Analysis: ICJ judgement on Kulbhushan Jadhav

Reading time: 8-10 minutes.

To understand the Kulbhushan Jadhav case in the International Court of Justice (ICJ) we have to look at the chronological events that took place in Pakistan and then eventually landed up in the ICJ. Kulbhushan Jadhav was a 49-year old man who was a retired Indian Navy officer, who was further sentenced to a death penalty by the Military Court of Pakistan on the charged of “Espionage and Terrorism” after a closed trial in April 2017. The death sentence invoked a sharp reaction in India. India then took up the case to the ICJ and the verdict was announced 5 months after the Hon’ble court heard the oral submissions from both India and Pakistan on 21 February 2019. It took approximately two years and two months for the proceedings to complete in the ICJ.

The Foreign Ministry spokesperson of Pakistan said in a statement that Pakistan has “fully complied” with the judgment of ICJ in the case. India’s lead counsel, Mr Harish Salve asserted that New Delhi had hoped it would be able to induce Islamabad through “back channel” to let go the Indian death-row convict. The judgment of ICJ said that Pakistan must tackle “effective review and consideration” of the conviction and the sentencing of Kulbhushan Jadhav and to also grant “consular access” to India without any delay as soon as possible. Mr Harish Salve said in a statement that, “New Delhi had written at least 5 letters to Islamabad, but they keep on denying and it is also possible that India might go to the ICJ again.”

Pakistan claimed that the Security Forces of Pakistan arrested Kulbhushan in the Balochistan province on 3rd March 2016 after he entered from Iran, but India stated that Kulbhushan was kidnapped from Iran where he was due to business transactions after retiring from the Indian Navy.
What is the Kulbhushan Jadhav Case?

The case at hand of India versus Pakistan deals with the violation of Article 36 of the ‘Vienna Convention on Consular Relations’ (hereinafter, VCCR) as alleged by India.

The UN Conference on Consular Relations adopted and enacted the VCCR on 22nd April 1963 which was convened in Vienna, Austria. There were other protocols and treaties adopted and enacted by the conference such as, the Optional Protocol which dealt with the Compulsory Settlement of Disputes, Optional Protocol which dealt with Acquisition of Nationality,  the Final Act and three resolutions which are annexed to the act.

Kulbhushan Sudhir Jadhav was an Indian National who was sentenced to death by a military court in Pakistan after conviction for terrorism and espionage. However, the crux of the dispute between India and Pakistan was the refutation of consular access to Mr Jadhav by the Consular Officers in India and deprivation of his right to seek assistance, which was a clear violation of the Vienna Convention.

The Divulgence and Contact with Nationals of the sending State (here, India) is what the Article 36 of the VCCR talks about. Para (a) declares that “consular officers are free to communicate with nationals of the sending State and to have access to them”. Under para (b), “competent authorities of the receiving State (here, Pakistan) must, without delay, inform the consular post of the sending State if a national of that State is arrested”. This provision also mandates the concerned authority of “the receiving State to inform the person concerned (here, Mr Jadhav) without delay of his rights to ask for assistance”. Consular officers have also been provided “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.”

Salient features of the judgment

Both India and Pakistan have been the members of the Vienna Convention since 28th December 1977 and 14th May 1969, respectively. Both the states were also parties to the “Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes” without any reservations or declarations.

As per the view of the Court, the dispute going on between the parties scrutinizes the question of ‘consular assistance’ of the arrest, detention, trial and sentencing of Mr. Kulbhushan Jadhav. The State of Pakistan has not challenged that the dispute at hand is related to the elucidation and implementation of the Vienna Convention. The Court has also observed that its jurisdiction in the case at hand comes about from the Article 1 of the ‘Optional Protocol’ and therefore does not extend to the ascertainment of breaches of International Law Obligations apart from those in the Vienna Convention. Considering the aforementioned, the Court observes that it has a legitimate jurisdiction as under Article 1 of the Optional Protocol to take into consideration the claims of the State of India on violations of the Vienna Convention as alleged. Furthermore, the State of Pakistan has also raised three objections to the allowed application of its counterpart. These objections were, Abuse of Power, Abuse of Rights and Unlawful Conduct, after which, and the court concluded that the three objections raised by Pakistan must be dismissed and the Application of India must be admissible.

