Not the final word from Islamabad and Delhi

The publication of the International Court of Justice’s award in the Kulbhushan Jadhav case on July 17, 2019 was heralded by both India and Pakistan as a victory to their side; the truth probably lies somewhere in between. The award vindicated India’s claims on merit, concurring that Pakistan was guilty of multiple violations of the Vienna Convention on Consular Relations (VCCR): by failing to inform Mr. Jadhav of his rights under Article 36 of the treaty, by neglecting to notify India of his arrest without delay, and by denying him consular access. Nonetheless, the ICJ rejected India’s claims on two crucial grounds: fair trial rights and remedy.

The bedrock

Much of India’s case hinged on Article 14 of the International Covenant on Civil and Political Rights (ICCPR), which guarantees individuals the right to a fair trial. By convicting Mr. Jadhav through a military tribunal, using video evidence of a confession obtained under coercive circumstances, and by denying Indian consular officers the opportunity to arrange for his legal representation, India argued that the Pakistani state had employed an unjust procedure in his trial. Predictably, however, the ICJ chose to hinge its jurisdiction in this case on Article 1 of the Optional Protocol to the VCCR, which grants the ICJ compulsory jurisdiction only over disputes arising out of the application or interpretation of the Consular Convention. The unfortunate consequence of this choice was that disputes pertaining to violations of other international law norms, such as the human rights obligations under the ICCPR, were ruled to be outside the remit of the ICJ’s jurisdiction. India’s attempts to have the ICCPR piggyback on the VCCR, by claiming that the latter was also, in essence, a human rights treaty and by asserting that the inclusion of the ICCPR was necessary for an effective remedy, were rejected out of hand.

Issue of remedies

The more troubling aspect of the ICJ’s award, from the Indian perspective, concerns the ICJ’s decision on remedies. It denied India’s prayer to set aside Mr. Jadhav’s conviction by the military tribunal, and for his release. Instead, it ruled that the appropriate remedy would be for Pakistan to carry out an “effective review and reconsideration” of the tribunal’s conviction and sentence. What this means, in simpler terms, is that Pakistan will have to provide Mr. Jadhav a judicial mechanism to assess the prejudice caused to him by a denial of consular access, and to reconsider (and possibly alter) his sentence and conviction based on its findings.

While not entirely unforeseeable, this decision is worrying for several reasons. First, this remedy carries a fraught history: it has only ever been used before by the ICJ in LaGrand and Avena, which involved an identical denial of consular access to nationals of Germany and Mexico, respectively, by the United States. Crucially, the unsatisfactory implementation of this remedy and the weak review mechanisms provided by the U.S. in response to the ICJ’s decision in both cases have been widely noted in academic literature. Second, the remedy does little to account for the violation of Mr. Jadhav’s fair trial rights. This means that the review procedure Pakistan opts for might well be one carried out by a military tribunal, and also one that continues to rely on the allegedly-forced video confession. But perhaps the most troubling aspect of this remedy, and the one that makes it most ripe for further litigation, is that it is intrinsically ambiguous.

Apart from asserting that the review and reconsideration of Mr. Jadhav’s conviction “must be effective”, the ICJ has offered little guidance on how it must be carried out. It is known, from the Avena judgment, that providing Mr. Jadhav access to a clemency petition (as Pakistani law does) is an insufficient form of review, since it does not entail the use of a judicial mechanism. The Pakistani Supreme Court, in Said Zaman Khan v. Federation of Pakistan, ruled that the state’s civilian courts could only review the decision of a military tribunal on the narrow grounds of coram non judice (i.e., an absence of jurisdiction) or mala fides (bad faith). It is unlikely that Mr. Jadhav’s denial of VCCR rights falls under either category. However, the decision in Said Zaman Khan is under review, following the Peshawar High Court’s attempts to widen it in 2018, in the Abdur Rashid case.

Heading back to The Hague?

The outcome of the latter case may well portend the use of a civilian review mechanism for Mr. Jadhav’s case. Even if the Rashid case fails, Pakistan could potentially be required to alter their laws to provide a more effective review mechanism for decisions of military tribunals: a fact alluded to by the ICJ, which stated that “Pakistan shall take all measures to provide for effective review and reconsideration, including, if necessary, by enacting appropriate legislation” [emphasis added].

Ultimately, though neither state will admit it, the Jadhav decision will be a bitter pill to swallow for both India and Pakistan. For Pakistan, making a significant alteration to its legal system would amount to an admission that the ICJ’s judgement was a public admonition of Pakistan’s judicial review mechanism: a prospect Pakistan is unlikely to welcome. For India, any review mechanism that fails to acquit Mr. Jadhav will be seen as procedurally unsound, and an attempt by Pakistan to further shirk its international legal responsibilities. It does not help that both countries have dug themselves into holes by thoroughly politicising the ICJ’s verdict.

The likely consequence is that, irrespective of what review mechanism Pakistan implements, both nations will be soon be back, knocking on the door of the International Court: the ICJ’s Statute allows parties to approach the court again, asking it to interpret its judgment. Signs of this outcome can already be witnessed, with Pakistan refusing India unimpeded access to Mr. Jadhav through a note verbale issued mere weeks after the ICJ’s decision. India’s counsel, Harish Salve, has publicly stated that the state will not hesitate to return to the ICJ if Pakistan’s conduct proves to be unsatisfactory. It is increasingly likely that we haven’t heard the last of the Jadhav litigation. For now, however, the ball remains in Pakistan’s court.

Vanshaj Ravi Jain is a DPhil candidate and Rhodes Scholar at the University of Oxford

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Printable version | Oct 15, 2021 8:43:18 PM |

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