International Court of Justice (ICJ) rejected remedies sought by India, including annulment of the military court decision convicting Jadhav, restricting Pakistani from executing the sentence and to release Jadhav, and ordering his return to India. ICJ President Abdulqawi Ahmed Yusuf on Wednesday announced the verdict on Kulbhushan Jadhav case. Pakistan judge Tassadqu Hussain Jillani wrote the dissenting note. Jadhav - a serving commander of the Indian Navy associated with Indian spy agency Research and Analysis Wing - was arrested on March 3, 2016 in Balochistan for espionage and terrorism. In his subsequent trial at a military court, Jadhav had confessed to his involvement in terrorist plots. He was subsequently sentenced to death in 2017. However, India insisted that Jadhav was not a spy and said he was kidnapped in Iran. On April 10, 2017, Army Chief General Qamar Bajwa endorsed the death penalty for Jadhav. In June 2017, the Indian spy had filed a mercy petition against the death penalty, in which he again confessed to his involvement in terrorist activities.
India had demanded immediate suspension of the sentence of death awarded to Jadhav. A relief by way of restitutio in integrum by declaring that the sentence of the military court arrived at, in brazen defiance of the Vienna Convention rights under Article 36.
India had demanded restraining Pakistan from giving effect to the sentence awarded by the military court, and directing it to take steps to annul the decision of the military court as may be available to it under the law in Pakistan.
India had demanded if Pakistan is unable to annul the decision, then this Court to declare the decision illegal being violative of international law and treaty rights and restrain Pakistan from acting in violation of the Vienna Convention and international law by giving effect to the sentence or the conviction in any manner, and directing it to release Jadhav, forthwith, and to direct Pakistan to facilitate his safe passage to India.
The ICJ ruled that Jadhav be allowed consular access immediately and asking Pakistan to ensure "effective review and reconsideration of his conviction and sentences."
It unanimously said that ICJ has jurisdiction, on the basis of Article I of the Optional Protocol concerning the Compulsory Settlement of Disputes to the Vienna Convention on Consular Relations of 24 April 1963, to entertain the application filed by India on 8 May 2017.
By fifteen votes to one, the Court rejected the objections by Pakistan to the admissibility of the application of India and finds that the application of India is admissible.
The ICJ found that, by not informing Kulbhushan Sudhir Jadhav without delay of his rights under Article 36, paragraph 1 (b), of the Vienna Convention on Consular Relations, Pakistan breached the obligations incumbent upon it under that provision.
By not notifying the appropriate consular post of India in Pakistan without delay of the detention of Kulbhushan Sudhir Jadhav and thereby depriving India of the right to render the assistance provided for by the Vienna Convention to the individual concerned, Pakistan breached the obligations incumbent upon it under Article 36, paragraph 1 (b), of the Vienna Convention on Consular Relations.
Pakistan deprived India of the right to communicate with and have access to Kulbhushan Sudhir Jadhav, to visit him in detention and to arrange for his legal representation, and thereby breached the obligations incumbent upon it under Article 36, paragraph 1 (a) and (c), of the Vienna Convention on Consular Relations.
Pakistan is under an obligation to inform Kulbhushan Sudhir Jadhav without further delay of his rights and to provide Indian consular officers' access to him in accordance with Article 36 of the Vienna Convention on Consular Relations.
The appropriate reparation in this case consists of the obligation of Pakistan to provide, by the means of its own choosing, effective review and reconsideration of the conviction and sentence of Kulbhushan Sudhir Jadhav, so as to ensure that full weight is given to the effect of the violation of the rights set forth in Article 36 of the Convention.
The Court declared that a continued stay of execution constitutes an indispensable condition for the effective review and reconsideration of the conviction and sentence of Kulbhushan Sudhir Jadhav.
Pakistan had contended before the ICJ that the relief sought by India (the annulment of a domestic criminal conviction, the annulment of a domestic criminal sentence, and the release of a convicted prisoner) could only be granted by an appellate criminal court. According to Pakistan, granting such relief would transform the Court into a court of appeal of national criminal proceedings. It submits that the Court has repeatedly and consistently affirmed the principle that it does not have the function of a criminal appellate court and maintains that restitution to the status quo ante is not an appropriate remedy for a breach of Article 36 of the Vienna Convention, because, unlike legal assistance, consular assistance is not regarded as a predicate to a criminal proceeding.
Pakistan maintains that the appropriate remedy in this case would be, at most, effective review and reconsideration of the conviction and sentence of the accused, taking into account the potential effects of any violation of Article 36 of the Vienna Convention. It refers to the decision rendered by the Peshawar High Court in 2018, which set aside more than 70 convictions and sentences handed down by military courts. It contends that its domestic legal system provides for an established and defined process whereby the civil courts can undertake a substantive review of the decisions of military tribunals, in order to ensure procedural fairness has been afforded to the accused, and that its courts are well suited to carrying out a review and reconsideration that gives full weight to the effect of any violation of Article 36 of the Vienna Convention.
Pakistan further notes that clemency procedures can act as an appropriate supplement to judicial procedures for review and reconsideration, and points out that, at all material times, both judicial review and clemency procedures have been available to Jadhav and his family.
Pakistan further told that the conduct of India and Jadhav must be taken into account in any consideration of relief the Court undertakes, including whether the conduct is of such grave illegality that it militates against the granting of any relief at all.
The Court confirms that the clemency process is not sufficient in itself to serve as an appropriate means of review and reconsideration but that "appropriate clemency procedures can supplement judicial review and reconsideration, in particular where the judicial system has failed to take due account of the violation of the rights set forth in the Vienna Convention."
The Court finds that Pakistan is under an obligation to provide, by means of its own choosing, effective review and reconsideration of the conviction and sentence of Jadhav, so as to ensure that full weight is given to the effect of the violation of the rights set forth in Article 36 of the Vienna Convention
The Court considers that a continued stay of execution constitutes an indispensable condition for the effective review and reconsideration of the conviction and sentence of Jadhav.
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