In addition to this, the court also held that Pakistan has acted in breach of the obligations under the Article 36 of the Vienna Convention, firstly, by not notifying Mr. Kulbhushan Jadhav about his rights under Article 36(1)(b), secondly, by not notifying India, about the arrest and detention of Mr. Kulbhushan Jadhav and lastly, by denying access to Mr. Kulbhushan Jadhav by the Consular Officers of India, which was contrary to their rights, among other things, to devise his legitimate representation. The Court has observed that these violations by the State of Pakistan constitute wrongful acts internationally.

Developments after judgment

During the hearing of the case, Pakistan offered a meeting to wife and mother of Mr Kulbhushan Jadhav citing humanitarian grounds and later allowed them to meet on 25th December 2017. This was certainly done by Pakistan to portray itself as a ‘humanitarian nation’ and get an edge in ICJ where the case was going on during that time as the foreign ministry of Pakistan portrayed the whole gesture as ‘humanitarian’, which came off only after India moved to ICJ.

Finally, after the judgment in July 2019, the Pakistan Government agreed to grant consular access to Mr Kulbhushan Jadhav and on 2nd September 2019 Indian envoys met with Mr Jadhav for about 2 hours. After which Indian alleged that Mr Jadhav was under extreme pressure and was forced to narrate a parrot version of accounts which will help Pakistan in strengthening its case. Thereafter, Pakistan Government clarified on 11th September 2019 that it will not grant second consular access to Mr Jadhav.

Thereafter, on 11th May 2020 Pakistan Government’s spokesperson said that Pakistan has ‘fully complied’ with the judgment of the ICJ after the attorney representing India, Mr Harish Salve pointed out certain mistakes on the part of Pakistan.

The ICJ Judgment has been portrayed as a big win for both of the nations. However, the judgment is more of a mixed bag, where expressly it cannot be said that which country won and which one lost, but what surely can be said is that it’s a victory of International Law.

Critical analysis

The ICJ delivered the judgment with an overwhelming majority of 15:1. The only dissenting judge was an Ad-hoc Judge Jilani. In his dissenting judgment, Justice Jilani has relied on various instances to come upon his conclusion which was not even remotely concerning the questions of law in the case at hand before the ICJ. He was rather dealing with the questions of law and discussing International Law concerning those questions dwelled upon the issues like the confession of Mr Jadhav, Kashmir issue and other political issues to substantiate his stance.

The judgment delivered by majority dealt majorly with the question of violation of Article 36 of the Vienna Convention. India argued for a very wide remedy under Article 1 of the Optional Protocol, to which the court rightly observed that its “jurisdiction is limited to the interpretation or application of the Vienna Convention and does not extend to India’s claims based on any other rules of the International Law”. The ICJ judgment was well-balanced judgment where the courts while limiting its interference only till its jurisdiction, given a judgment in best compliance of the International Law.

The judgments were well in line with the previous discourse of ICJ as the remedy granted in the present case was synonymous to the remedies given in the cases of LaGrand and the Avena case which were based on the same question of law. The ICJ called for “review and reconsideration” of the conviction and sentencing of Mr Jadhav by the Pakistani Government as it did in the above-mentioned cases.

The judgment even though negated some of the far-fetched reliefs argued by India must have come off as a relief to the Government of India, as it surely got most of what it was expecting, if not whole.

Conclusion

The experience of previous judgments which were based on a similar question of law as in Kulbhushan Jadhav case was not very jubilant. Earlier the court decided the similar question of law related to the Vienna Convention on Consular Access in La Grand and Avena case where the ICJ granted similar relief of “review and consideration” by the country in violation of Convection. However, the judgment only resulted in little success. Considering these cases, there are chances that this judgment of ICJ will not be implemented in a very promising way.

The reason for the same is that Pakistan still has the discretion to decide in what manner it wants to review Mr Jadhav’s conviction and to secure his Vienna Convention rights as the judgment read as “provide, by means of its choosing, 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 of the Vienna Convention”. This judgment of ICJ can be regarded as yet another remarkable judgment in the course of International Law.

Author: Anurag Mohan Bhatnagar from National Law University Odisha.

Editor: Harinie.S from Symbiosis Law School Hyderabad.

ICJ: The Myanmar–Rohingya files

Reading time: 8-10 minutes.

