India v. Pakistan

The International Court of Justice has entered an order staying the execution of an Indian citizen who has been sentenced to death by a Pakistani military court. The ICJ press release is here.

On 8 May 2017, the Republic of India instituted proceedings against the Islamic Republic of Pakistan, accusing the latter of “egregious violations of the Vienna Convention on Consular Relations” (hereinafter the “Vienna Convention”) in the matter of the detention and trial of an Indian national, Mr. Kulbhushan Sudhir Jadhav, sentenced to death by a military court in Pakistan.

The Applicant contends that it was not informed of Mr. Jadhav’s detention until long after his arrest and that Pakistan failed to inform the accused of his rights. It further alleges that, in violation of the Vienna Convention, the authorities of Pakistan are denying India its right of consular access to Mr. Jadhav, despite its repeated requests. The Applicant also points out that it learned about the death sentence against Mr. Jadhav from a press release.

India submits that it has information that Mr. Jadhav was “kidnapped from Iran, where he was carrying on business after retiring from the Indian Navy, and was then shown to have been arrested in Baluchistan” on 3 March 2016, and that the Indian authorities were notified of that arrest on 25 March 2016. It claims to have sought consular access to Mr. Jadhav on 25 March 2016 and repeatedly thereafter.

According to the Applicant, on 23January2017, Pakistan requested assistance in the investigation of Mr. Jadhav’s alleged “involvement in espionage and terrorist activities in Pakistan” and, by a Note Verbale of 21 March 2017, informed India that “consular access [to Mr. Jadhav would] be considered in the light of the Indian side’s response to Pakistan’s request for assistance in [the] investigation process”. India claims that “linking assistance to the investigation process to the grant[ing] of consular access was by itself a serious violation of the Vienna Convention”.

India accordingly “seeks the following reliefs:

(1) [a] relief by way of immediate suspension of the sentence of death awarded to the accused[;]

(2) [a] relief by way of restitution in interregnum by declaring that the sentence of the military court arrived at, in brazen defiance of the Vienna Convention rights under Article 36, particularly Article 36[,] paragraph 1 (b), and in defiance of elementary human rights of an accused which are also to be given effect as mandated under Article14 of the 1966 International Covenant on Civil and Political Rights, is violative of international law and the provisions of the Vienna Convention[;] and 

(3) [r]estraining Pakistan from giving effect to the sentence awarded by the military court, and directing it to take steps to annul the decision of the military court as may be available to it under the law in Pakistan[;] 

(4) [i]f Pakistan is unable to annul the decision, then this Court to declare the decision illegal being violative of international law and treaty rights and restrain Pakistan from acting in violation of the Vienna Convention and international law by giving effect to the sentence or the conviction in any manner, and directing it to release the convicted Indian National forthwith.” 

As the basis for the Court’s jurisdiction, the Applicant invokes Article 36, paragraph 1, of the Statute of the Court, by virtue of the operation of Article I of the Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes of 24 April 1963.

On 8 May 2017, India also filed a Request for the indication of provisional measures, pursuant to Article 41 of the Statute of the Court. It is explained in that Request that the alleged violation of the Vienna Convention by Pakistan “has prevented India from exercising its rights under the Convention and has deprived the Indian national from the protection accorded under the Convention”.

The Applicant states that Mr. Jadhav “will be subjected to execution unless the Court indicates provisional measures directing the Government of Pakistan to take all measures necessary to ensure that he is not executed until th[e] Court’s decision on the merits” of the case. India points out that Mr. Jadhav’s execution “would cause irreparable prejudice to the rights claimed by India”. 

India further indicates that the protection of its rights is a matter of urgency as “[w]ithout the provisional measures requested, Pakistan will execute Mr. Kulbhushan Sudhir Jadhav before th[e] Court can consider the merits of India’s claims and India will forever be deprived of the opportunity to vindicate its rights”. The Applicant adds that it is possible that the appeal filed by the mother of the accused on his behalf may soon be disposed of. 

India therefore requests that, “pending final judgment in this case, the Court indicate:

(a) [t]hat the Government of the Islamic Republic of Pakistan take all measures necessary to ensure that Mr. Kulbhushan Sudhir Jadhav is not executed;

(b) [t]hat the Government of the Islamic Republic of Pakistan report to the Court the action it has taken in pursuance of sub-paragraph (a); and

(c) [t]hat the Government of the Islamic Republic of Pakistan ensure that no action is taken that might prejudice the rights of the Republic of India or Mr. Kulbhushan Sudhir Jadhav with respect of any decision th[e] Court may render on the merits of the case”.

Referring to “the extreme gravity and immediacy of the threat that authorities in Pakistan will execute an Indian citizen in violation of obligations Pakistan owes to India”, India urges the Court to deliver an Order indicating provisional measures immediately, “without waiting for an oral hearing”. The Applicant further requests that the President of the Court, “exercising his power under Article 74, paragraph 4[,] of the rules of the Court, pending the meeting of the Court . . . direct the Parties to act in such a way as will enable any Order the Court may make on the Request for provisional measures to have its appropriate effects”.

The ICJ's order is not yet available on the court's website.

