Kulbhushan Jadhav case at ICJ highlights: Court tells Pakistan to put execution on hold; Modi expresses satisfaction

The ICJ order essential step in saving Jadhav’s life: Gopal Baglay, MEA spokesperson

The Ministry of External Affairs expressed its relief on the interim order that the International Court of Justice passed on Thursday. Gopal Baglay, spokesperson, MEA said, “The ICJ at Hague a unanimous, favourable and ambiguous order on India’s request for provisional measures on the Kulbhushan Jadhav case. It has told Pakistan to ensure Jadhav is not executed until the court completes the hearing,”  

“This is a matter of great relief and I am sure every Indian is equally relieved. Kulbhushan Jadhav can not be executed by Pakistan. The MEA had assured the Parliament that the govt will do everything to ensure Jadhav is not executed in Pakistan. And this interim order ensures that commitment,” he added.

“The provisional release which has been guaranteed an essential first step in saving Jadhav’s life and the rights that Pakistan violated in the process. We welcome the decision.” Gopal said.

Commenting on Pakistan’s reaction to the case where it downplayed the interim order, Baglay said that reiterated that the order is “binding” on Pakistan.

Kulbhushan Jadhav’s friends distribute celebrate after ICJ interim order | ANI

Mumbai: #KulbhushanJadhav's friends distribute sweets and burst crackers after ICJ stayed Jadhav's execution. pic.twitter.com/E7U5gYvicD

— ANI (@ANI) May 18, 2017

Kulbhushan Jadhav case a turning point in India’s foreign policy

India’s decision to move International Court of Justice on Kulbhushan Jadhav drew many sceptics to conclude that this move turns a bilateral issue into a multilateral one and Pakistan will seize this chance to highlight the trouble in Kashmir. 

It was argued that India has nothing to gain and everything to lose from highlighting the Jadhav case because it opens us to international scrutiny. India has long remained a victim of defeatism on foreign policy and it required a bold step from the Narendra Modi government to remove the mental cobwebs.

The interim ICJ order in India’s favour should instil confidence in us. That India isn’t a rogue state like Pakistan and a rule-based state that respects international laws are more likely to benefit it from moving disputes from a bilateral to multilateral framework especially when it concerns irresponsible, revisionist states like Pakistan. 

The move to take the Jadhav case to the ICJ, therefore, may be read as a turning point in India’s foreign policy.

Pakistan unhappy with ICJ order, Nafees Zakaria says ‘India hiding its real face’

akistan on Thursday accused India of “hiding its real face” in the Kulbhushan Jadhav case. Addressing a gathering of mediapesons, Zakria accused India of “trying to defend a person whose actions have led to the killing of Pakistani citizens”. 

“India desperately tried to divert the world attention by presenting Kulbhushan Jadhav’s case from humanitarian angle,” Zakaria said.

The Pakistan Foreign Office spokesperson also accused India of violating several sections in the bilateral agreement signed between the two countries.

It was evident from Zakaria’s statements that Pakistan is not happy with the the interim order. Zakaria also said that Pakistan will present solid evidence against Jadhav in the international court. 

India desperately tried to divert the world attention by presenting #Kulbhushan's case from humanitarian angle: Pak Foreign Ministry Spox

— ANI (@ANI) May 18, 2017

ICJ’s order gives people of India a deep sense of satisfaction and relief: Rajnath Singh | ANI

ICJ's decision to stay the execution of #KulbhushanJadhav gives people of India a deep sense of satisfaction and relief: HM Rajnath Singh pic.twitter.com/OT2UGMj1qE

— ANI (@ANI) May 18, 2017

Celebrations outside Kulbhushan Jadhav’s residence | ANI

Maharashtra: Celebrations outside residence of #KulbhushanJadhav in Mumbai's Powai after #ICJ stays his death sentence until further notice pic.twitter.com/sba6af48vp

— ANI (@ANI) May 18, 2017

Narendra Modi expresses satisfaction at ICJ judgement in Kulbhushan Jadhav case

New Delhi: Prime Minister Narendra Modi on Thursday expressed satisfaction at the order of the International Court of Justice (ICJ) which stayed the execution of Indian national Kulbhushan Jadhav who is on death row in Pakistan.

