NEW DELHI: Pakistan’s own admission before the International Court of Justice about the way their military courts function seems to have worked against it at The Hague, as the court-ordered consular access to Kulbhushan Jadhav.
During the arguments by Pakistan before the ICJ, a 2018 decision by the Peshawar High Court, which set aside over 70 convictions and sentences handed down by military courts, was mentioned.
Though Pakistan’s contention was to draw this fact to show that they have a robust legal system wherein a substantive review of the decisions of military tribunals can be undertaken, the ICJ said, “It is not clear whether judicial review of a decision of a military court is available on the ground that there has been a violation of the rights set forth in Article 36, of Vienna Convention.”
The court held Pakistan guilty mainly on three grounds — not informing Jadhav of his rights under Article 36(1) of the Vienna Convention, not informing India without delay of the arrest and detention of Jadhav and denying consular access to Jadhav.
Refusing to accept Pakistan’s plea that the option of clemency was open to all the convicts, the court held, “The clemency process is not sufficient in itself to serve as an appropriate means of review and reconsideration.”
Asking Pakistan to give Jadhav proper review and reconsideration, the court said, “Any potential prejudice and the implications for the evidence and the right of defence of the accused should receive close scrutiny during the review and reconsideration.”Harish Salve, who represented India at the ICJ, hoped that Pakistan gives Jadhav a fair trial in a civil court now or else India could go through the UN sanction route.
“Pakistan had based allegations of what we lawyers call ‘abuse of process’ and said that is another ground why India shouldn’t be allowed the relief it seeks. That has been rejected. ICJ held that Pakistan is guilty of internationally wrongful acts,” Salve said. “What we’ve seen are the allegations that he (Jadhav) is a spy; what we have to see is the process of how (Pakistan) prove it.”
Article 36(1) of the Vienna Convention
Article 36(1) of the Convention affords the following privileges to the consular officers of states for communicating with their national detained in another state: (a) consular officers can freely communicate with nationals of the state where the individual has been detained; (b) upon request of the detainee, the detaining state must immediately inform the consular post of the detainee’s state and (c) consular officers can visit the detained individual and arrange for legal representation.
How he landed in Pakistan Net
Jadhav arrested by Pakistan on charges of spying on March 3, 2016.
Court declares Jadhav guilty of espionage and sentences him to death.
Pakistan claims he was arrested in Balochistan, but India alleges he was illegally detained from Iran.
India approaches ICJ on May 8, 2017, accusing Pakistan of violating Vienna Convention.
India seeks consular access but was denied.
ICJ stays execution of Jadhav on May 18.
On December 25, Pak allows Jadhav’s mother and wife to visit him.
Consular request denied 16 times by Pakistan.
Trial in Military court concludes on April 10, 2017.
In February 2019, ICJ conducts a four-day hearing in the case.