In a three-day hearing in front of the world court, the International Court of Justice, Aung San Suu Kyi, state counsellor of Myanmar, who used to be a global human rights and democracy icon, personally led a delegation and defended her country from accusations of genocide against the Rohingya community on December 11.

West African nation of Gambia filed a lawsuit in November 2019 alleging that Myanmar committed ‘genocidal acts’ that were ‘intended to eradicate Rohingya as a group’ through atrocities like mass murder, rape. According to Gambia, which is backed by a 57 member Organisation for Islamic Cooperation (OIC), Myanmar’s actions violated the 1948 Genocide Convention which both the countries are parties to. The case called for imposition of ‘provisional measures’ which would act like an injunction for Myanmar to halt the atrocities towards Rohingya Muslims.

Aung San Suu Kyi, who was stripped of a prestigious human rights award by Amnesty International over her ‘indifference’ towards the atrocities committed by the Myanmar military, addressed the 17-member judge panel and defended the genocide accusation by regarding it as ‘incomplete and misleading factual picture of the situation.’

Final judgement will take years, however, this ICJ case is significant as it led the Myanmar authorities answer to the crimes and their atrocities committed against the Rohingya minority.

Who are the Rohingyas?

Rohingyas are members of Muslim ethnic individuals inhabiting western part of Myanmar (Burma). Arakan, now Rakhine, a state in Myanmar, was the key to cultural exchange between the nation and the rest of the world in the 7th century. Many Arabs and Muslim traders reached this place and settled there. They came to be known as Rohingyas. “The origins of the Rohingya in Arakan, Myanmar are well documented in the literature and are said to date from the 7th century AD. Their ancestry can be traced to Arab, Moor, Pathan, Moghul, Central Asian, and Indo-Mongoloid people who settled in the region over several centuries.”

History of disputes between the state and Rohingyas

The tension between the Burmese Buddhists and the Rohingyas (mostly Sunni Muslims) go back to the Second World War. Rakhine was the frontline of war where Japanese imperial forces confronted the British forces. The Rohingyas sided with the British colonialists who ruled the country and the Buddhists sided with the Japanese invaders hoping they would help end the British rule. Armed conflicts between Rakhines and Rohingyas killed thousands of Rakhines and Rohingyas between 1942 and 1943.[3] The Japanese were defeated and inter – ethnic conflict continued.

After Myanmar’s independence in 1948, Rohingyas sought an independent state but were discriminated by the citizenship law of 1948 that did not allow the Rohingyas who fled during the Second World War to return to the country regarding them as illegal migrants. Some Buddhists viewed Rohingyas as ‘foreigners with separatist aspirations’ who pose a risk to the religious and ethnic identity of the country, some feared the perceived threat of ‘Islamization’. In 1962, the military took over the state in a coup establishing the first of several successful military regimes. In 1964, the military introduced the National Security Act that banned all the Rohingya organisations.

Although their lineage could be traced back to the 15th century Burma, the government has been forcing them out claiming them to be illegal immigrants from Bangladesh. In 1978, after a massive crackdown called ‘Operation Dragon King’ forced about 2,00,000 Rohingyas to flee to Bangladesh. The military reportedly used rape and violence to drive them out. About 1,70,000 Rohingyas returned to Burma. Then in 1982, the government passed the Citizenship Act during the dictatorship of General Ne Win recognising 135 ethnic groups but the Rohingyas were not on the list. Thus, they became stateless people. In 1991, the military launched another operation called ‘Operation Clean and Beautiful Nation’ which led about 2,50,000 Rohingyas flee to Bangladesh. Mass killing of Rohingyas occurred in 2012 when four Muslim men were accused of raping a Buddhist woman in Rakhine. By this point, Rohingyas were persecuted, disenfranchised and rendered stateless by the Myanmar Government.

In 2016, Arakan Rohingya Salvation Army (ARSA) emerged that coordinated small – scale attacks on border police stations. In 2017, killing of police officers by the ARSA sparked the situation that led to brutal retaliation by the state security forces. Since then 210 villages have been burned to ground, more than 6,00,000 Rohingya Muslims (60 percent of whom were children) fled to Bangladesh’s Cox’s Bazar because of the systematic pattern of organised violence carried out by the Myanmar military. This violent campaign triggered the fastest growing humanitarian crisis.

