What next for Pakistan: how ICJ raises bar for Kulbhushan Jadhav’s due process

Apurva Vishwanath
India had also requested the court to declare the decision of Pakistan s military court to convict Kulbhushan Jadhav and award him the death penalty as violative of international law.

The verdict of the International Court of Justice Wednesday puts pressure on Pakistan by raising the bar for the next steps in Kulbhushan Jadhav s due process.

For one, ruling in India s favour in a 15-1 vote, the ICJ said Pakistan has breached international law by denying Jadhav counsular access and legal representation. The court verdict, in paragraphs 99-119, indicts Pakistan s military court that does not allow for legal representation.

So the ICJ by allowing legal representation for Jadhav has, essentially, forced Pakistan to follow a more rigorous process to ensure an effective review as per the court s ruling. In fact, the court went to the extent of saying that Pakistan must ensure this (even) if necessary, by enacting appropriate legislation.

Full text: Kulbhushan Jadhav ICJ verdict

Senior advocate Harish Salve, addressing the media in London, said that if Pakistan conducts the trial in its military court, it would have to amend its laws to allow legal representation. India had argued that trial in the military courts in Pakistan does not satisfy the minimum standards of due process in its application to civilians and an appeal against the military court decision would be insufficient.

India had also requested the court to declare the decision of Pakistan s military court to convict Jadhav and award him the death penalty as violative of international law. While the ICJ stopped short of doing so, it directed continuous stay of the execution until Pakistan effectively reviews and reconsiders the case. The court, however, indicated that Pakistan must review and reconsider the case by a means of its own choosing and must be performed unconditionally.

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Even as India s request for the acquittal, release and return of Jadhav was denied by the International Court of Justice, the court refused every claim including questions on Jadhav s nationality made by Pakistan.

While Pakistan claimed that Jadhav was not entitled to consular access since he was arrested in an alleged case of espionage, the ICJ said that such an exception cannot be justified in international law. The verdict clarified that the Vienna Convention on Consular Access is applicable even for spies and Indian consular officers must be given access to Jadhav to arrange for his legal representation.

Pakistan had also argued that a 2008 bilateral agreement between India and Pakistan on consular access modifies the 1963 Vienna Convention to exclude consular access in cases of political or security grounds. However, the ICJ ruled that bilateral agreements must be read as supplementing, not replacing multilateral treaties.

The court concluded that Pakistan had violated international law by not informing India, without delay, of the detention.

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Pakistan had also raised questions on Jadhav s nationality and had argued that India had failed to prove his nationality since it did not provide a copy of his actual passport in his real name.

India had argued that it was not bound to cooperate with Pakistan in a criminal investigation. The ICJ said that there is no room for doubt that Jadhav is of Indian nationality. In fact, the court noted that on various occasions Pakistan itself has referred to Jadhav as an Indian in its communication to India including in its Letter of Assistance for Criminal Investigation against Indian National Kulbhushan Jadhav.