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Politics & Governance

ICJ Rules In Favour Of India As The World Court Suspends Kulbhushan Jadhav’s Death Sentence

After the arrest of United Nations-designated terrorist Hafiz Saeed in Pakistan, India celebrates another taste of victory at the International Court of Justice in The Hague. On Wednesday, the ICJ delivered its verdict in favor of India in the Kulbhushan Jadhav case as the world court ordered Pakistan to grant consular access to the former Indian Naval officer. The ICJ in its verdict has suspended the death sentence and asked Pakistan to review the sentence awarded to Kulbhushan Jadhav by a military court in Pakistan. 

In the order copy following observations are recorded:

-By 15 votes to 1, it rejects the objections by the Islamic State of Pakistan to the admissibility of the application of the Republic of India and finds that the application of Republic of India is admissible;

-By 15 votes to 1, it finds that by not informing Mr. Kulbhushan Sudhir Jadhav without delay of his rights under article 36, paragraph 1 (b) of the Vienna Convention on consular relations. The Islamic Republic of Pakistan breached the obligation incumbent upon it under the provision; 

The ICJ observed that there is no doubt over the Indian nationality of Mr. Kulbhushan Jadhav. India has raised this matter to ICJ on 8th May 2017 after egregious violations by Pakistan of the Vienna Convention, 1963 in the arrest, detention, and trial of Mr. Jadhav. Notably, a Chinese national judge also gave his verdict in favor of India. 

The Case of Kulbhushan Jadhav, Explained:

After the death sentence awarded to the former Indian Naval Officer Kulbhushan Jadhav by the Pakistani Military Court (FGCM, Field General Court Martial) in November 2017, Pakistan had said that the ‘consular access’ will be given on the basis of merit. Kulbhushan Jadhav was convicted by the military court over the alleged charges of espionage and subversive activities in the Balochistan Separatists Movement. The Indian government had repeatedly rejected Pakistan’s version and asked for consular access to Jadhav 14 times, but stayed rejected by Pakistan. Kulbhushan Jadhav couldn’t appeal to the civilian court. He could only have requested for a ‘review’ in the FGCM court, or, appeal in Military Appellate Tribunal. The India Saga had then learned about the murky and dubious procedures followed in Pakistan’s Military Court trials that arise doubt in transparency and sanctity of these Military Court.

About FGCM

Following the terror attack at Peshawar Army School in 2014 by Taliban that claimed 148 lives of innocent children, the then Pakistani government proposed a bill in the Parliament to amend the ‘Army Act 1952’ which was done for a two-years period, to try civilians for terror related offenses and activities. As Nawaz Sharif government failed to prevent terror activities via Civilian courts of Pakistan, he went on for an ‘effective deterrent’ that raised serious questions about the prosecution of the civilians since 2015. After the death sentence awarded to the Indian national, it’s high time to talk about the dubious and secretly controlled trials by Pakistan’s Military Court. 

No Transparency

Since February 2015, a total of 274 individuals have been tried and convicted in several military courts. There are 11 military courts in Pakistan; three in Khyber Pakhtunkhwa, three in Punjab, two in Sindh and one in Balochistan. 

Conventionally, judges are opined to explain the reasoning behind the verdict. However, the Military court doesn’t ensure any such documents to the families of under trials. Even the essential findings are not disclosed. Everything depends upon the wit of Military court that curtails the human rights of the accused. 

No Right to Appeal in Civilian Courts

The Military courts’ convicts cannot appeal against the verdict in the Civilian courts. According to the Pakistan Army Act (1952), Military courts’ convict can only appeal in the ‘Military Appellate Tribunal’. However, convicts can request to ‘review’ the decision in the FGCM courts. Mercy plea is always an option. 

Military court functions in such offenses

– Kidnapping for ransom

– Attacking Military officers

– Instigating or waging war against the state

– Possessing, storing or transporting explosives, firearms, suicide jackets or other articles

– Using or designed vehicles for terrorist attack

In an exceptional move by amending the Constitution, Pakistan became the lone South-Asian country where civilians are tried by Military courts.

The International Commission for Jurists (ICJ) has been a continuous watchdog for Pakistan’s justice system. It condemned Pakistan in 2016, “the government and military authorities have failed to make public information about the time and place of their trials; the specific charges and evidence against the convicts; as well as the judgments of military courts including the essential findings, legal reasoning, and evidence on which the convictions were based.”

No Law Degree required in Military courts

In Pakistan, Military court judges are military officers very much a part of the military chain of command. There is no requirement for them to have a law degree or a legal background, which are prerequisites of judicial competence and independence of UN Principles. With Inter-Services Public Relations (ISPR), the only source of information for Military court actions, Pakistan continues to announce a death sentence to many. 

Kulbhushan Jadhav death sentence looked highly dubious and suspicious when we observe at the above proceedings and functions of Pakistan Military Court. In the name of prevention of terrorism, Pakistan has been neglecting the international human rights norms on spy and espionage of the Vienna Convention.

By TIS Staffer
the authorBy TIS Staffer

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