The Jadhav dilemma

Dawn has published this op-ed by former caretaker law minister Ahmer Bilal Soofi summarizing Pakistani law as it applies to the case of an Indian citizen who has been sentenced to death by a Pakistani military court. It is important reading. Excerpt:

There are two avenues available to Kulbhushan Jadhav and India if they want to challenge his conviction. One, Jadhav himself may file a writ petition for which he would need to obtain a no-objection certificate from the federal government as per the requirement of Section 83 of the Code of Civil Procedure, 1908 (CPC). The second option is that the Indian state itself may invoke Section 84 CPC and appear before the courts of Pakistan as a petitioner.

Section 83 CPC bars alien enemies residing in Pakistan from suing in the courts without the permission of the federal government. The statutory explanation of Section 83 deems an alien enemy as any person whose country is at war with or engaged in military operations against Pakistan. 

The above law is a statutory formulation of a well-recognised public policy doctrine that a state’s judicial apparatus shall not facilitate the enemy and neither will a state make available its remedies to the enemy. This public policy doctrine has been enshrined in the civil procedure codes of India, Bangladesh and Pakistan. 

The Supreme Court of Pakistan in its judgement (PLD 1969 SC 37) has explicitly stated that Section 83 was a complete bar for an enemy alien.

*   *   * 

Thus, the federal government while examining a request by Jadhav under Section 83 CPC will need to come to a conclusion about whether Jadhav’s activities are to be viewed as an act of waging a covert war on the part of the Indian state. For that purpose, it will be guided by the language of sections 121, 121-A and 122 of the Pakistan Penal Code that sum up the concept of waging war, or its attempt or its conspiracy within the territories of Pakistan. An identical provision in the Indian Penal Code has been widely interpreted by several reported cases of the Indian Supreme Court. 

As mentioned here, the state of India may also consider filing the case itself on behalf of Jadhav before the Pakistani courts under Section 84 of the CPC, since its foreign minister has conclusively owned Jadhav as the “son of India” in her address before India’s lower house, the Lok Sabha. The said section authorises foreign states to become petitioners before local courts in the following words: 

“84(1) A foreign state may sue in any court … Provided, that the object of the suit is to enforce a private right vested in the head of such state or in any officer of such state in his public capacity.” 

 *   *   *

The federal government can only grant permission to Jadhav under Section 83 CPC if there is evidence to suggest that covert hostilities have ceased. There has been no statement or any other indication from the government of India to suggest that they regret the unlawful activities of Jadhav or that they will discontinue from carrying out such activities in the future. There is no offer even to adhere to the principle of non-intervention.

In the absence of any such statement or undertaking by India, the federal government will have no choice except to make an executive determination that India is not discontinuing its efforts of waging war inside Pakistan.

Given Mr Soofi's summary of Pakistani law, one must infer that unless peace were to suddenly break out, the only way out of the current predicament is a political arrangement between the two countries, such as a prisoner exchange, rather than legal proceedings. The recent hangings of Pakistani citizens who were condemned by military courts adds to the urgency of the two states' interactions. 

Provisional measures ordered in Jadhav (India v. Pakistan)

The International Court of Justice has issued an interim order staying the execution of Kulbhushan Jadhav, the Indian citizen who is under sentence of death adjudged by a military court of Pakistan. The order itself is not yet on the ICJ's website, but the press release can be found here. The transcripts of the hearing are available here and here. Excerpt from the press release:

The Court begins by considering whether it has jurisdiction prima facie to hear the case. It recalls that India seeks to ground its jurisdiction in Article I of the Optional Protocol to the Vienna Convention, which provides that the Court has jurisdiction over “[d]isputes arising out of the interpretation or application of the [Vienna] Convention”. In this regard, the Court notes that the Parties do indeed appear to have differed, and still differ today, on the question of India’s consular assistance to Mr. Jadhav under the Vienna Convention. It further notes that the acts alleged by India, i.e., the alleged failure by Pakistan to provide the requisite consular notifications with regard to the arrest and detention of Mr. Jadhav, as well as the alleged failure to allow communication and provide access to him, appear to be capable of falling within the scope of the Convention. In the view of the Court, this is sufficient to establish that it has prima facie jurisdiction under Article I of the Optional Protocol. The Court further observes that the existence of a 2008 bilateral Agreement between the Parties on consular relations does not change its conclusion on jurisdiction. 

The Court then turns to the question whether the rights alleged by India are at least plausible. It observes that the rights to consular notification and access between a State and its nationals, as well as the obligations of the detaining State to inform the person concerned without delay of his rights with regard to consular assistance and to allow their exercise, are recognized in Article 36, paragraph 1, of the Vienna Convention, and that India has alleged violations of this provision. In the view of the Court, therefore, it appears that the rights alleged by India are plausible. 

The Court then focuses on the issue of the link between the rights claimed and the provisional measures requested. It considers that the measures requested are aimed at ensuring that the rights contained in Article 36, paragraph 1, of the Vienna Convention, are preserved. Therefore, a link exists between the rights claimed by India and the provisional measures being sought. 