He spoke to External Affairs Minister Sushma Swaraj to thank her and appreciated the efforts of advocate Harish Salve who represented India in the case, official sources said.

The Prime Minister’s reaction came after the 11-judge bench of the ICJ unanimously stayed the execution of Jadhav who has been sentenced to death by a Pakistan military court on charges of espionage and subversive activities.

— PTI

Celebrations have begun outside Kulbhushan Jadhav’s residence​ | ANI

Celebrations has begun outside #KulbhushanJadhav's house in Powai after #JadhavVerdict; People chanting Bharat Mata Ki Jai pic.twitter.com/4bOYSYOY5N

— News18 (@CNNnews18) May 18, 2017

Sushma Swaraj thanks Harish Salve, MEA team

Minister of External Affairs, Sushma Swaraj on Thursday thanked her staff and the Indian lawyer Harish Salve for the combine effort to present Kulbhushan Jadhav’s case at the ICJ and for the interim order that told Pakistan to put on hold Jadhav’s execution.

" We are grateful to Mr.Harish Salve for presenting India’s case so effectively before ICJ," Swaraj tweeted on Thursday, adding, “I compliment my team of officers in the MEA for their tireless efforts and hard work.”

Swaraj also said that under the leadership of Prime Minister Narendra Modi, India will leave no stone unturned to save  Kulbhushan Jadhav.

“The ICJ order,” she also said, “has come as a great relief to the familly of Kulbhushan Jadhav and people of India.”

Here messages also found a resonance with Prime Minister Narendra Modi who retweeted them via his official account.

GoI must use the ICJ decision as a trigger to bring Kulbhushan Jadhav back: Manish Tewari | ANI

GoI must use the ICJ decision as a trigger to bring #KulbhushanJadhav back. ICJ has given a favorable decision: Manish Tewari, Congress pic.twitter.com/6ZL7p10LN3

— ANI (@ANI) May 18, 2017

Key observations made by ICJ in the interim order on the Kulbhushan Jadhav case

The ICJ gave an interim order in the Kulbhushan Jadhav case on Thursday in India’s favour, thus telling Pakistan to put on hold the planned execution of Jadhav. Here are some key points from the interim order.

I. On Jurisdiction of the Court

“The ICJ notes that the acts alleged by India, i.e., the alleged failure by Pakistan to provide the requisite consular notifications with regard to the arrest and detention of Jadhav, as well as the alleged failure to allow communication and provide access to him, appear to be capable of falling within the scope of the Convention.

“In the view of the court, this is sufficient to establish that it has prima facie jurisdiction under Article I of – 2 – the Optional Protocol. The court further observes that the existence of a 2008 bilateral Agreement between the Parties on consular relations does not change its conclusion on jurisdiction.
 
II. On consular access
It observes that the rights to consular notification and access between a State and its nationals, as well as the obligations of the detaining State to inform the person concerned without delay of his rights with regard to consular assistance and to allow their exercise, are recognized in Article 36, paragraph 1, of the Vienna Convention, and that India has alleged violations of this provision. In the view of the court, therefore, it appears that the rights alleged by India are plausible
 
III. On Validity of measures India sought

“The court then focuses on the issue of the link between the rights claimed and the provisional measures requested. It considers that the measures requested are aimed at ensuring that the rights contained in Article 36, paragraph 1, of the Vienna Convention, are preserved. Therefore, a link exists between the rights claimed by India and the provisional measures being sought.
 
IV. On Jadhav’s executive risk

The court then examines whether there is a risk of irreparable prejudice and urgency. It considers that the mere fact that Jadhav is under a death sentence and might, therefore, be executed is sufficient to demonstrate the existence of a risk of irreparable prejudice to the rights claimed by India. The court further observes that Pakistan has indicated that any execution of Jadhav would probably not take place before the month of August 2017. This means that there is a risk that an execution could take place at any moment thereafter before the court has given its final decision in the case. The court also notes that Pakistan has given no assurance that Jadhav will not be executed before the court has rendered its final decision. In those circumstances, the court is satisfied that there is urgency in the present case.

