ICJ decision in India v. Pakistan (Jadhav Case)

The decision and separate opinions of the International Court of Justice in India v. Pakistan (Jadhav Case) can be found here. Part of the judgment addresses what happens next as a result of Pakistan's violation of the Vienna Convention on Consular Relations:

144. In light of these circumstances, the Court considers it imperative to re-emphasize that the review and reconsideration of the conviction and sentence of Mr. Jadhav must be effective.

145. In this regard, the Court takes full cognizance of the representations made by Pakistan. During the oral proceedings, the Agent of Pakistan declared that the Constitution of Pakistan guarantees, as a fundamental right, the right to a fair trial; that the right to a fair trial is “absolute” and “cannot be taken away”; and that all trials are conducted accordingly and, if not, “the process of judicial review is always available”. Counsel for Pakistan assured the Court that the High Courts of Pakistan exercise “effective review jurisdiction”, giving as an example the decision of the Peshawar High Court in 2018 (see paragraph 142 above). The Court points out that respect for the principles of a fair trial is of cardinal importance in any review and reconsideration, and that, in the circumstances of the present case, it is essential for the review and reconsideration of the conviction and sentence of Mr. Jadhav to be effective. The Court considers that the violation of the rights set forth in Article 36, paragraph 1, of the Vienna Convention, and its implications for the principles of a fair trial, should be fully examined and properly addressed during the review and reconsideration process. In particular, any potential prejudice and the implications for the evidence and the right of defence of the accused should receive close scrutiny during the review and reconsideration.

146. The Court notes that the obligation to provide effective review and reconsideration can be carried out in various ways. The choice of means is left to Pakistan (cf. LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 514, para. 125). Nevertheless, freedom in the choice of means is not without qualification (Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, I.C.J. Reports 2004 (I), p. 62, para. 131). The obligation to provide effective review and reconsideration is “an obligation of result” which “must be performed unconditionally” (Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mexico v. United States of America), Judgment, I.C.J. Reports 2009, p. 17, para. 44). Consequently, Pakistan shall take all measures to provide for effective review and reconsideration, including, if necessary, by enacting appropriate legislation.

147. To conclude, the Court finds that Pakistan is under an obligation to provide, by means of its own choosing, effective review and reconsideration of the conviction and sentence of Mr. Jadhav, so as to ensure that full weight is given to the effect of the violation of the rights set forth in Article 36 of the Vienna Convention, taking account of paragraphs 139, 145 and 146 of this Judgment.

Brava Christina!

Christina Cerna

Hearty congratulations to Global Military Justice Reform's longtime contributor Christina Cerna on her election to the Amnesty International USA Board of Directors.

Some reforms in Uruguay

The Uruguayan Senate is to vote on a measure that will abolish the defense of obedience to orders where the order entails a human rights violation. Additionally, the country's Courts of Honor will be abolished, to be replaced by an Ethics and Military Conduct Tribunal. More information here.

UK MOD Report on Inappropriate Behaviours

The UK Ministry of Defence has issued a Report of Inappropriate Behaviours. It is available here. The Executive Summary states:

On 10 April 2019 in response to repeated instances of inappropriate and allegedly unlawful behaviour by serving members of the UK Armed Forces, the Secretary of State for Defence commissioned an urgent report into inappropriate behaviours in the Armed Forces. The report, due in mid-May 2019, was expected to: understand the current evidence regarding inappropriate behaviour across the Services; make recommendations on what can be done to ensure and reassure the Armed Forces are an inclusive and modern employer; and identify areas for further action, including potential improvements to controls, processes or policy.

There are nearly 250,000 people in Defence, military and civil service, and the overwhelming majority serve with great pride collectively protecting the UK 24/7. The UK Armed Forces are a formidable fighting force and the commitment of all military and the civilians that support them is rightly celebrated. In bleak contrast, however, inappropriate behaviour persists which harms people, the teams they serve in and, ultimately, operational output. There is no single comprehensive picture of inappropriate behaviours in Defence, however the data that does exist points to an unacceptable level of inappropriate behaviour and a sub-optimal system for dealing with it when it does occur. Such behaviour – and its consequences for the people affected by it – damages the UK Armed Forces’ hard-won reputation for courage, determination and professionalism, and almost certainly has an impact on attracting, recruiting and retaining the talent that our Armed Forces and Civil Service need. Culture and performance is not a trade-off; tackling inappropriate behaviour is performance-enhancing for Defence, as well as the right thing to do.

Supreme Court of India reiterates that Summary Court Martial can only be held in emergent and exceptional cases

The Supreme Court of India has once again held that a Summary Court Martial (SCM) can only be pressed into service in exceptional circumstances and emergent situations.

The case involved a soldier, Randhir Singh, who was dismissed from service by way of a verdict by a SCM and his appeal against the same was also dismissed by the Armed Forces Tribunal.

While challenging the order of the Court Martial, it was contended by the soldier that there was no urgent need of holding an SCM when the event was of the month of August 2007 while the SCM ultimately convened in May 2008.

The Supreme Court, finding weight in the argument, has converted the dismissal of the soldier into discharge with pensionary benefits. The entire decision of the Court can be accessed here. 

The Court has relied upon its earlier verdict wherein it was held that an SCM is an exceptional tool and cannot be used in routine cases where a proper trial is feasible.