The Court then examines whether there is a risk of irreparable prejudice and urgency. It considers that the mere fact that Mr. Jadhav is under a death sentence and might therefore be executed is sufficient to demonstrate the existence of a risk of irreparable prejudice to the rights claimed by India. The Court further observes that Pakistan has indicated that any execution of Mr. Jadhav would probably not take place before the month of August 2017. This means that there is a risk that an execution could take place at any moment thereafter, before the Court has given its final decision in the case. The Court also notes that Pakistan has given no assurance that Mr. Jadhav will not be executed before the Court has rendered its final decision. In those circumstances, the Court is satisfied that there is urgency in the present case.

From Pakistan's oral presentation:

In so far as it has been suggested that the process that Commander Jadhav is subjected to is some form of kangaroo court, it is rather bizarre that a court exists in a State which is seeking to do justice and is asking for evidence in that regard and is sharing evidence in that regard. So, the position that is advanced before this Court is, with respect, a sham.

Huh? It will be interesting to see what, if anything, the ICJ says, either now or at the end of the case, about Pakistan's military courts. The editor's guess: nothing.

Welcome to Lahore (but don't expect to find an attorney)

Even though it's only April and there's already stiff competition, Global Military Justice Reform today confers the George III award on the Lahore High Court Bar Association for Worst Decision of the Year. Consider this:

Lahore High Court’s Bar Association said on Friday that it would take action against any lawyer who extended his services to former Indian naval officer Kulbhushan Jadhav, who has been sentenced to death by a Pakistani military court. 

"The LHCBA has unanimously decided to cancel the membership of any lawyer who offers his services to Indian spy Kulbhushan Jadhav," Lahore High Court Bar Association Secretary-General Amer Saeed Raan said after a meeting of the bar on Friday. 

He said the bar has asked the government not to “bow to any foreign pressure”. 

"India has declared Jadhav its son and is putting pressure on the Pakistani government for his release. We demand that the Indian spy who is involved in playing with lives of Pakistanis should not be spared and the government (should) ensure his hanging," he said. 

Earlier, Pakistan's top military commanders under army chief Gen Qamar Bajwa made it clear that "no compromise" shall be made on such "anti-state acts". 

Jadhav’s death sentence was confirmed by army chief Gen Bajwa after the Field General Court Martial found him guilty of "espionage and sabotage activities" in Pakistan. 

Although India has acknowledged that Jadhav had served in the navy, but it denies charges of Jadhav being a spy. It claims that Jadhav was abducted from Iran, a charge Pakistan denies.

Obviously, this case is a bone of contention between the two countries, but really! Shame!

Kulbhushan Jadhav's case

The International News reports here on the status of the case of Indian national Kulbhushan Jadhav, currently under a court-martial's death sentence in Pakistan. Pakistan has yet to provide India untrammeled private access to him, as required by the Vienna Convention on Consular Relations and the decision of the International Court of Justice. It remains unclear why he has not exercised his right to High Court review of his conviction and sentence.

Pakistan's Press Information Department has issued this statement:

The spokesperson of the Ministry of Law and Justice has denied the allegations that secretly an Ordinance with a view to give reprieve to the Indian Commander Kulbhushan Sudhir Jadhav was promulgated by the Federal Government, without taking the country or the Parliament into confidence with a malafide intent. The allegations are baseless and it is clarified that the Government of India had initiated proceedings against Pakistan in the International Court of Justice (ICJ), in the matter of the detention and trial of an Indian national, Commander Kulbhushan Sudhir Jadhav, who had been sentenced to death by a military court in Pakistan in April 2017. Kindly recall that Commander Kulbhushan Sudhir Jadhav was a RAW operative, who facilitated numerous acts of terrorism in Pakistan, which resulted in the killings of countless innocent citizens of Pakistan. The ICJ gave its Judgment on 17th July, 2019 wherein it observed 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.” In order to comply with the directions of the ICJ, the International Court of Justice (Review and Reconsideration) Ordinance, 2020 was promulgated to provide an effective mechanism of review and reconsideration to Commander Jadhav, of Pakistan’s own choice. Under Article 89 of the Constitution of the Islamic Republic of Pakistan, it is the prerogative of the President of Pakistan to promulgate an Ordinance when Parliament is not in session. The Ordinance was promulgated when the Parliament was not in session. Please note that casting aspersions on the decision of the Federal Government to promulgate the Ordinance in question, reflects a poor understanding in respect of Pakistan’s delicate security issues and international obligations and is an attempt to confuse the public. During the past, many Ordinances were issued by the then Federal Governments. The procedure followed with regard to the present Ordinance is no different so there is no question that the Ordinance was illegally or unlawfully promulgated.

Jadhav Case (India v. Pakistan): International Commission of Jurists Q&A

The International Commission of Jurists has just released a set of questions and answers on the International Court of Justice's Jadhav Case (India v. Pakistan). There is a link to the Q&A in the NGO's website press release. Excerpt:

12. Under what provisions of the law was Kulbhushan Jadhav tried in Pakistan? Are proceedings of Pakistan’s military courts compatible with international standards?

According to military sources, Kulbhushan Jadhav was tried under the Official Secrets Act, 1923, for “espionage and sabotage activities against Pakistan”. Evidence against Kulbhushan Jadhav includes a “confession” that was later made public and broadcast on Pakistani media.

