World court rejects claim that the Vienna Convention doesn’t apply in a ‘spy case’

In a major verdict that accepted India’s plea that former Indian naval officer Kulbhushan Jadhav’s trial under espionage and terror charges in Pakistan violated international law, the International Court of Justice on Wednesday ruled that Pakistan should “review and reconsider” his conviction and death sentence.

The court, based at The Hague in the Netherlands, also ruled that Pakistan should give the Indian government consular access to Mr. Jadhav, something Pakistan has failed to do in the three years since his arrest, and to stay the execution of his sentence, pending the review process.

The ICJ held that the denial of consular access constituted a “breach” of article 36 para 1(b) of the Vienna Convention on Consular Relations (1963) which Pakistan is a signatory to, which stipulates that all foreign nationals arrested must be given access to their government or local embassy, and rejected Pakistan’s counter-claim that the Vienna convention didn’t apply in a case of espionage.

It also upheld India’s contention that the Vienna convention overrides a 2008 bilateral agreement between India and Pakistan on consular access.

Significantly, all 16 judges on the UN judicial organ’s panel ruled unanimously that the ICJ’s jurisdiction held over the case. On six other contentions, including on the comprehensive violation of the Vienna Convention by Pakistan, the immediate granting of consular access to Mr. Jadhav, an “effective review and reconsideration of the conviction and sentence”, and a continued stay of execution, the ICJ panel ruled 15-1 in India’s favour. Pakistani Judge, Justice Jillani, was the lone dissenter on those rulings.

Pakistan’s government also claimed a victory of sorts over the judgment, pointing out that the court had not accepted India’s written and oral submissions asking for the ICJ to annul the Pakistani verdict, and to direct Mr. Jadhav’s release.

“Commander Jadhav shall remain in Pakistan. He shall be treated in accordance with the laws of Pakistan,” tweeted Pakistan’s Foreign Minister Shah Mehmood Qureshi. However diplomats said that ordering Mr. Jadhav’s release was never really an expectation from the ICJ.

“This was a big victory, and as much as India would have hoped for at this stage,” said Gautam Bambawale, explaining that “the ICJ never gives directions beyond its authority as it cannot implement them.”

Mr. Bambawale was the Indian High Commissioner to Pakistan in March 2016, when Mr. Jadhav was arrested by the Pakistani government for ‘spying’ and allegedly plotting terror acts in Balochistan, and had made several appeals to Pakistan for access to Mr. Jadhav at the time.

Subsequently, Pakistan held a secret trial of Mr. Jadhav in a military court, where evidence and processes were not made public. On May 8, 2017, after the Pakistani court convicted and sentenced Mr. Jadhav, India went to the ICJ as a last resort of appeal.

India has rarely ever approached the ICJ, as it considers the UN body a “third party” in bilateral matters. Government officials say they hope that Pakistan, having lost the case at the ICJ, will swiftly accord consular access to Mr. Jadhav, and begin a review of his trial and a reconsideration of his sentencing at the earliest. If not, or if the review is considered unfair, New Delhi could return to The Hague once again and make another appeal.