Memorial of the Republic of India

INTERNATIONAL COURT OF JUSTICE
JADHAV CASE
(India v. Pakistan)
MEMORIAL
OF
THE REPUBLIC OF INDIA
13 SEPTEMBER 2017
INTERNATIONAL COURT OF JUSTICE
JADHAV CASE
(India v. Pakistan)
MEMORIAL
OF
THE REPUBLIC OF INDIA
13 SEPTEMBER 2017
Table of Contents
I. INTRODUCTION ............................................................................................... 1
II. JURISDICTION .................................................................................................. 6
III. STATEMENT OF FACTS ................................................................................... 13
IV. EGREGIOUS VIOLATIONS OF THE VIENNA CONVENTION ................................. 19
V. 2008 BILATERAL AGREEMENT ON CONSULAR ACCESS - INDIA & PAKISTAN ..... 25
VI. HISTORY OF CONSULAR ACCESS ..................................................................... 28
VII. ARTICLE 36 IS A FACET OF DUE PROCESS ........................................................ 35
VIII. JURISPRUDENCE OF INTER-AMERICAN COURT OF HUMAN RIGHTS ................. 45
IX. INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS ....................... 55
X. INTERNATIONAL MINIMUM STANDARDS ....................................................... 58
XI. PAKISTAN MILITARY COURT ........................................................................... 62
XII. RESTITUTION ................................................................................................. 79
XIII. CONCLUSION ................................................................................................. 85
XIV. SUBMISSIONS ................................................................................................ 88
LIST OF ANNEXES [1-13] ................................................................................. 91
1
I. INTRODUCTION
1) On 8 May 2017, the Republic of India (India) instituted an Application, in
accordance with Article 40, Paragraph 1 of the Statute of the International Court
of Justice (Court), read with Article 38 of the Rules of the Court, and Article 1 of
the Optional Protocol concerning the Compulsory Settlement of Disputes
(Optional Protocol) concluded at Vienna on 24 April 1963.
2) The Application sought redress in relation to egregious violations by the Islamic
Republic of Pakistan (Pakistan) of the Vienna Convention on Consular Relations,
1963 (Vienna Convention) in the matter of arrest, detention and trial of an Indian
national, Kulbhushan Sudhir Jadhav (Jadhav).
3) Article 1 of the Optional Protocol concerning the Compulsory Settlement of
Disputes, 19631 (Optional Protocol) stipulates that disputes in relation to the
interpretation or application of the Vienna Convention shall lie within the
compulsory jurisdiction of the International Court of Justice.
4) Article 362 of the Vienna Convention, applied to the facts of the Jadhav case,
mandated:
(a) As Pakistan “arrested” Jadhav, they should have notified the Indian
Consular officers without delay;
(b) that India’s consular officers were (are) free to communicate with, and
have access to Jadhav;
(c) that Jadhav had (has) similar freedom with respect to communication
with, and access to India’s consular officers;
(d) Pakistan was (is) bound to inform Jadhav of his rights to communicate
with, and access to India’s consular officers;
1 The full text of Article 1 of the Optional Protocol, is set forth in paragraph 29, under Section II, titled
‘Jurisdiction’
2 The full text of Article 36(1) and (2) of the Vienna Convention, is set forth in paragraph 31, under Section
II, titled ‘Jurisdiction’
2
(e) any communication addressed by Jadhav to India’s consular post,
while under arrest, in prison, custody or detention, was liable to be
forwarded by Pakistan to India’s consular officers without delay;
(f) India’s consular officers had (have) a right to visit Jadhav, to converse
and correspond with him and to arrange for his legal representation.
5) The actions of Pakistan, in denying consular access to a person who they claim,
and thus do not dispute, is an Indian citizen, who was “arrested” and put on “trial”
by a Military Court, are not disputed. Indeed, none of the elements, which would
trigger obligations under Article 36 of the Vienna Convention, are in dispute. The
violation of the Vienna Convention is, thus, not in dispute.
6) Jadhav was “arrested” on 3 March 2016, and it was only when the Foreign
Secretary, Pakistan, raised the matter with the Indian High Commissioner in
Islamabad, on 25 March 2016, that India was informed of this “arrest”.
7) Article 36(1)(b) of the Vienna Convention obliged Pakistan to inform India of the
arrest of an Indian national “without delay”. Pakistan has not offered any
explanation as to why it took over three weeks to inform the Indian High
Commissioner as to the arrest of Jadhav.
