Kulbushan Jhadav. PHOTO: AFP
ISLAMABAD: The International Court of Justice (ICJ) has presented its report on the case of self-confessed Indian spy Kulbhushan Jadhav to the United Nations Secretary General Antonio Guterres.
In the report, the ICJ President Judge Abduylqawi Yusuf has noted that the court on August 1 received a communication from Pakistan confirming its commitment to implement the ICJ’s July 17 verdict in full.
"In particular, Pakistan stated that Mr Jadhav had been immediately informed of his rights under the Vienna Convention and that the consular post of the High Commission of India in Islamabad had been invited to visit him on 2 August 2019,”said the ICJ report
The ICJ president also wrote that he now come to the crux of the court’s ruling, where the court considered the reparation and remedies to be granted, after it had found that the rights to consular access had been violated.
In line with its earlier jurisprudence in other cases dealing with breaches of the Vienna Convention, the ICJ found that the appropriate remedy was effective review and reconsideration of the conviction and sentence of Jadhav.
"The Court moreover clarified what it considered to be the requirements of effective review and reconsideration. It stressed that Pakistan must ensure that full weight is given to the effect of the violation of the rights set forth in the Vienna Convention and guarantee that the violation and the possible prejudice caused by the violation are fully examined.
“While the Court left the choice of means to provide effective review and reconsideration to Pakistan, it noted that effective review and reconsideration presupposes the existence of a procedure that is suitable for this purpose and observed that it is normally the judicial process that is suited to this task."
A senior lawyer, who has expertise on international law, said the ICJ rules require the president to report the matter to the UN secretary general and the UN can debate compliance with ICJ judgments. “If Pakistan does not implement the judgment then UN Security Council can pass a resolution,” he said.
Another international law expert Barrister Taimur Malik said this is all basically just a summary of the ICJ judgment. “It’s a usual update given by the ICJ to the UNGA.”
Since announcement of ICJ judgment, Pakistan has allowed consular access once but has not taken any steps towards ‘effective review’ of Jadhav’s conviction, which will also be challenge for Pakistan.
For the first time, the ICJ with 15-1 majority on July 17 ruled that consular access be given to spies under Article 36 of the Vienna Convention. Ad hoc judge Tassaduq Hussain Jilani had written a dissenting note to the majority verdict.
The ICJ in its 42-page verdict ruled that Pakistan is under an obligation to cease those acts and to comply fully with its obligations under Article 36 of the Vienna Convention.
“Consequently, Pakistan must inform Mr Jadhav without further delay of his rights under Article 36, paragraph 1 (b), and allow Indian consular officers to have access to him and to arrange for his legal representation, as provided by Article 36, paragraph 1 (a) and (c),” said judgment.
Paragraph (a) says consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State.
Paragraph (c) states that consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation.
They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison or detention if he expressly opposes such action.
The ICJ in its judgment had directed Pakistan to take all measures to provide for effective review and reconsideration, including, if necessary, by enacting ‘appropriate legislation’.
The court also said the obligation to provide effective review and reconsideration can be carried out in various ways and the choice of means is left to Pakistan.
It is learnt that the government’s legal minds are considering different options to fulfill this aspect of the ICJ verdict. Earlier, Indian embassy had contacted few lawyers to plead Kulbhushan case but there is no fresh update as to whether the convict will challenge his conviction or not in the high court.
The ICJ asked Pakistan for “effective review and reconsideration of the conviction and sentence of Mr Jadhav” so as to ensure that full weight is given to the effect of the violation of the rights set forth in Article 36, paragraph 1, of the Convention and guarantee that the violation and the possible prejudice caused by the violation are fully examined.
Likewise, the ICJ also maintained stay on execution of Jadhav till ‘effective review’
The court pointed out that respect for the principles of a fair trial is of cardinal importance in any review and reconsideration, and that, in the circumstances of the present case, it is essential for the review and reconsideration of the conviction and sentence of Jadhav to be effective.
The ICJ also noted that the violation of the rights set forth in Article 36, paragraph 1, of the Vienna Convention, and its implications for the principles of a fair trial, should be fully examined and properly addressed during the review and reconsideration process.
In particular, 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, it added.
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