Role of the Myanmar government

Contrary to the promise given by the government where they assured that the Rohingya would be brought back to their homeland, it has played a pivotal role in aggravating the atmosphere in which they live by making rules, regulations and laws that make their return and integration even more difficult. Many villages in Rakhine in which they lived have been abandoned, burned and renovated to establish new homes, housing mainly the Buddhist population and providing an area for State facilities like military bases.

Yanghee Lee, UN’s special rapporteur on human rights in Myanmar, states that Myanmar is deliberately making it impossible for the Rohingya who have driven out of the country to return as their homes are being cleared and the heavy documentation and other legal barriers make it much harder. The refugees prefer their shabby sheds over a place in Myanmar as they still have no stance on their citizenship and land rights.

Human rights violations

The ongoing crisis hosts a bunch of Human Rights violations.

  • Right to freedom of religion

The government has been accused of actively supporting Theravada Buddhism over other religions, mainly the minority of Islam and Christianity, going as far as making Buddhism a criteria for promotions in military and government ranks.

  • Right to freedom of speech

Human Rights Watch has noted that the freedom of speech and expression in Myanmar has faced a downfall in the recent years owing to the misuse of defamation as a defence.

  • Women’s Rights and Right against Exploitation

Since August 25, 2017, Burmese security forces have committed widespread rape against Rohingya women and girls in the Rakhine State to “purify the State”. Many of the rape survivors were not given the basic rape aftercare by the government.

  • Right to shelter/housing

People have been denied their basic right to a proper home by Myanmar which is yet to accept them as a part of their nation.

Principles of international law involved

A rudimentary principle of International Law is that a State should be held liable for violation of its international obligations and make good any damage done to other states and entities. Here, Myanmar has been accused of violating the 1948 Genocide Convention by conducting what the UN described as “the largest ethnic cleansing mission”. Hence, the basic principle of ‘State Liability’ under international law is applicable.

Jus Cogens norms of International Law are those which all the nations have recognized and accepted as fundamental rules. This includes the rights against genocide, torture and prohibition on acquisition of territory by force, all of which have been violated in the Rohingya-crisis. They have been supposedly killed in mass deliberately, moved from their homes forcefully by burning their villages and have been tortured mentally and physically such as the many women who were raped and subsequently killed and those who survived suffered socially and emotionally. Hence, the basic principle of ‘Jus Cogens’ has also been met.

As a result of a violation of a jus cogens norm, an Erga Omnes obligation arises on the perpetrator wherein they are held liable to all who have suffered as a result of the malicious act.

Does the ICJ have jurisdiction in this matter?

Whether the ICJ has a jurisdiction over Myanmar on the matter can be understood with the applicability of international law, here, the Convention of Prevention and Punishment of Genocide of 1948. Article 9 states “any contracting party may submit a dispute between it and another contracting party relating to the interpretation, application or fulfilment of the Convention to the ICJ, including disputes about the responsibility of a state for genocide”.

There have been reservations lodged for this by 15 states but Myanmar is not one of them and has reserved for Articles 6 and 8 instead. Article 6 states “Persons charged with genocide be tried by a competent tribunal of the state in which the offense took place or by an ‘international penal tribunal’”. This exempts Myanmar from future international liability but does not exclude it from the action of the ICJ.

Article 8 provides that “contracting parties may call upon the competent organs of the UN to take such action under the Charter of the UN as they consider appropriate for the prevention and suppression of acts of genocide”. Myanmar is the only party to have made a reservation against this provision and hence any nation can easily and rightfully approach an international body of justice to look over the matter.

Thus, it is clear that the International Court of Justice has a rightful jurisdiction over the pivotal humanitarian issue.

The next logical question would be whether the decision given by it would be binding or not. The answer to this is simple and straightforward. The judgements are final and non-negotiable, only if the meaning of it is not understood by a party could it be questioned wherein the meaning of it would be explained or if an unknown essential fact is uncovered then the case would be reconsidered. Article 94 of the UN Charter provides that “Each member of the UN undertakes to comply with the decision of the ICJ in any case to which it is a party”. Hence, if and when a judgement is given by the ICJ on this matter, it would be binding on Myanmar.

