ISLAMABAD/THE HAGUE - The UN’s top court on Thursday ordered Pakistan to stay the execution of an Indian national convicted of spying and running a terrorist network, in a decision hailed by New Delhi.
Pakistan, on the other hand, said the decision of the International Court of Justice (ICJ) has not changed the status of Kulbhushan Sudhir Jadhav’s case in any manner, and India has no substance in the case.
Judges at the ICJ ruled in a unanimous and binding decision that Jadhav must not be put to death by Islamabad until they have had time to pass final judgment in the case.
The court stopped short of ruling on the issue of consular access to Indian embassy officials in Pakistan for Jadhav. Indian Attorney General Mukul Rohatgi admitted to journalists at The Hague that no consular access would be given to Jadhav, pending a final verdict.
The ruling did not favour the arguments of either side but was meant to prevent Pakistan from taking any irrevocable steps before the court can decide whether it has jurisdiction in the case and, later, which side is right or wrong.
Pakistan maintains that the ICJ intervention is unnecessary as under a 2008 bilateral treaty with India, which supersedes the Vienna pact, the right to consular access can be waived where national security is involved.
It has also noted that Jadhav has right to appeal in country’s courts and he doesn’t face an immediate danger of execution.
The case - a rare foray for the two South Asian nations into the international courts - has highlighted the recent sharp upsurge in tensions between the nuclear-armed rivals.
Confession and conviction
Jadhav was arrested from Balochistan in March 2016 and was convicted last month by a military court and sentenced to death, after he confessed to spying for Indian intelligence services.
In a video, also aired on country’s TV channels, Jadhav also confessed to being assigned by India’s intelligence service to plan, coordinate and organise espionage and sabotage activities in Balochistan “aiming to destabilise and wage war against Pakistan”.
Conflicting stances
India has maintained he is not a spy, and that he was kidnapped by Pakistan from Iran. It lodged a case against Islamabad at ICJ earlier this month, accusing the Pakistanis of violating the Vienna Convention by failing to provide him with consular access, as well as breaking international human rights law.
New Delhi also appealed for the court to impose emergency measures to suspend Jadhav’s execution until the legal battle in The Hague has concluded.
Pakistan maintained that the ICJ need not intervene as it had adhered to a 2008 bilateral treaty with India that supersedes the Vienna pact by stating that the right to consular access can be waived where “national security” is at risk. India rejects this interpretation.
Islamabad has also noted that Jadhav’s sentence remains subject to appeal and he is in no immediate danger of execution.
ICJ’s interim order
“Pakistan shall take all measures at its disposal to ensure that Mr Jadhav is not executed pending the final decision in these proceedings,” said the court’s president Ronny Abraham.
He also ordered Pakistan to inform the tribunal that it has implemented the decision, and stressed that ICJ decisions are binding on all member states.
The ICJ was set up in 1945 to rule on disputes between nations in accordance with international law. The tribunal will now call for a more comprehensive filing from India before it decides whether it has jurisdiction to hear the case in full - a process could take months, if not years.
Pakistan has described India’s decision to take its case to the UN court as “political theatre”.
Pakistan’s response
Pakistani envoy at the ICJ, Moazzam Ahmad Khan, told reporters that “the court has given its ruling on provisional measures, which is basically a procedural process... The court has said nothing on the merits or maintainability of the case”.
The office of Attorney General Pakistan (AGP) in a statement on Thursday also stressed that the outcome was an interim order “without prejudice to the final determination of the merits” of India’s case.
It said, “In our submissions on 15 May, we had assured the court unambiguously that Commander Jadhav would be provided with every opportunity and remedy available under the law to defend his case. Commander Jadhav still has ample time to petition for clemency.
“To recall, we had in our presentation on 15 May, proposed to the court that a final hearing be held on the merit and maintainability of the case as early as possible. We are determined to pursue this case to its logical end.
“The ICJ has clearly underscored that the provisional measures were without prejudice to the final determination of the merits and jurisdiction of the case.
“The provisional measures are a procedural process only to enable the court to have full consideration at a later hearing. These measures have no bearing whatsoever on the final decision of the court.
“Pakistan attended the hearing out of its utmost respect for the court and pursuant to the established jurisprudence that the challenge to jurisdiction can be made via appearance and not by abstaining from the process.
“Pakistan attended because of its conviction that the only way to resolve all outstanding issues is through peaceful means. We are confident that India would not be able to hide the subversive activities it is trying to carry out through its agents like Commander Jadhav.”
India’s jubilation
Indian Foreign Minister Sushma Swaraj welcomed the ruling and said in a Tweet that it was “a great relief to the family of Kulbhushan Jadhav and people of India”.
“I assure the nation that under the leadership of Prime Minister (Narendra) Modi we will leave no stone unturned to save #KulbhushanJadhav,” he said in another Tweet.
Outlining the reasons for its decision, Abraham said Pakistan had “given no assurance” Jadhav would not be executed before the court delivered its final decision.
“The mere fact that Mr Jadhav is under a death sentence and might therefore be executed is sufficient to demonstrate the existence of a risk of irreparable prejudice to the rights claimed by India,” he added. Therefore the court was “satisfied” of the “urgency” of the case.
Indian Attorney General Mukul Rohatgi described the court’s decision as a victory. “The whole world now knows that there was no fair trial. The whole thing was a charade,” he told reporters in India. “The bogus stand put forth by Pakistan has been completely blown by this decision.”
Outside Jadhav’s former home in Mumbai, a group of friends let off firecrackers in celebration. “Justice has been served and it is proven that Pakistan’s courts are mere kangaroo courts and nothing else,” one friend Sachin Kale told AFP.
Jadhav, who is married with two children, reportedly joined India’s prestigious National Defence Academy in 1987 and was commissioned as an engineer in the Indian Navy in 1991.
The son of a retired police officer, his neighbours remember him as a shy but helpful man who was good at sport and academic, according to the Hindustan Times newspaper.
ICJ and Pak-India disputes
India and Pakistan have routinely accused one another of sending spies into their countries, and it is not uncommon for either nation to expel diplomats accused of espionage. But death sentences have rarely been issued in recent years.
The last time India and Pakistan took a dispute to the ICJ was in 1999 when Islamabad protested the downing of a Pakistani navy plane that killed 16 people. But the tribunal decided it was not competent to rule in the dispute and closed the case.
The Vienna Convention has been a frequent subject of disputes at the ICJ, often in cases involving the United States. US authorities ignored a similar ICJ injunction in 1999 and executed a German national.
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Jadhav, who is married with two children, reportedly joined India’s prestigious National Defence Academy in 1987 and was commissioned as an engineer in the Indian Navy in 1991. The son of a retired police officer, his neighbours remember him as a shy but helpful man who was good at sport and academic, according to the Hindustan Times newspaper.
ICJ and Pak-India
disputes
India and Pakistan have routinely accused one another of sending spies into their countries, and it is not uncommon for either nation to expel diplomats accused of espionage. But death sentences have rarely been issued in recent years.
The last time India and Pakistan took a dispute to the ICJ was in 1999 when Islamabad protested the downing of a Pakistani navy plane that killed 16 people. But the tribunal decided it was not competent to rule in the dispute and closed the case. The Vienna Convention has been a frequent subject of disputes at the ICJ, often in cases involving the United States. US authorities ignored a similar ICJ injunction in 1999 and executed a German national.