Nothing More Than “Review and Reconsideration”
The International Court of Justice (ICJ), hours ago, pronounced an eagerly awaited verdict in the Jadhav Case (India versus Pakistan) dated 17.06.2019 and while the executive and certain factions of media in India and Pakistan pose it as a victory for their respective side, an objective analysis of the judgment is not out of place to actually consider the gains, if any, for either side. Hence, before delving into the obiter and the ratio of the judgment, a brief background of what India and Pakistan, respectively, prayed and argued before the ICJ is imperative.
India instituted the Jadhav Case to, inter alia, seek the release of Jadhav along with a direction to the State of Pakistan to ensure safe passage for Jadhav who had been convicted by the Military Court of Pakistan on account of irrefutable evidence strengthened by Jadhav’s confession that he had been involved in espionage and terrorist activities. India pleaded before the ICJ that Jadhav had been wrongfully convicted by the Military Court and that Jadhav’s confession had been adduced under duress. India, inter alia, argued that Pakistan violated its obligations as set out in Article 36 of the Vienna Convention on Consular Relations, 1963 (VCCR):
“(i) by not informing India, without delay, of the detention of Mr. Jadhav; (ii) by not informing Mr. Jadhav of his rights under Article 36; and (iii) by denying consular officers of India access to Mr. Jadhav, contrary to their right to visit him, to converse and correspond with him, and to arrange for his legal representation.”
(Paragraph 99 of the Judgment).
Furthermore, a perusal of the memorial submitted by India before the ICJ also revealed that, apart from the foregoing, India pressed before the ICJ, while placing reliance upon Draft Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA) that a violation of Article 36 VCCR committed by Pakistan could only be effectively addressed by way of restitution i.e. “wipe out the legal and material consequences of its wrongful act by re-establishing the situation that would exist if that act had not been committed.” It is pertinent to mention here that India demanded restitution by way of release as it believed that a relief minus annulment of the decision of the Military Court and subsequent release of Jadhav would have been inadequate. While pressing upon the foregoing, India prayed before the ICJ that it be granted the following reliefs:
“(i) Declare that the sentence of the Military Court arrived at, in brazen defiance of the Vienna Convention rights under Article 36, particularly Article 36 paragraph 1 (b), and in defiance of elementary human rights of Jadhav, which are also to be given effect as mandated under Article 14 of the 1966 International Covenant on Civil and Political Rights, is violative of international law and the provisions of the Vienna Convention;
(ii) Declare that India is entitled to restitutio in integrum;
(iii) Restrain Pakistan from giving effect to the sentence or conviction in any manner, and direct it to release the Indian National, Jadhav, forthwith, and to direct Pakistan to facilitate his safe passage to India;
(iv) In the alternative, and if this Court were to find that Jadhav is not to be released, then restrain Pakistan from giving effect to the sentence awarded by the Military Court, and direct it to take steps to annul the decision of the military court, as may be available to it under the laws in force in Pakistan, and direct a trial under the ordinary law before civilian courts, after excluding his confession that was recorded without affording consular access, in strict conformity with the provisions of the ICCPR, with full consular access and with a right to India to arrange for his legal representation.”
(Emphasis supplied; paragraph 18 of the Judgment).
Hence, India’s intent behind the institution of proceedings against Pakistan was to ensure that a person who had been involved in subversive activities against the state of Pakistan was set free by the ICJ and consequently, remove the stigma that the Republic of India had not been sponsoring terrorism and attempting to destabilize Pakistan in contravention of the Charter of the United Nations.
On the other hand, Pakistan not only presented effective rebuttals to the arguments advanced by India but, inter alia, posed certain pertinent questions:
1. Jadhav possessed two passports out of which one was fake and illegal, hence, India should have either admitted that Jadhav was not an Indian national or otherwise conceded that it had been responsible for state terrorism:
“It is a matter of considerable concern and regret that India has failed to explain how Commander Jadhav entered Pakistan in possession of an authentic Indian passport clothed with a false Muslim identity. Instead, seizing upon the fact that Commander Jadhav was using a false Muslim name, India stated “the question of authenticating a declared false document does not arise” [Volume 2/Annex 33]. This is evasive sophistry (at best) to conceal, Pakistan says, India’s wrongdoing in providing an authentic passport with a false Muslim identity.”
2. India, at best, could only be granted ‘review and reconsideration’ and it would be up to Pakistan “to choose the means through which any “review and reconsideration” of the conviction and sentence of the accused is carried out” provided that the Court is of the opinion that Jadhav be granted consular access.
Pakistan, therefore, attempted to prove before the ICJ that Jadhav was an agent of India’s premium intelligence agency. It had further been argued on behalf of Pakistan, by placing reliance upon the LaGrand and Avena cases, that acquittal and release of Jadhav could not be granted under any circumstances and it would have been up to Pakistan to ‘review and reconsider’ Jadhav’s case as per its own choosing.
