I. WHAT IS THE JADHAV CASE ABOUT?
(Additional information is contained in the Annex below.)
1. The International Court of Justice (“ICJ”), which sits in The Hague, is hearing a case brought by India against Pakistan under the Vienna Convention on Consular Relations 1963 (Article 36(1)(b)).
2. India argues that Commander Kulbhushan Jadhav is an innocent businessman who was kidnapped from Iran, brought to Pakistan, and tortured to confess that he was a Commander in the Indian Navy working with India’s Research & Analysis Wing (“RAW” – India’s primary foreign intelligence agency). India argues that it was entitled to obtain consular access to Commander Jadhav as soon as his detention was made public by Pakistan on 25 March 2016. India argues that the trial and conviction of Commander Jadhav for espionage and terrorism offences by a Military Court on 10 April 2017 was “a farce”. India contends that the denial of consular access requires the ICJ to “at least” order the acquittal, release and return to India of Commander Jadhav.
3. Pakistan rejects all of India’s assertions. Pakistan points to evidence obtained from Commander Jadhav after his arrest, and during the criminal process leading to his conviction as amply demonstrating his activities in fomenting terrorism and engaging in espionage within Pakistan. Pakistan maintains that it would be incompatible with international law for someone sent as a spy/terrorist by a State to be afforded access to officials of that State, as India asserts. Pakistan also points to an express Agreement on Consular Access dated 21 May 2008 between India and Pakistan, which allows each State to consider a request for consular access “on its merits” in a case involving national security. Furthermore, Pakistan points to the uncontradicted evidence that Commander Jadhav was provided with an authentic Indian passport in a ‘cover’ Muslim name by the Indian authorities, as a clear and obvious link between his conduct and the Government of India. Such conduct being a blatant violation of international law should bar any claim for relief from a court. India refuses to reply on this issue and (unconvincingly) describes it as “mischievous propaganda”.
4. In addition, Pakistan points to the fact that, in all of the ICJ’s previous decisions concerning Article 36 of the Vienna Convention on Consular Relations 1963 (which involved death sentences imposed by the USA), the Court made it clear that it was not a court of criminal appeal and the presence of “effective” “review and reconsideration” by domestic courts was an appropriate remedy, even if a breach of the right to consular access had been established. The High Court and Supreme Court of Pakistan provide such review, as confirmed by leading UK-based military law experts.
II. SIX OF THE KEY POINTS WHICH INDIA WILL NEED TO ANSWER:
India says Commander Jadhav was an innocent Indian national who was kidnapped from Iran to make him confess to being an Indian RAW agent. India has failed to make good this allegation despite repeated requests for evidence that he was kidnapped – Why not?
India says Commander Jadhav retired from the Indian Navy – India has failed to explain when/why he retired (he was only 47 years old when arrested). Why not?
India refuses to explain how Commander Jadhav was in possession of an authentic Indian passport issued in a false ‘cover’ Muslim name ‘Hussein Mubarak Patel’ which he had used at least 17 times to enter/exit India. India has been asked this question many times (even by highly respected Indian senior journalists such as Praveen Swami and Karan Thapar) but simply says this is “irrelevant” or “mischievous propaganda”. India eventually said the passport was “clearly a forgery” but refuses to explain this statement, or why a highly credible independent UK expert is wrong when he says it is an authentic Indian passport issued by the Indian authorities. Why not?
India demands that the ICJ orders the “return” of Commander Jadhav to India. However, the ICJ has repeatedly stated it is not a criminal court of appeal. It has always so far made it clear in all its decisions that, even if consular access was denied, the proper order is for there to be effective review and reconsideration by the local Courts. Commander Jadhav and his family have been able to seek this at any time since 10 April 2017 in accordance with Article 199 of the Constitution of Pakistan. Instead, India launched proceedings in the ICJ 14 months after he was arrested and a month after he was convicted to seek a ‘stay’ order without a hearing. Why is India asking for an order for “return” in the face of the ICJ’s decision and the independent expert evidence confirming Pakistan has effective review and reconsideration before the High Court and Supreme Court?
