In what could become a serious diplomatic row, Pakistan’s Additional Attorney General Ahmed Irfan has announced that detained Indian national Kulbhushan Jadhav has refused to file a petition for review and reconsideration of his sentence and conviction, ANI reported on Wednesday, 8 July.
Kulbhushan Jadhav, an Indian national and retired naval officer, was arrested by Pakistan on 3 March 2016 and accused of being an Indian spy and a terrorist. He was tried by a military court, convicted and sentenced to death in early 2017. India took Pakistan to the International Court of Justice (ICJ) over the case.
On 17 July 2019, the ICJ held that Pakistan had violated international law by failing to provide Jadhav with consular access after his arrest, as a result of which it needed to conduct an “effective review and reconsideration” of his conviction and death sentence for espionage and terrorism offences.
The Pakistani Additional Attorney General is reported to claim that Jadhav was invited to file a review petition on 17 June this year, but declined to do so.
WHAT DOES THIS MEAN FOR JADHAV NOW?
ANI is also citing reports from Pakistan media (see this, for example), that Jadhav decided that instead of the review, he will follow up on his pending mercy petition, and that consular access has been offered to him.
There are two clemency procedures that Jadhav has under Pakistani law:
- A mercy petition to the Chief of Army Staff within 60 days of the decision by the Appellate Court in Pakistan, which had confirmed his conviction and sentence.
- A mercy petition to the President of Pakistan within 90 days of the decision of the Chief of Army Staff on the original mercy petition.
Jadhav had already filed the first mercy petition with the Chief of Army Staff before the matter went to the ICJ, but the world court in its judgment noted that the outcome of this petition had not even been provided by Pakistan to them.
The court also noted that no evidence had been submitted to them regarding the presidential mercy petition.
This raises serious concerns about the transparency and efficacy of this as an option of legal recourse for Jadhav.
IS PAKISTAN VIOLATING THE ICJ JUDGMENT?
There are serious doubts to be raised about whether Jadhav has actually voluntarily decided to drop the review petition, as this would make no sense at all, from a legal or common sense point of view.
The International Court of Justice had specifically raised concerns over the clemency/mercy petition process, and had confirmed that “the clemency process is not sufficient to serve as an appropriate means of review and reconsideration” (para 143).
The ICJ emphasised the need for an “effective” review of Jadhav’s conviction and sentence because of the serious violation of international law by Pakistan in this case – denial of consular access, a violation of Article 36(1) of the Vienna Convention on Consular Relations.
EXPLAINED: Article 36 of the Vienna Convention on Consular Relations
Article 36(1)(b) of the VCCR states that if a foreign national of Country A is arrested in Country B, Country B needs to inform the foreign national of his rights under the VCCR without delay, including informing the consular authorities of Country A and getting help from them.
If the foreign national requests, Country B needs to inform the consular post of Country A (its embassy, high commission, etc) that they have arrested/detained a national of Country A without undue delay.
Article 36(1)(c) states that consular officers of Country A have a right to visit nationals from Country A that have been arrested or detained in any other country, and shall also have the right to arrange for legal aid for them.
While the court did not lay down specific instructions for the review, it noted that the violation of the right to consular access during previous proceedings had to be “fully examined and properly addressed during the review and reconsideration process.”
Crucially, the review was supposed to be a way to scrutinise the prejudice against Jadhav – inevitable given the sensitive nature of the case and the charged atmosphere around issues of espionage – and the right of defence of him as an accused, and was supposed to address this.
If the mercy procedure is the only one that is followed, none of this is going to happen, which appears to be a clear violation of the ICJ judgment. The ICJ had specifically noted that clemency procedures can supplement the review – they cannot replace it.
WHAT OPTIONS DOES INDIA HAVE AT THIS POINT?
The Pakistani media are claiming that the Additional Attorney General has said that consular access will be provided to Jadhav, which India needs to use to get to the bottom of this, to help Jadhav reverse this alleged ‘decision’ by him. Indian authorities can help him file his review petition even at this time.
If Pakistan refuses to accept the review and insists on only going through clemency procedures, then India should move an application in the ICJ asking first for ‘provisional measures’ to prevent any action prejudicial to Jadhav, and then alleging violations of the judgment.
A fresh case can also be filed with the court, as violation of the judgment counts as a fresh and separate violation of international law by Pakistan, upon which the original judgment was binding.
India should also immediately notify the UN Security Council (which is the effective enforcement mechanism for an ICJ judgment) of the violation by Pakistan, and ask for the issue to be taken up on an urgent basis.
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