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ICJ Stays Jadhav's Execution, Supports India's Demand For Consular Access

Former Indian Navy officer Kulbhushan Jadhav is on death row in Pakistan. (Network18 Creatives)

Former Indian Navy officer Kulbhushan Jadhav is on death row in Pakistan. (Network18 Creatives)

The International Court of Justice on Thursday stayed Kulbhushan Yadav’s execution till proceedings are on in the case.

New Delhi: India pulled off a legal coup on Thursday as the International Court of Justice stayed the execution of Kulbhushan Jadhav – the former Indian Navy officer that Pakistan alleges to be a spy – and accepted New Delhi's demand that it be given consular access to Jadhav who is currently lodged in a Pakistani jail.

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Instructing Pakistan to "take all measures at its disposal" to make sure that "Jadhav is not prosecuted", the ICJ ruled in favour of India's plea and said “no execution of Jadhav should be allowed until the court disposes of the case”.

Reading out the verdict, the ICJ court dismissed Pakistan's reservations and held that it had jurisdiction in the case because of Vienna Convention. "Prima facie, a dispute exists under the Vienna Convention," held the court.

The court said it considered that Pakistan's failure to provide consular access to India was under the scope of Vienna Convention.

"Acts alleged by India fall in the Vienna Convention, which guarantees the state to be given access to its citizen," said the ICJ verdict.

In another blow to Pakistan, the court said that the circumstances in which Jadhav was arrested remained "disputed".

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In an important remark, the ICJ verdict said that Vienna Convention, which insists on consular access to the accused citizen, "doesn't exclude those found guilty under terror and espionage charges".

All states that are party to Vienna Convention have right to consular access in another state. "It appears that rights invoked by India are plausible… consular access under Vienna Convention are recognised under Article 36-1.... the right invoked by India," said the court.

According to Pakistan law, the earliest it could have executed Kulbhushan Jadhav would be May 19, exactly 40 days after the announcement of his sentence.

In March 2016, Jadhav was arrested by Pakistani officials and was accused of being a spy for the Research and Analysis Wing (RAW). He was also accused of aiding separatists in Balochistan. India, on the other hand, said he was kidnapped by Pakistan in Iran while Jadhav was there for business purposes and added that he had retired from Indian Navy in 2002. India was denied consular access to Jadhav despite repeated attempts.

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In April, a Pakistani military court awarded death sentence to Jadhav after a secret trial. According to an official statement by Pakistan, Jadhav was tried under Section 59 of the Pakistan Act 1952 and Section 3 of Official Secrets Act 1923.

Soon after the verdict, Indian foreign secretary S Jaishankar summoned Pakistan high commissioner Abdul Basit saying that the proceedings were 'farcical'. Pakistan, however, said that the proceedings leading to the verdict were transparent and were based on Jadhav’s confession.

A month later, India moved the International Court of Justice, which stayed Jadhav's death sentence. Days later, India represented by a battery of top lawyers, including Harish Salve, presented its case at The Hague, saying that Jadhav's conviction was a gross violation of the Vienna Convention. Pakistan gave counter arguments, maintaining that Jadhav was a spy and his passport was fake.
first published:May 18, 2017, 16:07 IST