ICJ stays Jadhav’s execution, accepting Delhi’s contention

The International Court of Justice (ICJ) on Thursday stayed the execution of former Indian naval officer Kulbhushan Jadhav, in a move that was swiftly welcomed by the government, but which was dismissed by Pakistan as a “basic ruling” that said nothing about the merits or maintainability of the case.

“We will leave no stone unturned to save #Kulbhushan Jadhav,” tweeted Minister of External Affairs Sushma Swaraj, who hailed the MEA’s “tireless efforts,” on the case.

The ICJ ordered Pakistan to “take all measures at its disposal” to prevent the execution of Jadhav, pending the court’s final judgment on the case, ICJ President Ronny Abraham said in a brief public sitting at the Peace Palace in The Hague on Thursday, marking a legal milestone in the Indian government’s efforts to save Jadhav from execution. The decision was adopted unanimously by the court.

The court accepted India’s argument that the failure by Pakistan to provide required consular notification and access fell under the scope of Article 1 of the Optional Protocol of the Vienna Convention of Human Rights.

“This is sufficient to establish that it has prima facie jurisdiction under Article 1 of the Optional Protocol,” he said, adding that the 2008 bilateral agreement on consular relations did not impact its jurisdiction, as Pakistan had argued.

The court also accepted that the rights to consular notification and access by India were “plausible,” as well as the link between these rights and the provisional measures sought by India. It also accepted India’s claim that there was a risk of “irreparable prejudice” to the rights of Jadhav and that there was an urgency that the execution could be carried out before the court had given its final decision.

While Pakistan had indicated an execution was unlikely to take place before August this year, the court noted “that Pakistan has given no assurance that Jadhav will not be executed before the court has rendered its final decision.”

The order requires Pakistan to stay Jadhav’s execution and keep the court informed of measures it was taking to implement the order, but does not cover issues such as consular access to Jadhav. Deepak Mittal, Joint Secretary (Pakistan-Afghanistan-Iran), MEA, India’s Agent in the case, led the delegation on Thursday.

Counsel Harish Salve who appeared for India on Monday did not attend the session. Unlike on Monday, members of the delegations did not shake hands in court ahead of the order.

Speaking on the steps of the court following the order, Moazzam Ahmad Khan, Pakistan’s Ambassador to the UAE), said “ it’s a very basic thing the court has done..it has given its ruling on the provisional measures which is a procedural process…the court has said nothing on the merits or the maintainability of the case.”

India filed a request for provisional measures on 8 May, as it launched proceedings against Pakistan alleging violations of Article 36 of the Vienna Convention on Consular Relations 1963. At the start of Monday’s proceedings, President Abraham called for both sides to limit their arguments to the issues around this rather than the merits of the wider case.

The case is only the fourth one involving a death sentence to be heard by the ICJ since the first in 1999, and the first that does not involve the US. (Those involved Germany, Mexico and Paraguay.)

Gopal Baglay, Spokesperson, MEA, said, “The ICJ order creates legally binding international obligation for Pakistan.”

Meanwhile, sources told BusinessLine that the ICJ has accepted “each and every” point made by India while it has “reprimanded” Pakistan but it will take at least three to four years for the ICJ to tell Pakistan on giving consular access to India.

But Pakistan has maintained that the 2008 bilateral agreement on consular access supersedes the Vienna Convention laws.

On the other hand, sources also said, according to Pakistan’s law, Jadhav has 150 days to file for an appeal.

Commenting on the verdict, Finance and Defence Minister Arun Jaitley said any kind of judicial proceedings that is done not conducted in a transparent manner lacks justice. “The (ICJ) ruling highlights the importance of a person is allegedly accused, he has the right of effective defence else the proceeding doesn’t show fairness. Consular access is a part of it. Otherwise, he can’t be aided in defending himself and can’t even get a counselor of his choice....secret proceedings conducted in darkness are conspiratorial in nature,” he said in Srinagar.

With inputs from Surabhi

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