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Kulbhushan in Pakistan custody ,given consular access

18 July, 2019

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GENEVA: The International Court of Justice (ICJ) Wednesday rejected India’s request to ‘acquit, release and return’ Kulbhushan Jadhav, an Indian serving Naval commander, sentenced by Pakistan on charges of espionage and terrorism, however sought for him  under the Vienna Convention.

The United Nations’ top court in its final verdict after two-year-long proceedings ruled an effective review and reconsideration of the sentence by Pakistan, but ‘by the means of its own choosing of legislation’. “The court notes that Pakistan acknowledges that the appropriate remedy in the present case would be effective review and reconsideration of the conviction and sentence,” the ICJ verdict read, supporting Pakistan’s stance.

The Hague-based court in response to India’s plea to release Jadhav and to facilitate his safe passage to India said, “It is not the conviction and sentence of Mr Jadhav, which are to be regarded as a violation of Article 36 of the Vienna Convention.” The Court did not accept India’s contention that Jadhav was entitled to ‘restitutio in integrum’ (restoration to original position) and turned down its request to annul the decision of Pakistan’s military court. Instead, it ruled that Pakistan ‘by the means of its own choosing’ can undergo an effective review and reconsideration of the sentence.

President of the ICJ Judge Abdulqawi Ahmed Yusuf read out the 42-page decision in a public sitting at the Peace Palace’s courtroom jam packed with officials, representatives and media persons from Pakistan and India. The court accepted Pakistan’s point that Jadhav is an Indian national possessing a valid Indian passport in the name of Hussein Mubarak Patel and said, “It is satisfied that the evidence before it leaves no room for doubt that Mr Jadhav is of Indian nationality.”

The court did not uphold the submissions by India that the ‘partial or total annulment of conviction or sentence provided the necessary and sole remedy’. It also declared that a continued stay of execution constituted an indispensable condition for the effective review and reconsideration of Jadhav’s conviction.

In its final verdict, the ICJ also ruled that it had the jurisdiction to entertain the application of India under the Vienna Convention, saying it had the jurisdiction under Article 1 of the Optional Protocol concerning the Compulsory Settlement of Disputes to the Vienna Convention on Consular Relations of April 24, 1963.

Earlier, Pakistan had argued that Article 36 of Vienna Convention was not applicable in cases of espionage.

Flanked by English Queen’s counsel Barrister Khawar Qureshi, a 13-member Pakistani delegation, led by Attorney General Anwar Mansoor along with Director General South Asia Dr Faisal and comprising officials of the Ministry of Law and the Ministry of Foreign Affairs, was present in the courtroom. The case proceedings were shown live from the courtroom and shared by the ICJ’s website for real-time update for the viewers worldwide.

Attorney General for Pakistan Anwar Mansoor told reporters outside the courtroom that the decision clearly stated that Jadhav will remain in custody of Pakistan. “This is a clear, clear win for Pakistan.” The attorney general said Pakistan has been very clear from the outset and will consider the review and reconsideration as per the law of land.

Foreign Office Spokesman Dr Faisal said ‘having heard the judgment, Pakistan would now proceed as per law’. “Pakistan, as a responsible member of the international community upheld its commitment from the very beginning of the case by appearing before the honourable court for the provisional measures hearing despite a very short notice,” he said while speaking to reporters.

Serving Indian Navy Commander Jadhav was arrested on March 3, 2016, in a counter-intelligence operation from Balochistan province. A military court had given him death sentence on April 10, 2017, on charges of espionage following his confession of operating for India’s Research and Analysis Wing (RAW) to conduct terrorist activities on the Pakistani soil. India had invoked the jurisdiction of ICJ on May 8, 2017, seeking stay on implementation of execution and later on expanded its prayer for consular access and also his acquittal, release and return.

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