Kulbhushan Jadhav Case in ICJ 
| Virendra Kumar Gaur, Former IG, BSF - 21 Feb 2019

Kulbhushan Jadhav Case in ICJ 

India provided his identity papers, however, Pakistan gave no documents related to the case. Pakistan made a purported confessional statement on video obtained through coercion.

By V K GAUR    

New Delhi, February 21, 2019: The four days public hearing of Kulbhushan case began on 18 February by International Court of Justice( ICJ ) Hague. Unfortunate for Pakistan that its 16th judge of the bench hearing the case suffered heart stroke. Pakistan’s request for long adjournment was not accepted by the court.

On the first day of Kulbhushan Jadhav’s case hearing, India’s renowned senior advocate Harsh Salveforcefully presented arguments. Jhadav 48, was sentenced to death by a military court in April 2017, after being charged with alleged involvement in espionage and subversive activities in Balochistan. Pakistan alleged he was arrested from Balochistan in March 2016. Date of arrest was not declared. India denied allegations and accused Pakistani operatives of kidnapping him from Iranian port Chabahar where he was running a business.

Between December 2014 and February 2018, on average three death row inmates, convicted by military courts of Pakistan, were executed in almost every week making Pakistan the “fifth most prolific executioner country” in the world. 

In 2015 Military courts were created to try terrorists after a terrorist attack on Army Public School in Peshawar. The Constitution of Pakistan and the Army Act were amended to extend the jurisdiction of military courts over civilians for a duration of two years. The government planned to create the necessary infrastructure and facilities in the civil courts in two years. Nothing was done by the Pakistan Government and the Parliament extended the tenure of military courts for further two years- up to March 2019.

Over two years ago the International Commission of Jurists (ICJ)in its report pointed out the gross violation of human rights and unfair, opaque and illegal trials.

International Court of Justice (ICJ) had earlier stayed the execution of Jadhav in July last year despite Pakistan’s arguments that the accused was a spy and there was no reason for him to be granted consular access.

In his arguments on February 2018, Mr Salvedemanded that the ICJ order Jadhav’s immediate release because Pakistan failed to observe even “minimum standards of due process” in sentencing him to death. He also gave following arguments:

-Despite 13 reminders to Pakistan for counsellor meeting, there was no response.

 Indian representative Harish Salve argues before ICJ

-Pakistan did not disclose the date of detention and no documents of Jadhav’s trial were provided.

•        Jadhav’s continued custody without consular meeting should be declared unlawful

•        Pakistan has raised a host of issues that have no relevance to the case

•        India was dismayed with the manner in which Jadhav’s family met him

•        Pakistan’s allegations are disrespectful and baseless

There has been an inhuman violation of human rights.

 The trial in military courts falls below international standards.

•        The Vienna convention has been grossly violated.

•        The military trial was farcical.

•        The Military trial does not satisfy legal standards.

India provided his identity papers, however, Pakistan gave no documents related to the case. Pakistan made a purported confessional statement on video obtained through coercion.

Kulbhushan Jadhav was declared arrested by Pakistan in March 2016. He was forced to give a confessional statement and he was sentenced to death by a military court in 2017.

India filed a petition with the International Court of Justice seeking to overturn the conviction. India contended that Pakistan did not grant consular access to Jadhav.

ICJ stayed the execution.

Despite Pakistan’s appeal that Article 36 of the Vienna Convention on Consular Relations (VCCR) did not apply to spies, ICJ asked the Pakistani government to stay the execution.

According to the Universal Declaration of Human rights, no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. No one shall be subjected to arbitrary arrest, detention or exile. Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

Under the Army Act of Pakistan, a military court is composed of three to five serving officers of the armed forces.  There is no requirement that the military officers be lawyers or have any legal training.  The armed forces officers mostly are undergraduates and have never studied law before getting commissioned. (Minimum education required is intermediate-class 12 pass).  The officers remain subject to the military chain of command.

A law officer of the Judge Advocate General(JAG) branch of the military advises the military court but has no decision-making authority. Majority of the JAG branch officers never practised in a court. It may be recalled that heinous crime cases are invariably committed to the sessions court. A magistrate cannot try such cases. A sessions judge generally has experience of 15 to 20 years in judiciary/legal practice. It is mentioned that military court members simply listen and watch, they do not transact court proceedings.  They are mute. Proceedings are conducted by JAG officer. The judgement of the military court in Pakistan is delivered at the end by majority votes for guilty or not guilty. Voting begins from the junior most officer. The officers are constantly under pressure of the desire of the boss. They continue to be under the usual chain of command.

 Accused persons convicted by military courts and sentenced to death, imprisonment for life, imprisonment exceeding three months, or dismissal from service have the right to appeal the verdicts and sentences to a military appellate tribunal.

A military appellate tribunal is presided over by “an officer not below the rank of Brigadier”. The Chief of Army Staff, or any other officer appointed by him, also sits in the appellate tribunal. Officers who comprise appellate tribunals are serving military officers who are not required to have any legal training and who continue to be subjected to the military chain of command.

The law provides that every appellate court hearing “may be attended by a judge advocate who shall be an officer belonging to the Judge Advocate General’s(JAG)Department, Pakistan Army, or if no such officer is available, a person appointed by the Chief of the Army Staff.”

The military appellate tribunal has the power to “reduce or enhance the punishment” awarded by the military courts of the first instance.

The verdict of a military court that is upheld by a military appellate court is final and cannot be appealed before a civilian court, even the High Court or the Supreme Court of Pakistan.

According to the Army Act, the rules of evidence in proceedings before courts-martial are the same as those observed by regular civilian criminal courts. The Army Act does not require that trials in courts-martial or court-martial appeals take place in public.

An Ordinance passed on 25 February 2015, further amending the Army Act, allows judges of military courts to hold in camera trials, and keep the identities of individuals associated with the cases secret. The Ordinance was enacted as law in November 2015.

International standards require that military courts, like all other courts, must be independent, impartial and competent, and in criminal cases must respect minimum guarantees of fairness.

A duly reasoned, written judgment, including the essential findings, evidence and legal reasoning, is an essential component of a fair trial. Even in cases in which the public may be excluded from the trial, the judgment, including the essential findings, evidence and legal reasoning must be made public, except in the interest of juveniles, or proceedings concerning matrimonial disputes or the guardianship of children.

Military courts in Pakistan often do not make detailed reasoned judgments. Military courts in Pakistan are not independent and the proceedings before them are not consistent with the minimum requirements of fairness.

The military court of Pakistan has not followed any of the essential ingredients of the trial while deciding to send Jadhav to gallows.

Photo – Courtesy Google

(The writer Mr VK Gaur is former IG, BSF and has written more than 50 Books on the issues related to Defence, Strategy and Internal security.)

Disclaimer: The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of Indian Observer Post and Indian Observer Post does not assume any responsibility or liability for the same.


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