stating that the US shall take all necessary measures to ensure that José Medellin was not executed, pending the court judgment. However, Medellin was executed via a lethal injection on the scheduled date in August 2008. The state's governor rebuffed attempts to delay the execution arguing that the state's courts were not bound by rulings of the ICJ.
A few months later, the ICJ unanimously found that the US had “breached the obligation incumbent upon it in the case of Mr José Ernesto Medellin Rojas”. No action was initiated.
The course of the three previous cases under the VCRR reveal that even as the US went ahead with the executions of the foreign nationals despite ICJ orders against them, the country did not have to face legal consequences.
The repercussions remained limited to some diplomatic animosity with the World Court, and with the three nations in question. The ICJ, in its own words, does not “act as a court of criminal appeal,” and its function is to simply “resolve” international legal disputes between States.
Hence, even if The Hague rules in favour of India after Kulbhushan’s public hearings on Monday, the chances of him getting off the gallows look bleak. With no possible consequences in sight, adhering to the ICJ order appears to be more of a moral and diplomatic obligation for Pakistan.
(Puja Changoiwala is a journalist and author of the critically-acclaimed True Crime Book, ‘The Front Page Murders.’ This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)
(At The Quint, we question everything. Play an active role in shaping our journalism by becoming a member today.)