Pakistan’s Army Act, 1952, allows military courts to hear cases that arise out of the Official Secrets Act. Contrary to media reports, Kulbhushan Jadhav has not been tried pursuant to constitutional amendments that give military courts additional powers to try people accused of belonging to proscribed organizations who commit terrorism-related offences.

Pakistani military courts are not independent and the proceedings before them fall far short of national and international fair trial standards. Judges of military courts are part of the executive branch of the State and continue to be subjected to military command; the right to appeal to civilian courts is not available; the right to a public hearing is not guaranteed; and a duly reasoned, written judgment, including the essential findings, evidence and legal reasoning, is denied.

(Footnotes omitted.)

A case of the slows in Pakistan

On July 17, 2019, the International Court of Justice handed down its decision in the Jadhav Case (India v. Pakistan). The court held, among other things, that Pakistan was 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 was given to the effect of the violation of the rights set forth in Article 36 of the Vienna Convention." The judgment recites:

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.

That was nearly 10 months ago.

According to Dawn, the Pakistani Foreign Office said in response to a recent statement by India's lead counsel:

Pakistan had granted India consular access to Commander [Kulbhushan] Jadhav and was processing measures for effective review and reconsideration of his case as per the guidelines provided by the ICJ in its judgement.

What those measures are is unknown. It would seem that Pakistan not only has not yet completed the "effective review and reconsideration" ordered by the ICJ, it has still not even settled on what those procedures will consist of. Even if legislation were necessary, one would think that could have been accomplished by now.

The rocky road of military justice: Pakistan, India and beyond

An Indian blog, Law and Other Things, has kindly run this post by the editor:

Considering the fact that it’s a pretty obscure area, military justice is very much in the headlines right now. It’s a good time to take stock of current developments. As you will see, while once military justice existed in a kind of legal cocoon, separate and apart from developments in society as a whole, that is no longer the case.

The subcontinent is a good place to start. Readers are likely to be aware of the current controversy over the fate of a retired Indian Navy commander, Kulbhushan S. Jadhav. Commander Jadhav was convicted in a Pakistani military court and sentenced to death. Pakistani authorities refused India’s efforts to communicate with him as provided in the 1963 Vienna Convention on Consular Relations, to which both countries are parties. India invoked the jurisdiction of the International Court of Justice, which on May 18 ordered Pakistan not to proceed with the execution.

The proceedings at The Hague are playing out as a fight over remedies in the event a country violates the consular access provision. Will the court stop its inquiries once it decides whether Pakistan violated that provision, or will it go further and address the fairness and legality of the Pakistani legal proceedings that brought Commander Jadhav to Death Row? My prediction is that, once it reaches the merits, the ICJ will confine itself to the Vienna Convention issue, and simply turn back the hands of the clock so that the status quo as it existed prior to any breach of the Convention is restored. That will mean Pakistan will have to afford Commander Jadhav consular access, and presumably that access will give him a better sense of his legal rights under Pakistani law, presumably leading to arrangements for him to obtain legal counsel of his own choosing, rather than the Pakistani military officer who previously assisted him.

But other than that, Commander Jadhav will still be in serious trouble because the grave shortcomings of the Pakistani military court will remain. Those courts, whose jurisdiction ought to be confined to military-related offenses by military personnel, were granted jurisdiction over civilians in January 2015 by a constitutional amendment that was passed hastily and had a sunset date only two years later. It lapsed early this year but Parliament renewed it for another two years, so it will remain as an available trial forum. Sadly, a fractured Supreme Court of Pakistan in 2015 upheld the arrangement. The 2017 amendment is the subject of pending constitutional petitions, so it will be some months before we will know whether the court will take a different approach the second time around. (My own view is that the 2015 and 2017 amendments are both invalid because – given their two-year duration — they are actually only statutes masquerading as constitutional amendments, and hence cannot displace protections found elsewhere in the Constitution of Pakistan.)

The shortcoming of Pakistan’s military courts run the gamut. Secret trials. Lack of judicial independence. Unavailability of counsel of choice. Appellate review that is a mockery. Highly constrained review by the civilian courts. Above all, it is a misuse of the military court forum to try a civilian there. None of this is novel. These points are settled under the International Covenant on Civil and Political Rights and reflected in the UN’s 2006 Principles Governing the Administration of Justice Through Military Tribunals.

While the Jadhav case is concerning on its own terms (especially because Pakistan has continued to execute military court defendants), it calls attention to the unsettled state of military justice and the difficulties of making progress on issues that should have been addressed long ago. While Pakistan is an extreme case, it unfortunately is not lacking for company.

At the risk of losing some of my audience, I’ll turn to India. Indian military justice needs more than a face-lift: it needs serious surgery. For example:

• There should be a single disciplinary statute covering all military and paramilitary forces
• There should be an independent military judiciary
• Charging decisions should be made by prosecutors outside the chain of command
• There should be meaningful appellate review by the civilian courts, including the Supreme Court of India
• The judicial review system has to move at a much faster pace, in contrast to the current arrangement under which cases linger literally for decades, by which time it is nearly always impossible to fashion fully relief

Looking further afield, it is discouraging to see one country after another – countries whose leaders know better – subjecting civilians to trial in military courts. Current examples include not only Pakistan but Venezuela, Lebanon, Uganda, Bahrain and Russia. This is moving in absolutely the wrong direction. Sometimes this happens because the civilian criminal justice system is dysfunctional, but the answer surely must be to fix that system rather than throw up one’s hands and turn in desperation to the military. At other times, military courts are relied for entirely improper reasons, such as to stifle dissent. Either way, this is a bad trend and civil society in the affected countries needs to resist it.

