Wednesday, 18 October 2017

Few things you should know about ICJ decision on Jadhav

ICJ

The International Court of Justice (ICJ) announced its decision in relation to India’s Request for the Indication of Provisional Measures in connection with Kulbhushan Jadhav’s case (the “decision”) on May 18, 2017.

The 15 page decision has been met with strong reactions in both countries. Unfortunately, the debate on electronic media has been led by journalists, lawyers and politicians unfamiliar with the concepts of international law and the actual decision itself. Therefore, it is important to highlight some key points:

India didn’t win, Pakistan didn’t fail

India didn’t win the case. Pakistan didn’t fail. The decision only relates to India’s request for provisional measures (which, by the way, doesn’t even include a request for granting consular access to Jadhav). At this stage, it was easier and more likely for the ICJ to favour the Indian request as the threshold for assuming jurisdiction was not very high. Please see below paragraph 15 of the decision:

“15. The Court may indicate provisional measures only if the provisions relied on by the Applicant appear, prima facie, to afford a basis on which its jurisdiction could be founded, but need not satisfy itself in a definitive manner that it has jurisdiction as regards the merits of the case (see, for example, Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Provisional Measures, Order of 19 April 2017, para. 17).”

Jadhav’s spy status will come under discussion

Pakistan hasn’t failed to convince the ICJ that Jadhav is a spy/terrorist as this is something that will be considered only at the merits stage of the case. At this stage, ICJ wasn’t even looking to confirm whether the rights sought to be protected by India exist (i.e. consular access to an Indian citizen convicted of activities subversive to the national security of Pakistan).

In fact, it only had to decide whether such rights are plausible enough to be adjudicated upon at the merits stage of the case. Please see below paragraph 42 of the decision:

“42. At this stage of the proceedings, the Court is not called upon to determine definitively whether the rights which India wishes to see protected exist; it need only decide whether these rights are plausible (see above paragraph 35 and Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Provisional Measures, Order of 19 April 2017, para. 64).”

ICJ yet to decide on consular access for Jadhav

ICJ has not determined as yet whether consular access must be granted to someone in Jadhav’s position. Pakistan has not even had the opportunity to plead the arguments in this respect and again this is something to be debated at the merits stage of the case. Please see below paragraph 43 of the decision:

“43. The rights to consular notification and access between a State and its nationals, as well as the obligations of the detaining State to inform without delay the person concerned of his rights with regard to consular assistance and to allow their exercise, are recognized in Article 36, paragraph 1, of the Vienna Convention. Regarding Pakistan’s arguments that, first, Article 36 of the Vienna Convention does not apply to persons suspected of espionage or terrorism, and that, second, the rules applicable to the case at hand are provided in the 2008 Agreement, the Court considers that at this stage of the proceedings, where no legal analysis on these questions has been advanced by the Parties, these arguments do not provide a sufficient basis to exclude the plausibility of the rights claimed by India, for the same reasons provided above (see paragraphs 32-33).”

No decision on the death penalty

There has been no decision by the ICJ regarding Jadhav’s death penalty by the Pakistani Court. In fact, this point is not even under consideration and does not fall within the ICJ’s jurisdiction.

The dispute relates to whether consular access should have been granted by Pakistan and not whether the death penalty is lawful. Please see below paragraph 56 of the decision:

“56. The Court notes that the issues brought before it in this case do not concern the question whether a State is entitled to resort to the death penalty. As it has observed in the past, “the function of this Court is to resolve international legal disputes between States, inter alia when they arise out of the interpretation or application of international conventions, and not to act as a court of criminal appeal” (LaGrand (Germany v. United States of America), Provisional Measures, Order of 3 March 1999, I.C.J. Reports 1999 (I), p. 15, para. 25; Avena and Other Mexican Nationals (Mexico v. United States of America), Provisional Measures, Order of 5 February 2003, I.C.J. Reports 2003, p. 89, para. 48).”

Pakistan remains hopeful of justice from ICJ

The next proceedings of the Jadhav case at international court will be very crucial for Pakistan, cautioned Ahmer Bilal Soofi, an international law expert, after the International Court of Justice (ICJ) initial ruling to stay the death sentence awarded to Indian spy Kulbhushan Jadhav by Pakistan.

