Wednesday, October 21, 2020

International court rejects remedies sought by India in Jadhav case

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Zubair Yaqoob
Zubair Yaqoob
The author has diversified experience in investigative journalism. He is Chief content editor at wnobserver.com He can be reached at: [email protected]

The International Court of Justice (ICJ) on Wednesday issued its verdict in Indian spy Kulbhushan Jadhav case and rejected most of the remedies sought by India.

The court, in its verdict, rejected a number of Indian demands including annulment of military court decision convicting Jadhav, his release and safe passage to India.

The court, however, directed Pakistan to provide effective review and reconsideration of his conviction and sentences according to its own justice system.

The court had reserved its judgement in the case back in February.

The agents of Pakistan and India made the following submissions to the ICJ.

Indian RAW spy "Khulbushan Jadhav captured in Pakistan
Indian RAW spy “Khulbushan Jadhav captured in Pakistan

The Government of India requests this Court to adjudge and declare that, Pakistan acted in egregious breach of Article36 of the Vienna Convention on Consular Relations, 1963 (Vienna Convention) in:

Failing to inform India, without delay, of the detention of Jadhav.

Failing to inform Jadhav of his rights under Article36 of the Vienna Convention on Consular Relations, 1963;

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Declining access to Jadhav by consular officers of India, contrary to their right to visit Jadhav, while under custody, detention or in prison, and to converse and correspond with him, or to arrange for his legal representation. And that pursuant to the foregoing trial.

India top media exposed in Jadhav case, completely loses credibility
India top media exposed in Jadhav case, completely loses credibility

Declare that the sentence by Pakistan’s Military Court arrived at, in brazen defiance of the Vienna Convention rights under Article36, particularly Article36 paragraph1

Direct it to release the Indian National, Jadhav, forthwith, and to facilitate his safe passage toIndia; In the alternative, and if this Court were to find that Jadhav is not to be released, then annul the decision of the Military Court and restrain Pakistan from giving effect to the sentence awarded by the Military Court, or in the further alternative.

Direct it to take steps to annul the decision of the military court, as may be available to it under the laws in force in Pakistan, and in either event

Direct a trial under the ordinary law before civilian courts, after excluding his confession that was recorded without affording consular access, and in strict conformity with the provisions of the ICCPR, with full consular access and with a right to India to arrange for his legal representation.

Pakistan respectfully requests the Court, for the reasons set out in Pakistan’s written pleadings and in its oral submissions made in the course of these hearings, to declare India’s claim inadmissible.

Further or in the alternative, the Islamic Republic of Pakistan respectfully requests the Court to dismiss India’s claim in its entirety.

Meanwhile on Twitter Pakistani celebrates over the verdict given by ICJ. Indians celebrated with unknown reasons.

Jadhav’s arrest and death sentence

Pakistani security agencies on March 24, 2016 apprehended an ‘on-duty RAW agent’ from Balochistan. The suspect was said to be an officer of the Indian navy working for the covert agency to destabilize Pakistan.

The operative had contacts with banned organizations and was working on plans to break Karachi and Balochistan away from Pakistan, and to sabotage the billion dollar China-Pakistan Economic Corridor (CPEC) project.

On March 25, a day after the arrest, the Indian Ministry of External Affairs said the Indian man arrested from Balochistan has no connection with the government, however, admitted that Kulbhushan Yadav is a former officer of the Indian navy.

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“He (Jadhav) acquired premature retirement from the Indian navy and since then the government has nothing to do with him,” said Vikas Swarup, a spokesperson for the Ministry of External Affairs, requesting Pakistan to grant counsellor access to the ‘arrested Indian citizen’.

On April 10, COAS, Gen Qamar Javed Bajwa confirmed his death sentence awarded by Field General Court Martial (FGCM).

The spy was tried through (FGCM) under Pakistan Army Act (PAA) and awarded death sentence.

Jadhav was tried by FGCM under section 59 of Pakistan Army Act (PAA) 1952 and Section 3 of official Secret Act of 1923. FGCM found Kulbushan Sudhir Yadhav guilty of all the charges.

He confessed before a Magistrate and the Court that he was tasked by RAW to plan, coordinate and organize espionage / sabotage activities aiming to destabilize and wage war against Pakistan by impeding the efforts of Law Enforcement Agencies for restoring peace in Balochistan and Karachi.

Decision paragraphs the International Court of Justice 

(1) *Unanimously,*
Finds that it 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 the Republic of India on 8 May 2017;
(2) *By fifteen votes to one,*
Rejects the objections by the Islamic Republic of Pakistan to the admissibility of the Application of the Republic of India and finds that the Application of the Republic of India is admissible;
(3) *By fifteen votes to one,*
Finds 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, the Islamic Republic of Pakistan breached the obligations incumbent upon it under that provision;
(4) *By fifteen votes to one,*
Finds that, by not notifying the appropriate consular post of the Republic of India in the Islamic Republic of Pakistan without delay of the detention of Mr. Kulbhushan Sudhir Jadhav and thereby depriving the Republic of India of the right to render the assistance provided for by the Vienna Convention to the individual concerned, the Islamic Republic of Pakistan breached the obligations incumbent upon it under Article 36, paragraph 1 (b), of the Vienna Convention on Consular Relations;
(5) *By fifteen votes to one,*
Finds that the Islamic Republic of Pakistan deprived the Republic of India of the right to communicate with and have access to Mr. 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;
(6) *By fifteen votes to one,*
Finds that the Islamic Republic of Pakistan is under an obligation to inform Mr. 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;
(7) *By fifteen votes to one,*
Finds that the appropriate reparation in this case consists in the obligation of the Islamic Republic of Pakistan to provide, by the means of its own choosing, effective review and reconsideration of the conviction and sentence of Mr. 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, taking account of paragraphs 139, 145 and 146 of this Judgment;
(8) *By fifteen votes to one,*
Declares that a continued stay of execution constitutes an indispensable condition for the effective review and reconsideration of the conviction and sentence of Mr. Kulbhushan Sudhir Jadhav.
Director General ISPR, said that the decision of ICJ was a result of Pakistan’s efforts in curbing terrorism, ” Our law team has done great workin Jadhv’s case. Major General Asif Ghafoor has that Pakistan a peace loving country, respects the law. He clarified that Jadhav will remain in Pakistan’s custody and will be treated as per the law.

Complete decision of International Court of Justice

Zubair Yaqoob
Zubair Yaqoob
The author has diversified experience in investigative journalism. He is Chief content editor at wnobserver.com He can be reached at: [email protected]

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