Kulbhushan Jadhav a former Indian navy officer was tried under the official secrets act,1923 in a military court in Pakistan for espionage and sabotage activities against Pakistan on 3rd March 2016. The proceedings were not made public and evidence included a video of him confessing to being a spy for the RAW, broadcasted by Pakistan media a month after his arrest. The Indian side denied the allegations and maintained that after retiring he had no links with the government. Appealing to the International Court of Justice, the execution of Jadhav ordered by the Pakistan military court was stayed. After years having passed ICJ made a verdict today.
India wanting annulment of Jadhav’s death sentence, presented three crucial breaches along with the defence of it happening in secrecy and lack of credibility-
- Denial of consular access under Vienna Convention (According to article 36 of the Vienna Convention when a national of a foreign country is arrested or detained, she/he has the right to notify their country’s diplomatic mission, and to meet with its officials. There is no exception clause for spies or terrorists in the Convention)
2. Delay in informing India of holding an Indian national prisoner
3. Not informing Jadhav of his consular rights.
Pakistan alleging Kulbhushan Jadhav as a serving Indian naval officer involved in espionage and terrorism-related activities also stated that the Vienna Convention is not applicable in such cases due to 2008 bilateral agreement (countries may examine consular access claims on merits in cases of “arrest, detention or sentence made on political or security grounds.”)between the two countries. As mentioned in the convention it doesn’t forbid states from “concluding international agreements confirming or supplementing or extending or amplifying the provisions thereof.” The bilateral agreement can only enhance not override, based on the judges discretion.
A 16 judge bench including judges from India and Pakistan ruled in favour of India at 6:30 PM IST today (17.7.2018). Harish salve using LaGrand (Germany V US) and Avena (Mexico V US) cases convinced the bench to affirm Jadhav’s right to consular access and notification. Suspending his death sentence the court orders Pakistan to review and reconsider the conviction on the grounds of breach of article 36(1). The court however rejected some remedies sought by India including his release and safe passage back to homeland. Unlike US and China who took a stance contrary to the ICJs ruling, Pakistan will have to abide by it, not being a permanent member of the security council.
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