Two other issues that ought to be on people’s screens are the problem of impunity with respect to deployed personnel and the special problem of indiscipline among peacekeepers, whether under UN auspices or not. A number of countries are currently engaged in military operations beyond their borders, and experience teaches that misconduct by deployed personnel is not unheard of. This may be merely the usual (impermissible) theft, looting and similar crimes, or it may involve grave breaches of the law of war. Several cases over the last few years have involved the killing of wounded enemy combatants. Desecration of fallen combatants has been reported. Handling these cases can be a challenge even for countries with the deepest commitment to the rule of law. Who (if anyone) will be charged and at what level of severity? What sentence can be secured in the event of conviction, and how will the sentence be affected by appellate review and the exercise of clemency at the political level?

Problems of impunity are, if anything, magnified when it comes to peacekeeping units. “What happens in [fill in the country] stays in [fill in the country]” has long been the practice. Troops far from home may be tempted by greed, malevolence or sexual needs to prey upon vulnerable local populations, but disciplinary action may be slow in coming, if it ever does. The troop contributing country, rather than the UN or other umbrella organization for the mission, has the right and duty to impose punishments. The UN’s Department of Peacekeeping Operations and the Secretary-General are fully aware of this problem and are finally taking steps that, with luck, may lead to improved discipline. Needless to say, until the UN gets on top of this problem, troop contingent relations with the local population every mission seeks to protect will be more of a challenge than necessary.

Finally, countries need to be systematic about military justice reform. Military leaders should be proactive rather than waiting for change to be forced on them by events on the ground, pressing legislative issues such as sexual assault in the forces, or judicial decisions that may or may not make practical sense. Every country of course has its own political culture and dynamic. India, for example, turned to a broad-based committee to formulate suggestions. In generating a recent set of military justice reforms the Pentagon was open to suggestions but conducted no public hearings. Shamelessly, when the administration’s proposals reached Congress, neither the Senate nor the House of Representatives conducted a single public hearing. The result of that opaque process was that such long-overdue “no-brainer” reforms as giving military personnel the same access to the Supreme Court as is enjoyed by all other criminal defendants never even came up.

These notes only scratch the surface with respect to the range of military justice issues countries around the world are grappling with. Pakistan may be under the microscope at the moment, but it is not alone.

The Jadhav case, and a comparison of neighboring states' legislation

Dr Ashok Dhamija

Dr. Ashok Dhamija , a Supreme Court advocate in New Delhi, has written this comparison of Pakistani and Indian legislation on who is subject to military trial and how spying is dealt with. Excerpt:

It goes without saying that there is a vast difference between the prosecution in an open court and that in a Court Martial. More often than not, you cannot expect full justice in a Court Martial which is conducted by the military officers. In the case of [Kulbhushan] Jadhav, till recently, in December 2016, Sartaj Aziz, Pakistan’s Foreign Minister, had told members of the country’s senate that there was insufficient evidence presented of Mr Jadhav’s alleged espionage. But, suddenly, in the most secretive manner, without letting the world know when he was charged and when he was tried, Pakistan has announced that Jadhav has been sentenced with death penalty by a Field General Court Martial, a military court consisting of Pakistan army officers, and that the Pakistan Army General has approved the said sentence. Any consular access to him was completely denied by Pakistan. No defence lawyer apparently; at least, not an independent defence lawyer (in India, it is a fundamental right to get a defence lawyer of your choice). The trial was secret. This, by itself, shows how unjust, hollow and farcical such trial would have been. India has rightly said that if Jadhav is hanged, it would be nothing but a premeditated murder. 

Now, the question is why can’t India also have similar legal provisions? Why can’t India also amend its laws in a similar manner? 

It is noteworthy that many Pakistan ISI spies are regularly caught in India indulging in anti-India activities. We prosecute them under the ordinary laws and in ordinary courts, and not in Court Martial, and moreover, there is no death penalty for such offences in India. We handle them with kid gloves. 

For example, this news report shows that there are 30 Pakistan nationals currently facing charges of spying who are in Indian jails but none of them has been denied consular access whenever sought. No Pakistan spy has been sentenced to death. On the other hand, Pakistan did not allow India to have any consular access to Jadhav even once.

As a political matter, the suggestion to fight fire with fire may be superficially attractive, and perhaps the case will be resolved by a prisoner exchange or other means, but there is little to recommend replicating Pakistan's unfair legislation. Some basic facts and questions about Pakistan's military courts are summarized here.

Op-ed on Kulbhushan Jadhav's death sentence pronounced by a Military Court in Pakistan

My op-ed published in The Quint today:

Jadhav and Pakistan's Military (In)Justice

Some laws are strange and some even stranger.