Probable way forward

In the time of turmoil the best thing to do is to look at viable solutions, some of which could be:

  • The real facts and figures of the human rights issues should be made public to make providing justice easier and faster.
  • Provisions for protection and relief of endangered refugees should be made at the camps including health facilities, police stations, education, safe drinking water and food, all the basic essentials of living a dignified human life.
  • Cooperation in the international community to find alternatives to the resettlement of Rohingya in Myanmar. Finding a more comfortable and desirable solution by countries hosting them such as Bangladesh, Saudi Arabia, Malaysia and Pakistan.
  • UN investigation teams should collaborate with local investigators and international humanitarian personalities, this would be desirable by both international and national communities.
  • Any discriminatory laws, practices or policies should be cancelled or amended.

Conclusion

The Rohingya crisis has been and continues to remain a prominent problem for years. It is a long way to peace but just because that vision seems far away doesn’t mean that it can’t become a reality one day. The agreement between Myanmar and Bangladesh and the ICJ probe by Gambia are steps on the long path which leads its way to its destination- justice. The ICJ, with its righteous jurisdiction and binding decisions, could play a major game-changer and peacemaker.

Authors: Samiksha Maskara from Hidayatullah National Law University, Raipur and Aastha Mittal from National Law University, Odisha.

Editor: Tamanna Gupta from RGNUL, Patiala.

All You Need to Know About the Kulbhushan Jadhav Verdict

Reading time: 3-4 minutes.

Kulbhushan Jadhav is an Indian name that has been in vogue in the international arena for about 3 years now. International Court of Justice (ICJ) announced its verdict on the Jadhav case today (17th July) in India’s favour. This event raises several questions in our minds like what is the background of this issue? What does the judgement mean? Is Jadhav safe now? This post is an attempt to address these doubts.

Where, how and when did it all start?

Kulbhushan Jadhav is a former officer of the Indian navy. In March 2016, he was arrested by Pakistani agencies which accused him of being “an Indian spy”. They formally informed India about the arrest a few days later. Acting according to international customs, India demanded consular access to Jadhav. Pakistan denied 16 such requests.

Consular access, in essence, means the ability of people to have access to embassy officials of their own country in a foreign nation. The Veinna Convention of 1963 (of which Pakistan is a signatory) allows foreign nationals who are arrested or detained in host countries to have such access. This enables the arrested persons to get legal assistance. By denying the same, Pakistan violated International Law.

Pakistan claimed that Jadhav was arrested in Balochistan, Pakistan. However, India has firmly maintained that he was detained in Iran while on a personal business there. Fast forward to April 2017, a Pakistani military court conducted his trial in ambiguous circumstances and sentenced him to death. Jadhav was found guilty of espionage (gathering confidential information through illicit means) and sabotage (interfering with the national defence of a country).   

What steps did India take to protect its citizen?

India approached ICJ promptly in May 2017 and denied Pakistani claims about Jadhav being a spy. India termed it an “imaginary lie” and asked ICJ to issue an order to Pakistan to release Jadhav. The main argument was that Pakistan denied consular access to Jadhav during his trial and awarded him a death sentence.

India demanded that Pakistan should not be allowed to try Jadhav again even after granting consular access because Pakistani military courts “do not satisfy the standards of due process”. In response to these submissions, Pakistan stated that “Vienna Convention does not apply to spies”. ICJ evaluated all such arguments and gave its judgement in favour of India, which we shall now discuss.

What is the verdict of ICJ?

Salient features of the judgement are:

  • There will be review and reconsideration of death sentence awarded to Jadhav by the military court.
  • India will have consular access to Jadhav. It means that he can be provided with legal assistance.
  • Jadhav won’t be released, but he will get a fair trail as per the constitution of Pakistan.

What is the probable future for Jadhav?

It is clear that Jadhav won’t be released by Pakistan any time soon. However, it is a great relief that ICJ has directed Pakistan to suspend and review his death sentence. He will also get legal assistance from India which means that he has a greater chance of coming home now than earlier.

Renowned Senior Advocate Harish Salve, who fought the tough legal battle for India at ICJ, has stated that Jadhav will be informed about his legal rights. Salve also assured Indians that Jadhav won’t be executed. These developments are definitely a ray of hope for India and we are confident that justice will prevail.