Kulbhushan Jadhav verdict at The Hague today: Here's how ICJ has ruled on death penalty cases in the past

The International Court of Justice (ICJ) is set to pronounce its verdict on the Kulbhushan Jadhav case at noon local time (3.30 pm IST). This comes 10 days after India approached it demanding the immediate suspension of the death sentence given to the retired Indian Navy officer by a Pakistan military court.

In terms of precedents in the history of the ICJ, there are three previous death penalty/Vienna Convention-related cases wherein the timelines and results are instructive. It remains to be seen whether there will be any major deviation from these decisions. Here's a look at the previous cases:

April 1998: Paraguay versus the United States (Angel Francisco Breard case)

Paraguay instituted proceedings against the US on 3 April, 1998, in a dispute regarding alleged violations of the Vienna Convention on Consular Relations. It argued that Breard was arrested, tried, convicted and sentenced to death without the state of Virginia advising him of his right to assistance by the consular officers of Paraguay, as required by the Vienna Convention.

Paraguay asked the court to adjudge and declare that it is entitled to restitution in integrum, that is, the re-establishment of the situation that existed before the US failed to provide the required notification. In view of the urgency of the case, Paraguay also requested the court to indicate provisional measures to the effect that the US should refrain from executing Breard before the court could consider Paraguay's claims. This provisional measures application was made the same day.

In that case, the vice-president of the court sent Article 74 letters to both parties — as in Jadhav's case. To clarify, this is not an order.

The hearing was on 7 April and the decision was delivered on 9 April.

File image of the International Court of Justice. The official website of the United Nations

File image of the International Court of Justice. The official website of the United Nations

In the reasoning leading to its decision, the court found that the execution of Breard "would render impossible the ordering by the court of the relief that Paraguay seeks and thus cause irreparable harm to the rights it claims". The court pointed out that the issues before it were not on the death penalty generally and its function was "to resolve international legal disputes between States… and not to act as a court of criminal appeal".

The court found that a dispute existed prima facie between the parties regarding the Vienna Convention and that it had jurisdiction prima facie to examine it, as both parties were party to the Vienna Convention and its Optional Protocol.

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.

March 1999: Germany versus United States (LaGrand case)

Germany instituted proceedings against the US on 2 March, 1999, alleging violations of the Vienna Convention with respect to two of their citizens (Karl and Walter LaGrand). Karl was executed before the case was brought in spite of appeals for clemency and numerous diplomatic interventions at the highest level by the German government. Walter was to be executed for the same crime (murder) the following day.

At a meeting with the acting president of the court, Germany emphasised the extreme urgency of the situation and asked the court to indicate measures without a hearing. The US argued inter alia that the request for provisional measures was made at a very late date and it strongly objected to any procedure without a hearing.

Germany argued on the basis of violations of the Vienna Convention (brothers were tried and sentenced to death without being advised of their rights to consular assistance). It also argued that "the failure to provide the required notification precluded it from protecting its nationals' interest in the US at both the trial and the appeal level in the state courts".

Germany asked the court to adjudge and declare inter alia that the US had violated its international legal obligations under the Vienna Convention; that the criminal liability imposed on the brothers in violation of international legal obligations was void; that the US should provide reparation in the form of compensation and satisfaction for the execution of Karl, and that it should restore the status quo ante in the case of his brother Walter, that is to re-establish the situation that existed before the detention of, proceedings against, conviction and sentencing of that German national. Germany also requested the court to declare that the US should provide Germany with a guarantee of the non-repetition of the illegal acts.

The court rendered its decision the following day — 3 March. At the outset, the court established that a dispute existed prima facie between the parties as to the application of the Vienna Convention and that it had jurisdiction prima facie to examine it.  It called on the US to "take all measures at its disposal" to ensure that Walter 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.

In its reasoning, it found that the execution of Walter "would cause irreparable harm to the rights claimed by Germany". It stated that "the international responsibility of a State is engaged by the action of the competent organs and authorities acting in that State, whatever they may be", and that consequently "the Governor of Arizona is under the obligation to act in conformity with the international undertakings of the United States". The court repeated its views on the death penalty as above.

This was the first case in which the court indicated provisional measures without any hearing. This is provided for by the Rules of the Court (Article 75, paragraph 1).

Walter was executed on 3 March, 1999, after the Court had issued the provisional measures order.

January 2003: Mexico versus United States (Avena case)

Mexico filed its provisional measures request on 9 January, 2003, along with its application initiating proceedings against the US in a dispute concerning alleged violations of the same Vienna Convention with respect to 54 Mexican nationals on death row in various US states. They requested the court inter alia that pending final judgment in the case, the US should take all measures necessary to ensure that no Mexican national be executed and that no execution dates be set for any Mexican national; that the US ensure that no action is taken that might prejudice the rights of Mexico or its nationals with respect to any decision this court may render on the merits of the case.

The hearing was held on 21 January, 2003, with the judgment pronounced on 5 February, 2003.

The court began by considering whether it had jurisdiction prima facie (at first sight) to hear the case, a prerequisite for the indication of provisional measures. It noted that the parties were both parties to the Vienna Convention on Consular Relations and to its Optional Protocol, and accordingly found that it had jurisdiction prima facie to hear the case.

Turning to the arguments of the parties, the court found that a dispute exists between them regarding the remedies to be provided in cases of breaches by the US of its obligations under Article 36, paragraph 1, of the Vienna Convention. The court concluded that it must address the issue of whether, by indicating provisional measures, it should preserve any rights which may subsequently be adjudged by it to belong to the applicant or to the respondent, without being obliged at this stage of the proceedings to rule on those rights. It added inter alia that "the function of the court is to resolve international legal disputes between States, inter alia when they arise out of the interpretation or application of international conventions; and not to act as a court of criminal appeal" regarding death penalty issues; and that it "may indicate provisional measures without infringing these principles".

The court recalled that provisional measures are only justified if there is urgency, "in the sense that action prejudicial to the rights of either party is likely to be taken before a final decision is given".

The court stressed the fact that there were no execution dates fixed in any of the cases before it was "not per se a circumstance that should preclude from indicating provisional measures". It noted that that on the basis of the information before it, three Mexican nationals, were at risk of execution in the coming months, or possibly even weeks, and that "their execution would cause irreparable prejudice to any rights that may subsequently be adjudged by the court to belong to Mexico"; the court accordingly concluded that "the circumstances require that it indicate provisional measures to preserve those rights".

As for the other individuals listed in Mexico's application, the Court observed that "although currently on death row, [they] are not in the same position as the three persons identified" earlier and that it may, "if appropriate, indicate provisional measures… in respect of those individuals before it renders final judgment" in the case. In its order, the court indicated to the US that it must "take all measures necessary" to ensure that three identified Mexican nationals are not executed pending a final judgment of the court. It directed the US to inform it of all measures taken in implementation of the order.

With inputs from PTI


Updated Date: May 18, 2017 08:13 AM

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