8) India sought consular access to Jadhav right from the time it was informed of the
arrest of Jadhav, and repeatedly reiterated this request to Pakistan.
9) It is not known whether Pakistan informed Jadhav of his right to communicate
with the Indian consular post. The conduct of Pakistan, which at one point
suggested, in public statements, through government functionaries, that the detenu
was not entitled to consular access, strongly suggests Pakistan has not informed
Jadhav of his right to communicate with the Indian consular post.
10) Pakistan’s only reaction has been by way of mention of matters concerning access
to Jadhav, is to be found in a note verbale of 21 March 2017, wherein Pakistan
stated that India’s case for consular access would be considered in light of India’s
response to Pakistan’s request for assistance in its investigation process.
3
11) The 21 March 2017 note verbale was preceded by a purported “request” on 23
January 2017 from Pakistan for assistance from India in the matter of
“investigation” relating to a purported criminal complaint registered by its
authorities on 8 April 2016.
12) The note verbale, of 21 March 2017, facially, constitutes denial of India’s request
for consular access.
13) In the interregnum, it appears that some charges were framed based substantially,
if not solely, on a purported confession by Jadhav, and that Jadhav was “tried” by
a Military Court convened under the Pakistan Army Act, 1952. Significantly,
Pakistan has steadfastly refused to make public, or even disclose to India, the
“charges” or the “evidence” against Jadhav, or even the text of the “judgment” of
the purported Military Court that “tried” Jadhav, including that of the purported
appellate Court.
14) Even after the conclusion of the “trial” by a purported Military Court, consular
access to Jadhav was not granted. From the moment of Jadhav’s arrest, through to
his conviction, and beyond, the conduct of Pakistan has been marked by opacity.
15) India does not have any formal information as to whether Jadhav filed an appeal,
and if so, in what manner and in what circumstances, including any legal
representation afforded to Jadhav. From recent information in public domain,
India learns that an appeal filed by Jadhav was purportedly dismissed, and that a
mercy petition filed by Jadhav is now pending before the Chief of Army Staff,
Pakistan.
16) Jadhav’s mother, in order to file an appeal, sought access to the records of the
trial, but her attempts were in vain. Nonetheless, she filed an appeal, and sought a
visa to travel to Pakistan along with her husband (Jadhav’s father), to pursue her
appeal, and to meet her son, who by now was on death row. Applications for grant
of visa were submitted on 25 April 2017, but no visa has been granted.
4
17) Article 36 of the Vienna Convention, in plain language, casts an unconditional
obligation upon Pakistan to grant consular access to Jadhav, admitting of no
exceptions, whether in relation to rights conferred upon the individual Jadhav,
and/or to India’s rights. Pakistan has deliberately breached its obligations under
Article 36 of the Vienna Convention.
18) The jurisprudence on ‘human rights’, as it has evolved, especially after the coming
into force of International Covenant on Civil and Political Rights (ICCPR),
recognises Article 36 of the Vienna Convention as an inextricable constituent in
the ‘due process’ rubric. A vital element of due process is the right to an effective
defence against criminal charges, and to a fair and impartial trial, in which the
accused is represented by a lawyer of his choice. This is the due process
guarantee, whether viewed in the context of ‘minimum standards’, or through the
prism of Article 14 of the ICCPR.
19) Article 36, by creating the mechanism of consular access, enables the sending
State to help its national realise the promise of due process. The place of Article
36 in the rubric of the due process guarantee must inform its interpretation.
20) The construction of Article 36, in this context, must also inform the application of
the principles of State responsibility in fashioning remedies, including that of
restitutio in integrum. Remedies for the violation of multilateral treaties must be
effective and complete. As Article 36 is now considered a part of the rubric of due
process, the remedy for violation of Article 36 must be such as to ensure that the
failure of due process, occasioned by violation of Article 36 of the Vienna
Convention, is effectively remedied, fully and completely.
21) The use of Military Courts for the trial of civilians has been deprecated as
violative of due process standards. A fortiori, the trial of foreign national civilians
by Military Courts, is per se violative of the ICCPR, and also of the minimum
standards recognised as principles of international law erga omnes.
5
22) The violation has two dimensions, one actionable as violation of the ICCPR per
se, and the other as a factor in applying principles of State Responsibility to
violations of other Conventions or Treaties or principles of International law.
23) The first dimension is a challenge to actions of the receiving State for violation of
provisions of the ICCPR per se, where remedies are available for such violations
either before bilateral or multilateral tribunals created under specific treaties, or
where this Court has compulsory jurisdiction under Article 36(2) of the Statute of
this Court.