“The Court has given the stay order effectively and has not issued a date for the next hearing, which indicates the ICJ will take some time, perhaps months, to decide the case,” Soofi said. “This time must be utilised skilfully by Pakistan to strengthen its legal arguments to satisfy the Court.” Since the court rejected Pakistan’s contention that the Pakistan-India Consular Access agreement 2008 took precedence over the provisions in the Vienna Convention, “Pakistan should now focus on all the identified issues to satisfy the top court in future hearings,” Soofi suggested.

Khawar Qureshi led Pakistan’s arguments at The Hagu on May 15, after India’s appeal. He argued the court had no jurisdiction to hear such a case, according to the Vienna Convention. On Thursday, the court overruled Pakistan’s plea and said it would hear the case and seek arguments from both sides.

ICJ has no jurisdiction over Pakistan’s national security matters: Foreign Office

Reacting to the ICJ verdict, Foreign Office spokesperson Nafees Zakaria says: “We do not accept the jurisdiction of the ICJ in matters related to the national security of the country.”

Talking to state media, PTV, Zakaria said India has been trying to hide its real face by taking the case of Kulbhushan Jadhav to the ICJ.

“Indian spy [Jadhav] confessed his crimes of sabotage, terrorism and subversion not only once but twice,” he said. “Pakistan will present solid evidence against the Indian spy in the International Court.”

Pakistani lawyers did not present case well: local lawyers

Retired Justice Shaiq Usmani, a law expert, said the ICJ decision was upsetting as Pakistan claimed the court has no jurisdiction in the matter. “Pakistan’s main focus on jurisdiction of ICJ in the case was a technical fault.”

He suggested that Pakistani lawyers should now prepare for proceedings, as the Court has asked for further evidence. Pakistan was not well-prepared and did not utilise the 90 minutes it had to make its argument, said London-based Barrister Rashid Aslam.

He also added that: “It is very clear, [under] Article 5B of the Vienna Convention, that if a civilian is caught he is subject to human rights law. But if it is a spy, then human rights are forfeited. So I don’t think we presented the case quite well.”

Barrister Dr Farogh Nasim said Pakistan should not have conceded to ICJ’s jurisdiction. “India did not give consent to the Kashmir issue going to ICJ, then why did Pakistan give consent to the Jadhav case?,” he said. Pakistan, however, is still positive about the outcome of the case. The current ruling is very basic process, said Pakistan’s ambassador to the ICJ, Moazzam Ahmad Khan. “The court … has said nothing on the merits or the maintainability of the case.”

Pakistan was not prepared for the case: politicians

Despite having strong evidence against Jadhav, Pakistan did not present its case vigorously at the UN’s top court, some Pakistani politicians have said. “Pakistan had a solid case with strong evidence against Jadhav being involved in espionage and terrorism, but we lost the opportunity to present it robustly which is why the verdict is not in our support,” said Shah Mahmood Quraishi, vice-chairman of the Pakistan Tehreek-i-Insaf (PTI) opposition party.

“Pakistani lawyers must defend the case supported by all evidence, because the fact of the matter is Jadhav is an Indian spy caught red-handed in Pakistan,” he added. Senior PPP leader, Senator Sherry Rahman, said, “India is utilising [all its] options, including lobbying, to win the case. Similarly, Pakistan should employ all resources to make its position strong and lobby international support in the Jadhav issue.”

Highlighting the complacency of Pakistan’s team at ICJ, she asked: “Why did Pakistan complete its presentation (at ICJ hearing) in less than 50 minutes, while India took it complete time of 90 minutes.” Veteran Pakistani politician, Shireen Mazari, noted in her tweet: “We went [to ICJ] unprepared deliberately. How else would a lawyer not explain the appeals process . We did not explain our appeal and review system to show there was no urgency,” which is why Pakistan lost on legal grounds.

Political, security experts weigh in

Political expert Zafar Hilaly said “Pakistan should allow India access to Jadhav respecting the verdict of ICJ, but Pakistan must not free this man who has been involved in terrorism, killed innocent Pakistanis.” Retd. Lt Gen Talat Masoud, a security and political expert, said, “The ICJ has only denied Pakistan’s argument on the matter of jurisdiction which does not mean Pakistan has lost the case.”

He said the sole purpose of India, in taking the Jadhav case to the international court, was to pressurise Pakistan globally, to which the country should not bow. Some Pakistani commentators also said the ICJ ruling could aggravate already tense relations between Pakistan and India. Others said the verdict might encourage terrorists in Pakistan who would feel they have a right to appeal their sentences, even after being charged and convicted.

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