ICJ to decide on case of ex-Indian navy officer convicted in Pakistan

Kulbhushan Sudhir Jadhav, a former Indian navy commander, was arrested in Pakistan in March 2016 and convicted of spying by a military court 11 months later.

A month after Jadhav was sentenced to death, India approached the Hague-based World Court, seeking immediate intervention to halt the death sentence on the premise that Pakistan had breached the 1963 Vienna Convention by not allowing diplomatic assistance to Jadhav despite repeated requests.

The UN top court ordered a stay in his execution the same month until its final verdict on the matter. Islamabad has so far complied with the instructions.

Here are the details of the case:

Arrest vs abduction 

After Pakistan announced the arrest, India said that Jadhav conducted legitimate business in the Chabahar Free Trade-Industrial Zone of Iran’s southern Chabahar city and was abducted by militants in the country weeks before. 

New Delhi added that the militants handed Jadhav over to Pakistani authorities but has yet to make public any details regarding legal proceedings in Iran related to the abduction claim preceding Pakistan’s announcement.

Some Indian officials had said the former Indian officer could have been honey-trapped into entering Pakistan, while some media reports in India mention him as a jeweller and others cite his family saying he was in the business of cargo transportation.

Pakistan has said Jadhav was tasked with disrupting the development of CPEC projects with Gwadar port being a particular target. He was charged with involvement in “subversive” and “anti-Pakistan” activities in Balochistan province as well as the city of Karachi.

India asks for immediate release

On the first day of the hearing, India requested the international court to order Jadhav’s immediate release and return to India citing the lack of consular access that violated the Vienna Convention. Officials in Islamabad have denied New Delhi’s request due to the “spy’s subversive activities,” fearing he could provide details gathered during his espionage missions.

Pakistani officials also said the relief sought by India is disproportionate even if the treaty was violated, and at most Jadhav’s case could be reviewed.

Even though it was New Delhi that requested a hearing at the ICJ, Indian officials accused Islamabad of "misusing" the trial as a propaganda tool.

Islamabad points out that previous precedent set by the ICJ makes it clear that it was not a court of criminal appeal and the presence of "effective" "review and reconsideration" by domestic courts was an appropriate remedy, even if a breach of the right to consular access had been established.

The High Court and Supreme Court of Pakistan provide such a review, as confirmed by leading UK-based military law experts, according to a statement on the Pakistan Ministry of Foreign Affairs website.

Fake passport

Officials in Pakistan released photos and details of a fake Indian passport recovered from Jadhav’s possession that carried his picture under a Muslim name Hussein Mubarak Patel which was used at least 17 times to enter/exit India and contained a visa for Iran’s CFZ. 

Islamabad also cites a “highly credible independent UK expert” as saying the passport is an “authentic Indian passport issued by the Indian authorities.” 

Pakistan also says Jadhav was in service at the time of arrest and questions New Delhi’s narrative of his premature retirement since he was due to retire in 2022.

New Delhi refuses to explain the passport issue and calls it “propaganda.”

The Iran factor 

Pakistani officials believe Iran had no involvement in the case but had requested Tehran to investigate the use of its soil for staging terrorist activities in Pakistan.

Six months after the arrest, an Iranian official had said that the probe into Jadhav’s stay in the country remained inconclusive.

Indian and Pakistani versions of the case have involved Iran, but Tehran has kept itself at a distance, neither confirming nor denying either sequence of events. 

End of a chapter?

Even though the ICJ’s decision is binding, it has no mechanism to enforce its decisions. Many countries including the US, China, Russia, the UK and Japan have ignored the court’s orders.

Pakistan presents its arguments today, which will be followed by India’s counter-arguments on Thursday. 

Islamabad will then gives its closing arguments on Friday which will conclude the hearing.

The verdict’s announcement is expected to take a few months.

Balochistan is Pakistan’s largest but least-populated and least-developed province. 

Pakistan has often accused India and other foreign entities of involvement in the unrest, and support for separatists in the troubled province. India denies these allegations but has hosted some separatists and at rare occasions also publicly expressed support for anti-Pakistan elements.

In July 2009, Pakistan's then-prime Minister Yousaf Raza Gilani and his then Indian counterpart Manmohan Singh met on the sidelines of a Non-Aligned Movement summit in the Egyptian resort of Sharm el Sheikh.

Addressing a joint press conference with Singh, Gilani mentioned that Pakistan has some information on threats in Balochistan and other areas which were shared with New Delhi. Singh and Gillani had both agreed to address each country's concern's which many in India had taken as a "blunder" and an act of "admission."