Daily Times

Whilst an Indian batsman had been given out leg-before-wicket (LBW), he not only reviewed the decision of LBW, but also prayed for a hundred extra runs to be awarded to him, along with a life-long allowance of not been given out against Pakistan. The third umpire simply gave the batsman ‘Not Out’, as the ball was missing the leg stump. Now the Pakistani cricket team claims that it has achieved a great victory because other ‘reliefs’ were not granted to the batsman, whilst Indians celebrate the fact that their batsman has been declared Not Out.

This is how one can explain, in cricketing terms, the recent verdict of the International Court of Justice (ICJ) involving the arch rivals, India and Pakistan, in the matter of the detention and trial of an Indian national, Kulbhushan Sudhir Jadhav, sentenced to death by a military court in Pakistan.

The Indian legal team devised an ingenious way to procure the annulment of the military court’s decision and Jadhav’s release, by alluding to the alleged violations of the Article 36 of the Vienna Convention by Pakistan, i.e., failure of Pakistan to inform India, without delay, of the arrest and/or detention of Jadhav; no intimation of Jadhav’s rights under Article 36 thereof; and finally, lack of consular access to him by Pakistan.

The Indian side, therefore, claimed that the conviction and sentence was liable to be defective and hence must be annulled, followed by the release of Jadhav. In the alternative, the Indian legal team stated that if the Court chose not to annul the military court’s decision, it should give a direction to Pakistan to refrain from giving effect to the said sentence, and to take steps to annul the decision, apart from re-trying Jadhav before a civilian court.

Pakistan, on its part, raised certain objections to the admissibility of the dispute before ICJ, which included India’s failure to give pre-consideration to other dispute settlement procedures under the Optional Protocol to the Vienna Convention; India’s refusal to provide proof of Jadhav’s Indian nationality, which is a pre-condition for ICJ jurisdiction under the convention, by means of his actual passport in his real name; and, India’s uncooperative and unlawful conduct respectively in relation to criminal investigations into Jadhav’s activities, and his authorisation to cross the Indian border with a ‘false cover name authentic passport’ in order to conduct espionage and terrorist activities.

The Indian legal team devised an ingenious way to procure the annulment of the military court’s decision and Jadhav’s release

All of these objections were rejected in toto by the Court, much to the chagrin of Pakistan’s ad-hoc judge on the panel, ex-Chief Justice of Pakistan, Tassaduq Jilani, who stated, in his dissenting note, that India had not provided any refutation to the circumstances in which it had provided an authentic Indian passport with false identity to Jadhav. Nevertheless, the Court chose to overlook the sinister and egregious conduct of India and Jadhav, and overruled all the preliminary objections of Pakistan.

The Court also did not give any consideration to Pakistan’s argument that Article 36 of the Convention was not applicable in “prima facie cases of espionage”; and that in these cases, as per the preamble of the Convention, “the rules of customary International law would continue to govern matters not expressly regulated by the provisions of the present Convention.” Neither did the ICJ gave any importance to the contention that the bilateral agreement of 2008, pertaining to the humane treatment of nationals of either country arrested, detained or imprisoned in other country, was applicable to the case at hand. Interestingly, in the process of bringing the matter within the ambit of the Article 36, India tacitly admitted to the espionage charge upon Jadhav.

After holding the applicability of the Article 36 in espionage cases, the Court went on to hold that Pakistan circumvented the provision Article 36, as outlined above. In this regard, “The Court considers that breaches by Pakistan…constitute internationally wrongful acts of a continuing character.” Therefore, the Court held that Pakistan must rectify the afore-said breaches without fail.

After totally knocking down Pakistan’s contentions, the Court then concluded that it is not the conviction and sentence of Jadhav that are to be regarded as a violation of the provisions of the Vienna Convention, but this jurisdiction is limited to the interpretation or application of only this Convention. Therefore, the Court went on to decline India’s request for annulment of the military court’s decision, and release of Jadhav. However, the Indian claim that Pakistan must be restrained from giving effect to the sentence, whilst the latter takes measures to annul the decision under the Pakistani law, had been partially accepted upon Pakistan’s assertion that it would take measures for the effective review and reconsideration of the conviction and sentence of the accused, taking into account the potential effects of any violations of Article 36 of the Convention.

The Court, furthermore, extended the already granted stay over the execution of the military court’s sentence, by stating that “a continued stay of execution constitutes an indispensable condition for the effective review and reconsideration of the conviction and sentence of Mr Jadhav.” Meanwhile, Pakistan has been directed by the Court to take measures for the effective review and reconsideration of the conviction and sentence of the accused, “including, if necessary, by enacting appropriate legislation.” The need for the attribution to the enactment of “appropriate legislation” arose when the Court observed the limitations upon the constitutional jurisdiction of the High Courts of Pakistan, which can only review such military verdicts on the limited grounds of procedural irregularities, including malafide and lack of jurisdiction.

To sum it up, the Indian side claimed more than it hoped it could get from the ICJ, and got what it reasonably could, under the Vienna convention and its optional protocol. On the other hand, the Pakistani side seems to be satisfied with the fact that its efforts ensured that India was not rewarded with extra relief, which it could not have been given in any case by the ICJ under its jurisdiction related to the Vienna Convention. What a pyrrhic victory, it seems, for Pakistan.

The writer is an advocate, practising Constitutional and International law in Pakistan