ICJ, while deliberating upon the submissions made by India and Pakistan, made some acute observations. It was noted by the ICJ that the information presented before it by both parties in respect of Jadhav, including details of a passport issued by the Indian authorities under a false name as claimed by Pakistan, left no doubt that Jadhav was indeed an Indian national. In the same respect, the Court further observed that Pakistan had sufficient grounds to believe at the time of the arrest of Jadhav, on the basis of the passport recovered from him bearing a false identity, that he was an Indian national (paragraphs 56 and 122 of the Judgment).
Pakistan submitted before the ICJ that the reliefs claimed by India seeking acquittal and release of Jadhav were not tenable in law:
“Pakistan, for its part, contends that the relief sought by India (the annulment of a domestic criminal conviction, the annulment of a domestic criminal sentence, the release of a convicted prisoner) could only be granted by an appellate criminal court. According to Pakistan, granting such relief would transform the Court into a court of appeal of national criminal proceedings. It submits that the Court has repeatedly and consistently affirmed the principle that it does not have the function of a criminal appellate court and maintains that restitution to the status quo ante is not an appropriate remedy for a breach of Article 36 of the Vienna Convention, because, unlike legal assistance, consular assistance is not regarded as a predicate to a criminal proceeding.
Pakistan maintains that the appropriate remedy in this case would be, at most, effective review and reconsideration of the conviction and sentence of the accused, taking into account the potential effects of any violation of Article 36 of the Vienna Convention. It refers to the decision rendered by the Peshawar High Court in 2018, which set aside more than 70 convictions and sentences handed down by military courts. It contends that its domestic legal system provides for an established and defined process whereby the civil courts can undertake a substantive review of the decisions of military tribunals, in order to ensure procedural fairness has been afforded to the accused, and that its courts are well suited to carrying out a review and reconsideration that gives full weight to the effect of any violation of Article 36 of the Vienna Convention.”
(Paragraphs 129 and 130 of the Judgment).
In response to the foregoing submissions, ICJ held that Pakistan should allow consular access to Jadhav so he could arrange for his own legal representation, but denied the main reliefs claimed by India in its application pertaining to Jadhav’s acquittal, release and safe passage to India. ICJ noted that its jurisdiction was limited to the interpretation or application of VCCR and did not extend to India’s claims based on any other rules of international law, including ARSIWA. The ICJ, hence, rejected India’s claim that conviction and sentence of Jadhav emanated from a violation of VCCR by the withholding of consular access:
“With regard to India’s contention that it is entitled to restitutio in integrum and its request to annul the decision of the military court and to restrain Pakistan from giving effect to the sentence or conviction, and its further request to direct Pakistan to take steps to annul the decision of the military court, to release Mr. Jadhav and to facilitate his safe passage to India, the Court reiterates that it is not the conviction and sentence of Mr. Jadhav which are to be regarded as a violation of Article 36 of the Vienna Convention. The Court also recalls that “[i]t is not to be presumed . . . that partial or total annulment of conviction or sentence provides the necessary and sole remedy” in cases of violations of Article 36 of the Vienna Convention.”
(Paragraph 137 of the Judgment).
It is significant to note that the ICJ, while relying on Pakistan’s submissions that the right to a fair trial had already been guaranteed under the Constitution of Pakistan, 1973 and that the High Courts of Pakistan could also exercise effective review jurisdiction, held the following:
“The Court considers that the violation of the rights set forth in Article 36, paragraph 1, of the Vienna Convention, and its implications for the principles of a fair trial, should be fully examined and properly addressed during the review and reconsideration process.” (Paragraph 145 of the Judgment).
The ICJ, therefore, not only denied the actual reliefs claimed by India as set out herein above but, more importantly, gave weight to the submissions made by Pakistan that there was no need to set aside the judgment of the Military Court and that the High Courts of Pakistan could provide effective review jurisdiction competently to assess whether the decision given in the Jadhav case by the Military Court had been, in any way, affected by the lack of consular access. In effect, the ICJ has reposed its confidence in the judiciary of Pakistan and conceded to the submission made by Pakistan that no relief in excess of ‘review and reconsideration’ of the judgment of the Military Court could be granted in the matter.
Hence, India’s submission that the decision of the Military Court be set aside as being violative of the principles of international law has been denied and India’s attempt to seek Jadhav’s acquittal has not borne fruit. India continues to risk the execution of its operative after effective review and reconsideration by the Pakistani courts, and being seen as the only state in modern times to be sponsoring terrorism, provided that the Pakistani courts find after effective review and reconsideration that the decision of the Military Court is to be upheld.
Before parting, it is important to reiterate that the judgment is a vindication of the stance adopted by the State of Pakistan before the ICJ and can be effectively termed as a ‘victory’.
 Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, 2001, Article 35 §3.
 Paragraph 206 of the memorial filed by India.
 Paragrpah 7 (II) of the Executive Summary set out in the Pakistan’s counter memorial.
 Paragraph 449 of the Pakistan’s counter memorial.
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