Mumbai:
City-based legal experts hailed the International Court of Justice (ICJ) verdict suspending the execution of Indian national Kulbhushan Jadhav and ruling that Pakistan, where he has been jailed, had acted in violation of the Vienna Convention.
In a major victory for India, the Hague, Netherlands- based ICJ Wednesday ruled that Pakistan must review the death sentence for Jadhav (49).
Jadhav, a retired Indian Navy officer, was sentenced to death by a Pakistani military court on charges of “espionage and terrorism” after a closed trial in April 2017.
Ujjwal Nikam, who was the special public prosecutor in the 26/11 Mumbai terror attack case, described it as a “historic” judgement.
He said the ICJ ruling showed Pakistan breached Article 36(1) (b) of the Vienna convention (by not informing him of his rights to consular access).
“It is a historic judgement, especially since Pakistan based its case mainly on Jadhav’s confession. The consular access will help India know under what circumstances did Jadhav give the confession. I am confident we will be able to establish the truth now,” said Nikam.
The noted criminal lawyer sought to know what are the accusations against Jadhav and why was he not informed about them.
“This amounts to human right violation,” Nikam said.
He said that while as per Article 94 of the United Nations Charter, the ICJ order was final and cannot be appealed against, the question arises if Pakistan will abide by it.
“The only fear is that if Pakistan rejects the order and says that it will not follow it, we can only go to the United Nations Security Council.
“But if the United Nations feels that Pakistan’s step will hamper the international peace then it can force Pakistan to abide by the verdict,” Nikam said.
Senior counsel Amit Desai, too, said that while the verdict highlighted Jadhav had been denied a fair trial, it was important now to see if Islamabad will follow the ICJs ruling.
The verdict very clearly establishes some sort of a failure of the principal of natural justice in the case (heard by Pakistani courts). It shows the absence of consular access (allowing Indian diplomats to visit him in jail) resulted in the lack of a fair trial.
“The ICJ verdict, thus, is an indicator of the underlying breach of the fair trail rule that must be followed by all countries that prescribe to the rule of law, he said.
While the ICJ verdict means that Pakistans position on the issue has not been accepted, the larger question is whether Pakistan will follow this ruling.
“Since Pakistan arrived at the decision (of Jadhavs execution) following a judicial process in its own courts, will it follow the ICJ ruling, or will it call for a review of the decision.
“However, in the international context, it might be difficult for Pakistan to disregard the ICJ verdict without sound reason, Desai said.
Jadhav was arrested by Pakistan in March 2016. India moved the world court in May 2017 after the Pakistani military court awarded the death sentence to Jadhav.
A bench led by President of the Court Judge Abdulqawi Ahmed Yusuf ordered an “effective review and reconsideration of the conviction and sentence of Mr Kulbhushan Sudhir Jadhav”.
The bench also ruled by 15 votes to 1 that Pakistan had violated India’s rights to consular visits after Jadhav’s arrest.
India maintains Jadhav was kidnapped from Iran where he had business interests after retiring from the Navy.
