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Kulbhushan Jadhav Case: How ICJ Has Decided Death Penalty Appeals Against US


Updated: May 18, 2017, 2:36 PM IST
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Kulbhushan Jadhav Case: How ICJ Has Decided Death Penalty Appeals Against US
A file photo of judges presiding over a case at the ICJ. (Photo: Reuters)

New Delhi: The International Court of Justice (ICJ) will on Thursday afternoon rule on India’s appeal against the death penalty handed to former naval officer Kulbhushan Jadhav by a Pakistan military court.

During its submission to the ICJ on May 15 at a public hearing, India had demanded the immediate annulment of Jadhav's death sentence, expressing fears that Pakistan could execute him even before the hearing at the ICJ was over.

The ICJ has in the past decided such appeals against the United States when Paraguay, Germany and Mexico approached The Hague against death penalties awarded to their respective nations. In two of these cases, however, the US went ahead with the executions.

Paraguay vs United States
In April 1998, Paraguay had dragged United States to the ICJ alleging that the state of Virginia had violated Vienna Convention by failing to inform Angel Francisco Breard, a Paraguayan, of his right to contact the Paraguayan consulate for assistance after his arrest.

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A report in Firstpost, said The Hague had called on the US to "take all measures at its disposal" to prevent the execution of Breard, pending a final decision in the proceedings instituted by Paraguay. However, Breard was executed on April 14, five days after the verdict. Paraguay later withdrew the case.

Germany vs United States
German national Walter LaGrand and his brother Karl were arrested in US state of Arizona in 1982 on suspicion of armed robbery and murder. In 1999, Germany instituted proceedings against the US for allegedly failing to inform the duo of their right to consular access, guaranteed by the Vienna Convention. The appeal was filed on the eve of the brothers’ execution. However, Karl was executed before the case started and Germany demanded that the US compensate his family and halt Walter’s execution till proceedings were pending. In its verdict the following day, the ICJ asked the US to ensure Walter was not executed during proceedings.

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However, the US executed Walter on the very same day. Germany then modified its complaint, charging the US with violating international law by failing to implement the provisional measures. The US argued that the Vienna Convention did not grant rights to individuals, only to states. The ICJ ruled in favour of Germany on June 27, 2001.

Mexico vs United States
In January 2003, Mexico took the US to the ICJ over a dispute concerning alleged violations of the Vienna Convention with respect to 54 Mexican nationals who were sentenced to death in the US. They requested the court to ensure that the US should not execute or set execution dates for any Mexican national before the court passed judgment.

After establishing that it had jurisdiction to hear the case, the ICJ ruled that its jurisdiction lay only in establishing whether the US breached its obligations as listed under Article 36, paragraph 1, of the Vienna Convention and not functioning as “a court of criminal appeal”.

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The court, however, stressed that no execution dates should be fixed in any of the cases before it had ruled. It noted that three Mexican nationals were at risk of execution in the coming months, or possibly even weeks, and that "their execution would cause irreparable prejudice to any rights that may subsequently be adjudged by the court to belong to Mexico".

After deliberating for months, the court concluded that in 51 of the cases, the US had, in fact, breached their obligation by not informing the appropriate Mexican consular post without delay about the judicial process. By not doing so, the US had also deprived Mexico of the right to provide assistance to its nationals. The US was ordered to provide review and reconsideration of the judgments regarding the Mexican nationals and implement specific measures to ensure non-repetition.

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