The International Court of Justice (the ICJ or Court) has issued a unanimous Order that Pakistan take all measures at its disposal to ensure that an Indian national, Kulbhushan Jadhav, is not executed pending a final decision in the proceedings.
On 10 April 2017, Mr Jadhav, a retired naval officer, was sentenced to death by a Pakistani military court on charges of “espionage, sabotage, and terrorism”. He had been in custody in Pakistan since 3 March 2016. During his detention, India repeatedly requested consular access to Mr Jadhav but Pakistan predicated such consular access on India’s assistance with the investigation into his actions.
The ICJ accepted India’s argument that India and Pakistan have a dispute concerning India’s consular assistance to Mr Jadhav under Article 36(1) of the Vienna Convention on Consular Relations (Vienna Convention), which guarantees the right of a State to communicate with, and have access to, its nationals in the custody of another State, as well as the right of those nationals to be informed of their rights.
The ICJ determined that it did not yet need to reach a decision on Pakistan’s argument that a separate 2008 Agreement on Consular Access between India and Pakistan limits and qualifies (or even supplements) the Vienna Convention. It also determined that it did not need to provide a definitive answer at this stage of proceedings as to whether Article 36 of the Vienna Convention applies to persons suspected of espionage or terrorism.
Finally, the Court rejected Pakistan’s claims that there was no urgency because Mr Jadhav could appeal his conviction and sentence as well as apply for clemency, stating that the mere fact that Mr Jadhav is under a death sentence and might be executed is sufficient to demonstrate the possibility of irreparable prejudice and urgency.
The Court ordered that Pakistan take all measures at its disposal to ensure that Mr Jadhav is not executed pending its final decision in the proceedings. It also ordered Pakistan to inform the Court of all measures taken to implement the Order.
For the Court’s Order, click here.