Pakistan’s Parliament enacted a law recently that grants Indian death-row prisoner Kulbhushan Jadhav the ability to file a review appeal against his conviction by a military court. This legislative action was performed to implement an order from the International Court of Justice (ICJ). However, India has pointed out several “shortcomings” in the law, arguing that more steps are required to fully implement the ICJ’s order.
Kulbhushan Jadhav Case: A Brief Overview
Kulbhushan Jadhav, a 51-year-old retired Indian Navy officer, was sentenced to death by a Pakistani military court in April 2017 on charges of espionage and terrorism. In December the same year, Jadhav’s wife and mother were allowed to meet him across a glass partition. India has contested Pakistan’s claim that this meeting constituted consular access at the ICJ.
Denial of Consular Access
India approached the ICJ against Pakistan due to the denial of consular access to Jadhav, which according to Vienna Convention India was entitled to. Additionally, India also contested the death sentence levied on Jadhav.
International Court of Justice Ruling
In 2019, the ICJ ruled that Pakistan had violated international laws by not providing “effective review and reconsideration” of Jadhav’s conviction via its own chosen means.
Pakistan’s Response
Following the ICJ order, the Pakistani government promulgated a special ordinance allowing Jadhav to file a review. The International Court of Justice (Review and Reconsideration) Bill, 2021 was passed aiming to fulfill Pakistan’s obligation under the ICJ verdict.
Shortcomings in the Law
India has criticized the new Bill, stating it simply reiterates a 2019 ordinance without creating any framework for an effective review and reconsideration in Jadhav’s case. The law also grants extraordinary power to Pakistani municipal courts to decide whether Jadhav has been prejudiced due to failure to provide consular access. This oversteps a fundamental principle that municipal courts cannot judge if a State has fulfilled its international obligations.
Implications of ‘Effective Review and Reconsideration’ for India
The term ‘effective review and reconsideration’ extends beyond a simple ‘review’. It necessitates granting consular access and aiding Jadhav in his defense preparation. Pakistan has to disclose the charges and evidence against Jadhav, which has remained opaque thus far. It also necessitates revealing how Jadhav’s confession was obtained by the military. Essentially, it affords Jadhav the right to defend himself in whichever forum or court hears his case.
The International Court of Justice
The ICJ is the United Nations’ primary judicial body. Established in 1945 and commencing its work in 1946, it succeeded the Permanent Court of International Justice. Its role is to settle legal disputes between member countries and offer advisory opinions to authorized UN bodies and specialized agencies. The ICJ is situated in the Peace Palace in Hague, Netherlands.
The Vienna Convention
The Vienna Convention on Consular Relations is an international treaty outlining consular relations between independent states. A consul, who is distinct from a diplomat, represents a foreign state in a host country, working for his or her fellow countrymen’s interests. According to Article 36 of the Vienna Convention, foreign nationals who are arrested or detained must be given notice without delay of their right to inform their embassy or consulate.