In former Naval Commander Kulbhushan Jadhav’s case, what exactly is the ‘appeal’ that Pakistan’s Defence Minister was talking about? Pakistan’s military law unsurprisingly prohibits the challenge to military verdicts in the superior civil judiciary. Unsurprising also is the fact that the so-called provision of ‘appeal’ under the Pakistan Army Act (PAA) is a sham, for it is placed before a body comprising serving Army officers who are expected to examine military verdicts confirmed by their own Army Chief. It is not just a plea from Caesar to Caesar’s wife -- as the Supreme Court of India had remarked about Indian military law -- but from Caesar to Caesar himself.

Jadhav, being a retired officer, is a civilian. While the international community and many legal luminaries and bar associations within Pakistan have protested the trial of civilians by military courts, the legal challenges so far have remained unsuccessful. The star qualities of military courts in Pakistan, if I may call them so, albeit sarcastically, are quite revealing. These courts comprise serving officers of the military having no inkling of law, legal procedures or international norms, the trials are held in secret locations, no counsel is provided, no copy of the decision is provided, there is no professional and independent prosecution or defence or even examination of evidence, the conviction rate is almost 100% with custodial confessions and all accused magically pleading ‘guilty’ and then there is no real appeal. These trials run contrary to established principles of justice much cherished in democracies characterized by the rule of law and militate against the basic norms propounded by the International Covenant on Civil and Political Rights, especially Article 14, which calls for fair and public hearings in a competent, independent and impartial tribunal.

Interestingly, some would say that even Indian military courts are not much different from those of Pakistan. True, on a very conceptual level at the first superficial blush, but going deeper there are sharp dissimilarities. Civilians are not tried by our military courts. Courts martial as also other administrative actions of the military are challengeable and remain under the sharp focus of the superior judiciary. Admittedly, though our system of military law also is in need of relatable reform on the aspect of independence from command influence and prosecutorial autonomy, we are simply different since no organisation or entity in India is beyond question or judicial review. Through the times, our High Courts and the Supreme Court have stood as a shield against administrative tyranny for the populace, military personnel included, a reality much celebrated not only by our citizenry but also by the State. What further sets us apart is that despite the inherent resistance to change, there is still openness and acceptability of variance of opinion and there are voices within the defence services and the government which would like to see progressive reform. The report of a committee of experts which had rendered strong recommendations on military justice reform is also currently under active consideration of the government. Further, in India there is not even a trace of primitive punishments such as death by stoning or amputation which the PAA proudly proclaims in Section 60. This however does not mean that we can rest on our laurels, and paradoxically, Jadhav’s predicament provides us with an opportunity for honest introspection of our system too. A high conviction rate and faster processes in the military, even in India, may reflect efficiency but not necessarily all-round judiciousness. While justice delayed is justice denied, justice hurried could also well be justice buried. It must never be forgotten that the aim of a trial is to secure justice, not conviction.

Though it would not be proper to dwell upon what might be the future of the issue so as not to jeopardize the diplomatic and legal efforts, or even to predict whether the sentence would ultimately be reduced and then a Presidential pardon effectuated on give and take basis, suffice it to say that de hors the merits of the case, the least Jadhav deserved was a fair trial and it would only be proper for the world community and the civil society within Pakistan to strongly oppose these dehumanizing extra-constitutional kangaroo courts which fail every single test of law, conscience and civility.

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.

What does Pakistan do now?

This article suggests that Pakistan might wind up trying Kulbhushan Jadhav in a civilian court, now that he has been afforded consular access in accordance with the judgment of the International Court of Justice. Excerpt:

The military court option, if Pakistan chooses that path, is likely to stonewall India's options within Pakistan as far as Kulbhushan Jadhav case is concerned. India would then definitely approach the ICJ once again seeking clearer direction -- in the form of interpretation of its July judgment -- to Pakistan for a Kulbhushan Jadhav trial in a civilian court.

If and when this happens, India could be able to engage a lawyer to represent Kulbhushan Jadhav in a civilian Pakistani court. A qualified judge would hear his side of story -- of how he was abducted from Chabahar area of Iran, where he had some business interests. . . .

Hope for a safe release of Kulbhushan Jadhav from Pakistani jail hinges on a review of the military court trial by a civilian court, which will definitely be under the lens of international community. But that hinge is still at some distance into an unseen future.

A civilian trial seems unlikely, and there is little reason to believe the ICJ would require it unless the Pakistani civilian courts' review of the military court proceedings can be shown to be a sham.

Pakistan's leisurely compliance with the ICJ's Jadhav decision

Here's the latest on Pakistan's leisurely compliance with the ICJ's decision in the Jadhav case:

Major opposition parties – the PML-N and the PPP – are likely to oppose an ordinance meant to allow convicted Indian spy Kulbhushan Jadhav to file a review appeal against his conviction [by a military court] despite a request by the PTI led federal government not to politicize the “national security issue”.

The government is expected to table the International Court of Justice (Review and Re-consideration) Ordinance, 2020 in the lower house of parliament on Monday [today]. 