Key dates in the Kulbhushan Jadhav case

• 10 April 2017: Kulbhushan Jadhav was served the death sentence by Pakistani military court
• 18 May 2017: ICJ tells Pakistan to put his execution on hold pending its final order.
• 19 May 2017: Jadhav has the right to appeal within 40 days to an appellate court by 19 May. Which means the ICJ interim order came right on time for Jadhav in case he did not or could not file his first appeal to the appellate court. ICJ says that it has no knowledge whether Jadhav has filed his appeal.
• 18 July 2017: Assuming the appellate court in Pakistan denies the appeal on 19 May, he may lodge a mercy petition to the (army chief of Pakistan) within 60 days of the decision by the appellate court.
• 16 October 2017: Assuming mercy petition is denied on 19 July, Jadhav may lodge a mercy petition to the President of Pakistan within 90 days after the decision of (the army chief) on the mercy petition

Though binding, there were instances when ICJ interim orders failed to save an accused

Former Indian naval officer Kulbhushan Yadav is still not safe from the gallows as there are instances where an interim order by the International Court of justice has failed to save an accused from being executed. Two such examples are:

In the Breard case, the court called on the US to “take all measures at its disposal” to prevent the execution of Breard, pending a final decision of the court in the proceedings instituted by Paraguay. The court also requested the US to inform it of all the measures taken in implementation of its order. However, Breard was executed on schedule on 14 April. Paraguay later withdrew the case.

In the LaGrand case, the court called on the US to “take all measures at its disposal” to ensure that Walter LaGrand (on death row at the time) was not executed pending a final decision of the court in the proceedings instituted by Germany and inform it of all the measures taken in implementation of the order. Nevertheless, Walter was executed shortly after the Court had issued the provisional measures order.

Read more about here.

Here’s why it will be difficult for Pakistan to flout ICJ and execute Kulbhushan Jadhav

Apart from the fact that the ICJ on Thursday made it binding on Pakistan to abide by the interim order and stay the execution of Kulbhushan Jadhav till the final verdict is delivered on this case — which may extend well beyond the August 2017 deadline proposed by Pakistan, there are other pressing reasons why Pakistan will find it very difficult now to disregard all orders and send Jadhav to the gallows.

Through the ICJ appeal and verdict in its favour, India has managed to bring an international spotlight on the Jadhav case which will prevent Pakistan from carrying out any execution in darkness or under the cloak of silence. 

The sequence of events, following India’s application seeking provisional measures to stop the Indian national from being sent to the gallows before a full hearing at the ICJ, will force the hand of Pakistan in following international laws and guidelines which it may otherwise have flouted with impunity. It may still do so but any brazening out on the ICJ interim order would carry a steep diplomatic price.

ICJ interim order is a victory for crores of Indians: Sarabjit’s sister Dalbir Kaur

Victory of crores of Indians & the truth. I want to congratulate Govt: Dalbir Kaur (Sarabjit's sister) on #ICJ verdict on #KulbhushanJadhav pic.twitter.com/DUFEr6G2mo

— ANI (@ANI) May 18, 2017

The ICJ order is a great relief to the family of Kulbhushan Jadhav: Sushma Swaraj | ANI

The ICJ order has come as a great relief to the family of Kulbhushan Jadhav and people of India: MEA Sushma Swaraj #KulbhushanJadhav pic.twitter.com/0qSMM1zSEr

— ANI (@ANI) May 18, 2017

ICJ overturns Pakistan’s request, hands interim order in India’s favour

The ICJ court on Thursday threw out Pakistan’s arguments and accepted India’s argument thus established the primacy of 1963 Vienna Convention over the 2008 Bilateral Agreement between India and Paksitan.

The order has put Kulbhushan Jadhav’s execution on hold till the international court completes its full hearing and gives a final judgment on the case. While accepting India’s request for “provisional measures”, the court ordered Pakistan to ensure that:

1. Jadhav is not executed after 150 days (which is August 2017) until at least the ICJ delivers its final judgment. 
2. Pakistan must inform the court of all steps taken in this regard
3. Until ICJ has arrived at a final verdict, Pakistan must keep the court seized of all measures.

