A dispute between India and Pakistan over the treatment of an Indian national under arrest in Pakistan was recently settled by the International Court of Justice. The International Court of Justice (ICJ) is a judicial body established by the United Nations in 1945. The judges, elected by the United Nations General Assembly and the Security Council, are charged with settling legal disputes amongst States “in accordance with international law.” Pakistan’s denial of consular access to Indian national and former Naval commander, Kulbhushan Sudhir Jadhav was considered by India to be a failure of negotiation, thus prompting the state to seek judicial settlement. Key elements of the case are contested and contradicted by Indian and Pakistani governments.
Pakistani officials claim that Jadhav was taken into custody by Pakistani forces in Balochistan near the Iranian-Pakistani border after illegally entering Pakistani territory. He was charged with carrying out acts of espionage and terrorism on behalf of the Indian government and was sentenced to execution by a military court trial. India contests Pakistan’s portrayal of the trial, arguing that Jadhav was not arrested in Balochistan but rather kidnapped in Iran and taken to Pakistan unlawfully. India also denies sending Jadhav to Pakistan to carry out acts of espionage. To support their accusations of espionage, Pakistan pointed to a video confession made by Jadhav. In the video, he supposedly confesses to acting on espionage on behalf of India’s foreign intelligence agency, “Research and Analysis Wing”, known as RAW. However, the Court admits to a lack of knowledge as to the “circumstances under which the video was recorded” while India claims the video was falsified and propagandized.
On the same day that Pakistan informed the United Nations Security Council of Jadhav’s detainment, India’s High Commission sent requests to the Pakistani Ministry of Foreign Affairs for consular access and continued to seek access, making many subsequent requests thereafter. Initially, Pakistan eventually agreed to contemplate India’s request for consular access with the stipulation that India would aid Pakistan’s criminal investigation process by providing information. India however, maintained that consular access was a precondition for further exchanges.
The ICJ’s settlement of the case rested primarily on the interpretation of consular law established by the Vienna Convention on Consular Relations. Article 36 of the Vienna Convention on Consular Relations mandates that “if he [the national of the sending State] so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner.” The Pakistani government claimed that the 2008 Bilateral Agreement on Consular Access signed with India is valid in this context, establishing that “In case of arrest, detention or sentence made on political or security grounds, each side may examine the case on its merits.”
Ultimately the ICJ ruled that Pakistan violated Article 36 of the Convention and requires that the Pakistani government “inform Mr. Kulbhushan Sudhir Jadhav without further delay of his rights and to provide Indian consular officers access to him in accordance with Article 36 of the Vienna Convention on Consular Relations” as well as “provide, by the means of its own choosing, effective review and reconsideration of the conviction and sentence of Mr. Kulbhushan Sudhir Jadhav.” The ruling established that the Vienna Convention makes no exception for agents carrying out espionage and established a precedent that the provision of consular access has few conditions if not none.
Judge Jillani, in his sole dissenting opinion, outlined the several main reasons for his opposition to the court’s ruling. He affirms Pakistan’s right to exercise discretion in determining the grounds for allowing consular access on the basis of the 2008 bilateral agreement with India by arguing that the bilateral agreement amplifies and clarifies the “scope” of the Vienna Convention, which he argues does not “extend to espionage agents”.
Both India and Pakistan have declared the ruling to be a victory. Indian Prime Minister Modi praised the ICJ verdict and expressed confidence that Jadhav “will get justice.” Pakistani Attorney General Anwar Mansoor Khan declared the verdict to be “a clear win for Pakistan” given that the court did not dismiss the results of Pakistan’s trial or order Jadhav’s release.
The contradiction of fundamentally basic facts put forward by both states remains contested, unverified, and unresolved. These missing facts, such as whether or not Jadhav was a RAW agent, the specific territory on which was taken into custody, and validity of the confession tape, having constituted key areas of disagreement in the case, pose a potential transparency problem for future disputes in which such types of facts may be decisive factors. For example, Judge Jillani argues that India’s application should have been declared inadmissible on account of India having sent Jadhav as an espionage agent constituting a violation of human rights. However, this claim remains unverified and contested by India’s government. Going forward, further evaluation and deeper investigation of factual disputes between states may be warranted.
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