Reema Omer of the International Commission of Jurists has this insightful report on the case and the ordinance at issue. She writes:

There are legitimate concerns about the secret, non-consultative manner in which the Ordinance was passed; whether its provisions meet the requirements of the ICJ judgement; and whether person-specific remedies of the kind proposed by the Ordinance are permitted under Pakistani law. However, it is unfortunate that opposition parties are focusing their criticism on alleged “relief” to Jadhav and “appeasement” of India.

Similarly, instead of acknowledging that Pakistan made a mistake by denying Jadhav consular access promptly after his arrest in accordance with its international obligations and the need to rectify that error, the government too continues to blame past governments for accepting the ICJ’s jurisdiction.

This vi[]c[i]ous cycle of point-scoring must end. It comes at the cost of principles such as the right to a fair trial and creates an environment where even fulfilment of Pakistan’s basic international legal obligations appears as treason. Surely, our political parties are better than that.

Legal context of the Jadhav case

Wg Cdr (Dr) U C Jha has kindly provided the following report on the legal framework of the Kulbhushan Jadhav military court controversy between Pakistan and India:

It has been reported in The Hindu newspaper of today that Jadhav's mother has submitted an appeal. The punishment awarded by the Field General Court Martial (FGCM) to Jadhav was confirmed by the Pakistan Army Chief. The Appeal Court would consist of three members: the Army Chief, another officer, and a judge advocate appointed by him for this purpose. The Appeal Court under section 133B of the Pakistan Army Act has the power to: (a) accept or reject the appeal in whole or in part; (b) substitute a valid finding or sentence for an invalid finding or sentence; (c) call any witness, in its discretion for the purpose of recording additional evidence in the presence of the parties, who shall be afforded an opportunity to put any question to the witnesses; (d) annul the proceedings of the Court Martial on the ground that they are illegal or unjust; (e) order retrial of the accused by a fresh court; or (f) remit the whole or any part of sentence or reduce or enhance the same. The decision of Court of Appeal, as provided in subsection 133B(3), shall be final and cannot be called in question before any court or any other authority whatsoever. The Supreme Court can interfere in the case only if the military court has acted without jurisdiction and coram non judice.

Section 133-B reads as under Court of Appeals for other cases:

(1) Any person to whom a court martial has awarded a sentence of death, imprisonment for life, imprisonment exceeding three months, or dismissal from the service after the commencement of the Pakistan Army (Amendment) Act, 1992, may, within 40 days from the date of announcement of finding or sentence or promulgation thereof, whichever is earlier, prefer an appeal against the finding or sentence to a Court of Appeals consisting of the Chief of the Army Staff or one or more officers designated by him in this behalf, presided by an officer not below the rank of Brigadier in the case of General Court Martial or Field General Court Martial or District Court Martial or Summary Court Martial convened or confirmed or counter signed by an officer of the rank of Brigadier or below as the case may be, and one or more officers, presided by an officer not below the rank of Major General in other cases, hereinafter referred to as the Court of Appeals; 

Provided that where the sentence is awarded by the court martial under an Islamic law, the officer or officers so designated shall be Muslims;

Provided further that every Court of Appeals may be attended by a judge advocate who shall be an officer belonging to the Judge Advocate General’s Department, Pakistan Army, or if no such officer is available, a person appointed by the Chief of the Army Staff. 

(2) A Court of Appeals shall have power to – (a) accept or reject the appeal in whole or in part; or (b) substitute a valid finding or sentence for an invalid finding or sentence; or (c) call any witness, in its discretion for the purpose of recording additional evidence in the presence of the parties, who shall be afforded an opportunity to put any question to the witness; or (d) annul the proceedings of the court martial on the ground that they are illegal or unjust; or (e) order retrial of the accused by a fresh court; or (f) remit the whole or any part of the punishment or reduce or enhance the punishment or commute the punishment for any less punishment or punishments mentioned in this Act. 

(3) The decision of Court of Appeals shall be final and shall not be called in question before any court or other authority whatsoever.

Editor's comment: It cannot be seriously contended that the Army Court of Appeals is independent, given the role of the Chief of Army Staff in both reviewing court-martial results and either serving on or designating a member of the Court of Appeals. This means that review by the Supreme Court of Pakistan will be the first proper judicial scrutiny of the Jadhav case (and any other case tried under the Army Act, whether involving military personnel or civilians). Because the Supreme Court's review is, as Wg Cdr Jha notes, narrowly constrained, it falls far short of the kind of meaningful civilian appellate review to which all criminal defendants are entitled as a matter of human rights.

The Jadhav case: round 2

Khwaja Ahmad Hosain

Pakistani barrister Khwaja Ahmad Hosain has written this Wire analysis of what happens next following the decision of the International Court of Justice in India v. Pakistan (Jadhav):

The ICJ notes in its decision that “it is not clear whether judicial review of a military court is available on the ground that there has been a violation of the rights set forth in ….the Vienna Convention”. In reaching this conclusion, the ICJ proceeds on the mistaken assumption that constitutional amendments in Pakistan prevent persons convicted by military courts from relying on breaches of fundamental rights.