The unanimous verdict, said ICJ president Ronny Abraham, shall be binding on Pakistan and if the country is found guilty of violating it, it shall draw international censure.

Entire world has reacted in one voice: AG Mukul Rohatgi | CNN-News18

It is obvious that the entire world has reacted in one voice; Pakistan can keep saying what it wants: Mukul Rohatgi on #JadhavVerdict pic.twitter.com/5F1WgSU5Oc

— News18 (@CNNnews18) May 18, 2017

Entire world has reacted in one voice: AG Mukul Rohatgi | CNN-News18

It is obvious that the entire world has reacted in one voice; Pakistan can keep saying what it wants: Mukul Rohatgi on #JadhavVerdict pic.twitter.com/5F1WgSU5Oc

— News18 (@CNNnews18) May 18, 2017

Pakistan is completely blown by this decision: AG Mukul Rohatgi​ | ANI

The entire thing was a charade,Pakistan completely blown by this decision.The decision is certainly binding for both states:AG Mukul Rohatgi pic.twitter.com/dJKFX66d00

— ANI (@ANI) May 18, 2017

Indian stand is victorious, congratulate all concerned persons: AG Mukul Rohatgi

“It’s a convincing win for India. The order needs to be studied, we need to see Pakistan’s reaction. I hope consular access should be given. Because that was one of the main points. I hope Pakistan sees sense, behave like a responsible nation. Not just consular access even the family should be given access to Kulbhushan Jadhav,” Attorney General Mukul Rohatgi told CNN-News18.

“The stand of the Indian government has been vindicated, although it’s provisional,” he added.

Indian stand is victorious, congratulate all concerned persons,especially the External Affairs Ministry: AG Mukul Rohatgi #KulbhushanJadhav pic.twitter.com/cqdFh2UmJR

— ANI (@ANI) May 18, 2017

Huge victory or India

ICJ rules that there is urgency in Kulbhushan Jadhav case, rejects Pakistan’s argument that there is no urgency.

Judge Ronny Abraham asks Pakistan not to execute Jadhav, asks it to keep the court informed of all measures taken and orders Pakistan to keep the court seized of all steps. This was a unanimous verdict.

Pakistan is required to tell the court what steps it has taken in compliance

It is important to note that the ICJ has not examined India’s claim on merits or it’s claim on final relief.

The Court has said that there is a case under the Vienna Convention and since Pakistan cannot guarantee that he won’t be executed till the proceedings are over, it is important to ask Pakistan to not execute Jadhav.

Pakistan is required to tell the court what steps it has taken in compliance. It is also important to note here that our High Commissioner in Islamabad still doesn’t have access to Jhadav, as we haven’t asked the Court for that in our Request For Provisional Measures.

What Judge Abraham has said so far

– ICJ accepts india’s demand for consular access for Jadhav
– It appears that the rights invoked by India in the present case are plausible, says Judge Abraham
– All parties under Vienna Convention have rights to provide consular assistance to their nationals, says ICJ
– ICJ rules it has prima facie jurisdiction to take up the case of Jadhav

Setback for Pakistan

ICJ rejects Pakistan’s argument that it has no jurisdiction to rule in Jadhav case. Reserves the right to adjudicate on interpretation of  Article 36 of Vienna Convention under Article 1 of ICJ statute. This means that court judgement is favourable to India.

ICJ has jurisdiction because of Vienna Convention: Ronny Abraham

Judge Ronny Abraham is reading out the verdict in Kulbhushan Jadhav case. The 11-judge bench will pronounce the verdict shortly. Court has jurisdiction in the case because of Vienna Convention, Abraham noted. The judge dismisses Pakistan reservations on this issue.

Friends confident of positive verdict from ICJ

Kulbhushan Jadhav’s childhood friend Arvind Singh said he was hopeful that the ICJ would give a verdict in India’s favour. 

“We all are praying that he is delivered justice. Almost everybody here is praying for him. We have been campaigning on various fronts for his safe return. We are very hopeful that the verdict is going to be in our favour. The way Salve ji has put his point, we are very hopeful,” he told ANI.