India has failed to explain why the Agreement on Consular Access between India and Pakistan dated 21 May 2008 (which India drafted), and which provides (at Article (vi)) for either State to be entitled to consider a request for consular access “on its merits” where it involves a person implicated in national security matters, does not apply in this case. Why not?
India fails to explain why highly respected UK based Military Law experts are wrong when they say that Pakistan’s High Court and Supreme Court provide an effective review and reconsideration of the Military Court process.
III. THE HEARING
5. Pakistan has continually pressed for the expedited hearing of this matter. The ICJ has set a timetable for public hearings to be held on 18-21 February 2019 in The Hague (which will be live-streamed, including on the UN TV website).
6. India will go first, on 18 February 2019 (10:00-13:00 local time), then Pakistan will make submissions on 19 February 2019 (10:00-13:00 local time). India will reply on 20 February 2019 (15:00-16:30 local time). Pakistan will make its closing submissions on 21 February 2019 (16:30-18:00 local time).
7.It is expected that the ICJ decision may be delivered by the summer of 2019.
8. In accordance with the Rules of Court, all pleadings should be made available after the commencement of the hearing at 18 February 2019 (10:00 local time) on this page(https://www.icj-cij.org/en/case/168).
9. Pakistan’s arguments are summarised in its Counter-Memorial (at paragraphs 6-21) and its Rejoinder (at paragraphs 1-10). The experts’ reports referred to above are at Annexes 141 and 142 to the Counter-Memorial.
10. The legal arguments for the Government of Pakistan will be presented by English Queen’s Counsel Khawar Qureshi QC who also drafted the written pleadings (for CV seewww.serlecourt.co.uk or www.mcnairchambers.com). The delegation will be formally led by the Attorney General of Pakistan. It is understood that India’s arguments will be presented by Mr. Harish Salve.
11. The following pleadings and evidence can also be found at the links below:
(1) Counter-Memorial summary (at paragraphs 6-21)
(2) Rejoinder summary (at paragraphs 1-10)
(3) Annex 141 of the Counter-Memorial (Passport Expert Report), especially paragraphs 9 and 15
(4) Annex 142 of the Counter-Memorial (Military Law Experts’ Report), especially paragraph 3
ANNEX – Additional Information
1. On 3 March 2016, Commander Kulbhushan Jadhav was arrested in the Balochistan province of Pakistan, having illegally and clandestinely entered Pakistan from Iranian territory. India has said that Commander Jadhav was “kidnapped” from Iran – but has provided no substantive evidence underpinning such an allegation. Commander Jadhav was carrying an Indian passport in the name of ‘Hussein Mubarak Patel’.
2. On 25 March 2016, Pakistan shared with the world at large Commander Jadhav’s confession (confirmed before a Magistrate) as a serving officer of the Indian Navy, who was operating for India’s Research & Analysis Wing (“RAW”), to having been involved in crimes of espionage and terrorism directed toward the infrastructure and people of Pakistan, including the Gwadar port and various facilities involved in the prominent China-Pakistan Economic Corridor (CPEC). India says that Commander Jadhav retired from the Indian Navy (but has not said when or provided any further detail). From 25 March 2016, India sought consular access to Commander Jadhav, which India says was denied. Pakistan says that an express agreement between India and Pakistan (drafted by India) headed Agreement on Consular Access entered into in 2008, at Article (vi), entitles either State to consider a request for Consular Access upon the merits where it involves a person implicated in National Security matters.
3. Pakistan sent a letter making specific requests of India to assist in the investigation of Commander Jadhav on 23 January 2017 attaching copies of the authentic Indian passport Commander Jadhav was using in the name of ‘Hussein Mubarak Patel’, as well as the FIR and other material relating to the investigation into Commander Jadhav’s activities. India did not provide any assistance at all nor any evidence (either inculpatory or exculpatory) of Commander Jadhav.
4. Commander Jadhav was provided with legal representation, and after several hearings, he was tried and convicted by a Military Court in Pakistan, which passed the death sentence on 10 April 2017. Pakistan’s legal system, including its Constitution, provides for the availability of clemency petitions as of right to the Chief of Army Staff and then to the President of Pakistan.