The relevant constitutional amendment prevented the law extending the jurisdiction of military courts from being struck down as unconstitutional. It did not restrict the right available to a person convicted by such court from challenging the conviction through a judicial review process. In light of the ICJ’s observations, it seems clear that the civilian courts must consider the impact of denial of consular access on Jadhav’s trial for Pakistan to fulfil its obligations to provide for effective review.

The government will need to proceed with caution in this case to ensure compliance with the ICJ decision. If Jadhav retracts his confession on the basis that it was given under duress and in absence of consular/legal advice, is there any other evidence linking him to the crimes he confessed to having committed? Convictions solely on the basis of confessions in custody are often troubling and unsound. In any case, the government and authorities should be focused on getting the right and fair result in any review and reconsideration, and the aim should not be to uphold the conviction at any cost.

What's going on with Jadhav's right to appeal?

The Express Tribune has an excellent explainer of the current state of play in the case of Kulbhushan Jadhav, who is under a death sentence in Pakistan. The International Court of Justice held that Pakistan had to afford him a right to judicial review of his court-martial conviction, and Pakistan issued an ordinance giving him that opportunity. He hasn't yet appealed and time is running out. Will India appeal for him? Excerpt:

In view of the ICJ judgment in July last year, the federal government had promulgated the International Court of Justice (Review and Reconsideration) Ordinance, 2020 on May 20 for an effective review of the case.

The ordinance read that a foreign national -- either themselves or through their authorised representative or through a consular officer of mission of their country -- might file a petition before a high court for a review and reconsideration in terms of Section 3 of an order of conviction/sentence of a military court operating under the Army Act 1952.

It is also stated that the petition for review and reconsideration could be filed within 60 days of the promulgation of the ordinance.

The ordinance further read that in deciding the petition, the court would examine whether any prejudice had been caused to the foreign national in respect of their right to defence, evidence and principles of fair trial due to the denial of consular access according to Vienna Convention on Consular Relations of April 24 1963.

If any difficulty arises in giving effect to any provision of the ordinance, the president may pass an order as may appear to him to be necessary for the purpose of removing it.

International Dispute Unit chief Ahmad Irfan told reporters that Jadhav was informed about the promulgation of ordinance and his legal right for a review or reconsideration of the military court verdict against him in line with the ICJ judgment. However, he refused to avail the legal remedy and requested considering his mercy plea, which was already pending before the Pakistan army chief.

Pakistan then invited to India to avail the legal remedy until July 20.

What's really going on with the Jadhav case?

Barkha Dutt

The Washington Post has this opinion piece by Barkha Dutt about the military trial and death sentence of an Indian citizen. Excerpt (and teaser):

[W]hether [Kulbhushan] Jadhav is a spy is moot. What is beyond dispute is that the Pakistan Army’s declaration of a death sentence for him via a clandestine court-martial breaks with all standard practice; it is almost an open invitation to escalation from India. 

Shockingly, the announcement of Jadhav’s death sentence this past week was made by the Pakistan Army and not the government’s foreign office. The sentencing seemed to take the Nawaz Sharif-led civilian government entirely by surprise, even as Indians were convulsed with rage. Pakistan’s foreign minister Sartaj Aziz said last year that there was no “conclusive evidence” against Jadhav. So the sudden announcement appears to be as much about Nawaz vs. the Pakistani Army as it is about India vs. Pakistan. With Pakistan’s military stripping away the veneer of authority from its civilian prime minister, the aim could be to further weaken him and ensure that he is unable to steer the wheel in the direction of a dialogue with India.

Round 2 approaching in Jadhav case

India and Pakistan are still at it in the case of Kulbhushan Jadhav. The International Court of Justice ruled that Pakistan had to provide effective appellate review of Jadhav's military court conviction, but that hasn't happened yet. Nor has India been afforded consular access, which was what led to the ICJ proceedings in the first place. A status report can be found here.

Who can appeal Jadhav's military court conviction?

Dawn reports that Indian authorities have transmitted an appeal by Kulbhushan Jadhav's mother. Excerpt:

His mother’s appeal for the appellate court may not be the right way to proceed because under the military’s legal system, the convict has to do it himself and is issued a document for filing appeal at the time of his sentencing.

“It is a violation of the Army Act,” military law expert retired Col Inam-ur-Raheem said, adding that in military the appeal process had to be initiated by the convict, possibly with the help of a counsel.

However, he noted that in the civilian judicial process, appeals could be filed by someone related to the convict. Petitions against decisions by military courts trying civilians accused of terrorism, he recalled, were filed by the parents of the convicts.

It is difficult to understand why Jadhav would not have submitted an appeal of his own -- or why his attorney (if he had one) would not have done so. 

Jadhav case hearing

India has stated its case before the International Court of Justice in India v. Pakistan (Jadhav Case). As this report notes, India contends that the military court that sentenced Kulbhushan Jadhav to death was not independent because its judges were military officers without legal training and lack security of tenure. Presumably Pakistan will return the compliment by pointing to deficiencies in India's own military justice system, including the nonlawyer retired senior officers who sit on the Armed Forces Tribunal and the country's failure to grant trial-level judge advocates fixed terms of office or the power to make binding rulings on questions of law. (Indian readers: please correct me if this is mistaken.) On the other hand, India does not prosecute civilians in courts-martial.