17th July is a truly historic day. Celebrated the world over as the International Justice Day, it commemorates the adoption of the Rome Statute for the International Criminal Court which ushered in a paradigm shift in the international criminal law and justice.
This year, 17th July is a memorable day for the Indian Government. Its efforts over the last three years to secure justice for its national Mr. Kulbhushan Sudhir Jadhav, who is imprisoned in Pakistan, got a major boost with the International Court of Justice (ICJ) delivering a far-reaching judgment which can be regarded as atrue legal, diplomatic and moral victory.
The ICJ in its findings held that Pakistan is under an obligation to inform Mr. Kulbhushan Jadhav “without further delay” of his rights and to provide Indian consular officers access to him in accordance with Article 36 of the Vienna Convention on Consular Relations (VCCR).
The ICJ also found a breach on the part of Pakistan in its obligations under the international law to inform Kulbhushan Jadhav “without delay” of his rights under Art. 36 of VCCR. In addition, the Court found that “by not notifying the appropriate consular post of the Republic of India in the Islamic Republic of Pakistan without delay of the detention of Mr. Kulbhushan Sudhir Jadhav and thereby depriving the Republic of India of the right to render the assistance provided for by the Vienna Convention to the individual concerned, the Islamic Republic of Pakistan breached the obligations incumbent upon it” under Article 36, 1 (b), of the VCCR.
Having regard to violation of rights contained in Art. 36 of VCCR, ICJ held that “the appropriate reparation in this case consisted in the obligation of the Islamic Republic of Pakistan to provide, by the means of its own choosing, effective review and reconsideration of the conviction and sentence of Mr. Kulbhushan Sudhir Jadhav”. It further declared that a continued stay of execution constituted an indispensable condition for the effective review and reconsideration of the conviction and sentence of Mr. Kulbhushan Jadhav.
There are a number of important issues at stake here. At the heart of the issue is the treatment of a civilian imprisoned in a foreign country and pitted against an alien and unresponsive State. A person accused of criminal charges also has rights.
By not accepting Pakistan’s arguments made during the course of trial, the ICJ sent out a powerful signal. It does not take rocket science to figure out the implications of a scenario in which someone is branded as a “terrorist” or a “spy” and sentenced to death by a military court without following due process. The situation get much more complicated when we see that such trials are normally held `in camera’ with a limited appeal before the Supreme Court and ineffectiveness of clemency petitions in this case as noted by the Court. By rejecting all arguments made by Pakistan to justify its treatment of Kulbhushan Jadav, ICJ prevented a wrong precedent being set in the international arena.
It is a vindication of international law in general and international human rights law in particular. The Universal Declaration of Human Rights, 1948 has proclaimed the right to fair trial. This right to fair trial finds echo in Article 14 of the International Covenant on Civil and Political Rights, 1966 (ICCPR). This Covenant further provides for humane treatment of those who have been deprived of their liberty, besides providing for right to life and right to be free from torture. All these rights stand violated in this case.
Death penalty is “irreversible” and when it is handed by a military court without a proper legal representation or consular access to a foreign national, it is a serious cause of concern and represents an affront to universally recognized human rights principles. How can civilians be tried by a military court and that too without giving an adequate opportunity for the person to defend himself? How can videos of doctored confessions be admissible as evidence? The Common Law systems accord a pride of place to norms such as `presumption of innocence’ and ` testimonial compulsion’. In other words, no one can be compelled to be a witness against himself. Such exacting standards have been put in place in Law to save the small individual who is pitted against the power of the mighty State.
Holding a person `incommunicado’ without access to family or relatives has been held to breach the prohibition against torture, cruel, inhuman, degrading treatment or punishment by the Human Rights Committee which monitors the International Covenant on Civil and Political Rights, 1966. The European Court of Human Rights at Strasbourg has also asserted this prohibition in a number of cases before it. One can easily visualize the effects on the mental health of a person who has been held in a foreign country and who has been denied legal representation, consular access and who knows even a proper medical treatment. At stake are important human rights issues which are of deep concern to all members of international community.
With intense international attention attracted by this case, one hopes that Kulbushan Jadav is given access to consular access, legal representation and a fair trial. In fact, the ICJ has emphasized “effective” review and reconsideration of the trial and sentencing of Jadav. In other words, it cannot be “sham” trial or as the saying goes “kangaroo justice”.
In particular, paragraph 146 of the ICJ judgment is very important. It says, “The Court notes that the obligation to provide effective review and reconsideration can be carried out in various ways. The choice of means is left to Pakistan (cf. LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 514, para. 125). Nevertheless, freedom in the choice of means is not without qualification (Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, I.C.J. Reports 2004 (I), p. 62, para. 131). The obligation to provide effective review and reconsideration is “an obligation of result” which “must be performed unconditionally” (Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mexico v. United States of America), Judgment, I.C.J. Reports 2009, p. 17, para. 44).” Based on these considerations, ICJ asserted that Pakistan shall take all measures to provide for effective review and reconsideration, including, if necessary, by enacting appropriate legislation.
In May 2017, ICJ stayed the execution of Kulbhushan Jadav as a provisional measure. In its final order on 17 July 2019, the Court upheld the primacy of rule of law at the international level. Through a well-reasoned order, it rejected questions about the jurisdiction of ICJ over this matter and systematically refuted all arguments mounted by the Pakistan about the applicability of VCCR. While the ICJ order is a welcome one, it critically hinges on `state cooperation’. It appears that there is still a long road to traverse for the full implementation of this judgment. Eventually, it depends on the political will, sincerity on the part of our neighbour and state of Indo-Pak relations.
(The writer is Professor and Executive Director, Centre for Human Rights Studies, O.P. Jindal Global University. The views expressed in this article are personal.)