‘ICJ has no jurisdiction over Jadhav’s case’

International Court of Justice has no jurisdiction to hear case of Indian RAW agent as it pertains to the security of Pakistan, says Pakistan Foreign Office spokesperson Nafees Zakaria

Watch: ICJ president Ronny Abraham begins reading judgment

President of the Court Ronny Abraham starts recapping the Kulbhushan Jadhav case.

How will ICJ word the provisional measures?

In the past, cases for a breach of Article 36 have all been brought against the United States and the US has generally refused to act on provisional measures ordered by the Court. Though the ICJ does often grant provisional measures, it will be interesting to see how these provisional measures are worded and on what basis they are granted.

When President of the Court Ronny Abraham sits down to read the ICJ’s decision at the Hague-based Peace Palace on Thursday, he will essentially rule on whether prima facie India has a case at all before the court. In ICJ’s words, according to the media statement uploaded on its website it is going to pronounce its “Order on the request for the indication of provisional measures made by India in the Jadhav Case”.

It is to be noted that at no stage of the hearing did Pakistan give any assurance that the 150-day deadline is sacrosanct. This is expected to strengthen India’s case and the court’s limited verdict today. Read the full report here

A fundamental reason why India will lose this case

Monday’s hearing before the International Court of Justice at the Hague may appear to be a victory for India in terms of political points scored back home, but there were some key legal issues that Pakistan did point out that require our consideration.

The legal issues stem from the fact that there was a 2008 bilateral agreement on consular access. An agreement that India sought not to rely on at the Hague on Monday and merely restricted itself to the Vienna Convention on Consular Relations. In doing so, India made the point that the agreement had not been registered with the United Nations and therefore, India would have to restrict the argument to the Vienna Convention on Consular Relations alone.

By refusing to acknowledge the 2008 Agreement, India could have well just terminated that agreement. The agreement is critical for the fate of many Indian fishermen who end up straying into Pakistani waters year after year as it called for the exchange of prisoner lists and consular access. **Read the full report here**

Even favourable ruling by ICJ today may not save Kulbhushan Jadhav: SC lawyers

Even if the provisional measures of the International Court of Justice (ICJ) are in India’s favour on Thursday, Pakistan could still go ahead with the execution of Kulbhushan Jadhav, wrote Supreme Court lawyers Sanjay Hegde and Pranjal Kishore in this Business Standard article. 

Hegde and Kishore argued that the ICJ proceedings are a legal forum for declarations of legitimacy, adding that international law is still largely “a law without sanctions”. In fact, according to them, an order on provisional measures will only be the beginning of a longer journey which will entail long drawn proceedings on the merits of the case.

Quick verdict hints that India’s chances at the ICJ are positive: But will Pakistan comply?

India’s argument, put forward by senior counsel Harish Salve last Monday, was that the State of Pakistan appears to be in collusion and there can be no real relief possible for Jadhav. In fact, India fears that the execution might take place before the trial is over.

Going by the way the ICJ has, within 48 hours of the oral hearing, decided to pronounce its verdict, it is very likely that the court will accede to India’s request for “provisional measures”. This should, in the near term, appear as relief to India because Pakistan will find it difficult to send Jadhav to the gallows before a full trial at the ICJ is conducted.

Jadhav’s arrest and conviction created diplomatic maelstorm

Asserting that Jadhav’s execution was not imminent, Pakistan said he had 150 days to plead clemency. However, the ICJ denied permission to Pakistan to play the purported “confessional” video of Jadhav at the public hearing.

Jadhav’s arrest and conviction created a diplomatic maelstrom between the two countries, with India requesting consular access to the imprisoned man 16 times, only to be repeatedly turned down by Pakistan.

Jadhav was awarded the death sentence by a Pakistani military court last month, a year after he was arrested on charges of espionage and subversive activities. While India stated that Jadhav was kidnapped from Iran where he was involved in business activities after retiring from the Indian Navy, Pakistan claims to have arrested Jadhav from its restive Balochistan province.