Will Kulbhushan Jadhav Still be Executed, despite ICJ Ruling?

Harish-Salve
Harish Salve at ICJ defending Kulbhushan Jadhav

India has approached the International Court of Justice (ICJ) on the issue of Kulbhushan Jadhav. India has sought to ban Jadhav’s execution until the final decision at ICJ is reached. Indian citizen Jadhav has been sentenced by a Pakistani militry court to death for alleged espionage. India has taken this case to the International Court, where it pleaded for an immediate ban on Jadhav’s execution. India says that by giving capital punishment to Jadhav, Pakistan’s military court violated the international law and the Vienna Convention.

International law is different from the law of a country. Parliament makes laws in a country, which is applicable to its citizens within its territories, whereas international laws are governed by the relations between the countries, and they are accepted only with the consent of those countries. At the same time, the jurisdiction of the International Court for the dispute resolution is also dependent on the consent of the countries. The international law enacted in this case is contained in the Vienna Treaty, in which both India and Pakistan are signatories. Both countries are also parties in the ‘Optional Protocol on Compulsory Settlement of Disputes’.

Under the Vienna Treaty, India constantly tried to gain consular access to Kulbhushan Jadhav through the Indian embassy so that the status of the case can be ascertained and Mr. Jadhav could be given legal representation. However, when Pakistan’s Military court sentenced Kulbhushan Jadhav to the death penalty, India had no choice but to go to the international court.

How does ICJ Work

The working methodology of the international court of justice is simple; if there is a need for immediate intervention in any case, ICJ passes a temporary order. This temporary order, obviously, is against one party, but ICJ also ensure that the interest of the other party is also not abated until the hearing is completed. To make an immediate order, the ICJ does not need to ascertain whether the dispute comes in it’s jurisdiction or not.

Why India’s Position is Strong in ICJ?

In the case of Kulbhushan Jadhav, the above criteria’s are fulfilled. This case is ready to be heard in ICJ without any delay, because the death sentence has been announced, which can be carried out anytime by Pakistan. Of course, if Jadhav is hanged during the process, India’s interests will have direct damages. Therefore, the court can temporarily put a ban on the death sentence. The ICJ has complete jurisdiction over the case as both India and Pakistan are signatories to the Vienna Treaty and Optional Protocol.

Let’s look at two examples

The international court has already ordered temporary measures against the appeal of Germany and Mexico against the United States. In 1999, Germany reached ICJ with a similar case. Two civilians Carl and Walter LaGrand were sentenced to death in the United States. Both of them were not informed about their right to to have Consular Access, which was necessary under Article 36 of the Vienna Treaty. Germany was not even informed about the arrest of its citizens, and unfortunately Germany did not get a chance to protect their citizens. In 2003, Mexico also reached the International Court against the United States. 54 Mexican citizens were sentenced to death by different courts across the United States. Mexico had appealed to the ICJ that the US was not abiding by international legal obligations.

Then came the final ICJ Verdict

The court found that the United States did not comply with the legal obligations as per the Vienna Treaty. According to the ICJ, the United States violated the treaty on three grounds. First, the arrested people were not told about their rights under Article 36. Second, despite the violation of the Vienna Treaty, Germany was not allowed to halt the death sentence of LaGrand Brothers. Third, until the final decision, the US should not have been allowed to execute LaGrand Brothers. So the USA did not follow the temporary measures of the court.

These examples show the working process of the international court, and it is expected that the death sentence of Kulbhushan Jadhav can be halted. However, given unpredictable nature of Pakistan’s military leadership,  Kulbhushan Jadhav’s execution cannot also be ruled out.

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