5. In addition, judicial review by Pakistan’s High Court and Supreme Court of the Military Court process and judgment is available pursuant to Article 199 of the Constitution of Pakistan. Pakistan’s Courts have frequently stayed sentences imposed by the Military Court at the request of the convict or his family, often within hours of the sentence being passed. No application of this nature has ever been made to the Pakistani Courts by Commander Jadhav or his family.
6. Both India and Pakistan have previously signed and become parties to the Vienna Convention on Consular Relations 1963 (“VCCR 1963”). Furthermore, both India and Pakistan signed and became parties to a separate agreement (called the Optional Protocol) that gives the ICJ jurisdiction over disputes arising out of the interpretation or application of the VCCR 1963.
(B) ICJ PROCEEDINGS
7. On 8 May 2017, India commenced these proceedings before the ICJ alleging that Pakistan had committed a breach of the VCCR 1963 by failing to grant immediate consular access in respect of Commander Jadhav, and alleging that the Military Court procedure was flagrantly unfair. Centrally, the relief India sought was “at least” the acquittal/release/transfer to India of Commander Jadhav. India also demanded by way of Provisional Measures that the ICJ should immediately make an order (without even having a hearing) that Pakistan should be restrained from executing Commander Jadhav pending the full hearing of India’s claims.
8. As mentioned above, Pakistan’s civilian courts can and do routinely order a stay of execution pending the full hearing of legal challenges to decisions emanating from Pakistan’s Military Courts – they do so in order to preserve the status quo without making any decision as to the facts or merits. The Pakistani courts have shown themselves capable of acting very quickly (within hours) in this manner in response to an application for a stay of execution. It was therefore not unusual that the ICJ directed a stay of execution on 18 May 2017 pending a full hearing.
(C) THE ARGUMENTS – KEY POINTS (as raised on 15 May 2017 by Pakistan)
9. Following the Provisional Measures phase, India filed its full pleading (Memorial) on 13 September 2017. Pakistan filed a substantial and very detailed Counter-Memorial on 13 December 2017. These will be publically available on 18 February 2019 (see further details below) and the contents cannot be referred to until then:
a. Pakistan raises important arguments of international law that have never been raised or considered before, such as the existence in Customary International Law (as evidenced by the practices of States) of an ‘espionage exception’ to consular access (given the obvious dangers of allowing a state-sponsored spy/terrorist untrammelled communication with the authorities of his sending State that despatched him to commit unlawful acts);
b. Furthermore, Pakistan has drawn attention to a bilateral agreement concerning consular access as between India and Pakistan entered into in 2008 that clearly qualifies consular access in matters of national security;
c. Significantly, Pakistan has asked the ICJ to consider whether India has acted illegally (with the consequence that it should not be granted relief) in facilitating Commander Jadhav’s espionage/terrorism by providing him with the passport referred to above;
d. The passport was carefully examined by a UK-based highly regarded independent expert whose detailed report concludes it is an authentic passport issued by the competent Indian authorities in a false identity (“the Passport Issue”). India refuses to explain the Passport Issue and, instead, describes this as “irrelevant” or “mischievous propaganda”;
e. Also, two eminent independent experts (formerly senior officers of the British Army) carried out a review of the Military Court jurisdictions of several major countries around the world (including the USA, UK, India and Pakistan), and found that Pakistan’s own Military Court jurisdiction was sound in law and contained no manifest unfairness. They concluded that the High Court and Supreme Court of Pakistan provided an effective review process for the Military Court system;
f. On the previous occasions when the ICJ has considered the issue of death penalty/consular access, the ICJ has never ordered relief of “acquittal, release and return” such as that sought by India. All of its previous decisions indicate that the ICJ would never do so. The ICJ has repeatedly stated that it is not a Criminal Court of Appeal. Where effective review of a conviction is available before the domestic Courts, all relevant previous decisions of the ICJ make it clear that this would be the appropriate remedy even if Consular access had been denied prior to conviction.
10. Despite having been on notice of Pakistan’s key arguments since the Provisional Measures phase, India insisted on a further round of pleadings. The ICJ granted permission, and India filed its Reply on 17 April 2018, to which Pakistan filed a detailed Rejoinder in response on 17 July 2018.