24) The second dimension is where in the moulding of relief for the violation of
Article 36, the review and reconsideration by a Military Court would not be
considered sufficient reparation. A remedy that considers it sufficient discharge of
State Responsibility, for addressing a breach of Article 36, to direct review and
reconsideration by a Military Court would also tend to legitimise a procedure that
per se violates Article 14 of the ICCPR.
25) As the legal regime in Pakistan does not admit of solutions consistent with Article
14 of the ICCPR and the minimum standards, the principles of State
Responsibility that demand adequate reparation for a serious breach of a treaty,
would demand that the accused Jadhav be released forthwith. As violation of
Article 36 has been occasioned on account of opacity that surrounds the working
of a Military Court, an effective remedy by way of restitution must necessarily
result, as a first step, in annulment of the “conviction”. But this would be
incomplete, without considering the way forward. If the legal regime under which
a fresh trial were held is incapable of remedying the Article 36 violations, in
manner that would make the remedy meaningful and real, then in the extreme
facts and circumstances of the case, and particularly in the light of the conduct of
Pakistan, and considering that Pakistan claims Jadhav’s conviction is founded
upon a purported confession, due process standards, whether seen as the minimum
standards recognised in international law or as standards established by the
ICCPR, must inform the interpretation of Article 36, and thus the remedies for its
violation would demand that the accused Jadhav be released forthwith.
6
II. JURISDICTION
26) India has brought the present case against Pakistan before this Court for violation
of the Vienna Convention, based on the jurisdiction of this Court under Article 40,
paragraph 1 of the Statute of the Court, read with Article 38 of the Rules of the
Court, and Article 1 of the Optional Protocol.
27) Article 40, paragraph 1 of the Statute of the Court confers upon this Court the
exclusive and compulsory jurisdiction to decide “all matters specially provided
for… in Treaties and Conventions in force”.
28) India and Pakistan are members of the United Nations, and thus ipso facto parties
to the Statute of the International Court of Justice. India and Pakistan are also
parties to the Vienna Convention and the Optional Protocol. Both States have
accepted the Vienna Convention and the Optional Protocol, without notifying any
reservation.
29) Article 1 of the Optional Protocol, stipulates:
“Disputes arising out of the interpretation or application of the
Convention shall lie within the compulsory jurisdiction of the International
Court of Justice and may accordingly be brought before the Court by an
application made by any party to the dispute being a Party to the present
Protocol.”
30) Both India and Pakistan have also accepted the compulsory jurisdiction of the
Court under paragraph 2 of Article 36 of the Statute of the Court, subject to
declarations in which “they recognise as compulsory ipso facto and without
special agreement, in relation to any other state accepting the same obligation,
the jurisdiction of the Court….”, and specifically in legal disputes relating to,
amongst other things, interpretation of treaties or questions of international law.
7
31) Article 36 of the Vienna Convention, reads thus:
“Communication and contact with nationals of the sending State
1.With a view to facilitating the exercise of consular functions relating to
nationals of the sending State:
(a) consular officers shall be free to communicate with nationals of the
sending State and to have access to them. Nationals of the sending State
shall have the same freedom with respect to communication with and
access to consular officers of the sending State;
(b) if he so requests, the competent authorities of the receiving State shall,
without delay, inform the consular post of the sending State if, within its
consular district, a national of that State is arrested or committed to
prison or to custody pending trial or is detained in any other manner. Any
communication addressed to the consular post by the person arrested, in
prison, custody or detention shall be forwarded by the said authorities
without delay. The said authorities shall inform the person concerned
without delay of his rights under this subparagraph;
(c) consular officers shall have the right to visit a national of the sending
State who is in prison, custody or detention, to converse and correspond
with him and to arrange for his legal representation. They shall also have
the right to visit any national of the sending State who is in prison, custody
or detention in their district in pursuance of a judgement. Nevertheless,
consular officers shall refrain from taking action on behalf of a national
who is in prison, custody or detention if he expressly opposes such action.
2.The rights referred to in paragraph 1 of this article shall be exercised in
conformity with the laws and regulations of the receiving State, subject to
the proviso, however, that the said laws and regulations must enable full
effect to be given to the purposes for which the rights accorded under this
article are intended.”
32) India is invoking jurisdiction under paragraph 1 of Article 36 of the Statute of the
Court on the basis of a Treaty (i.e. the Optional Protocol) that expressly provides
for the jurisdiction of this Court, and does not seek to invoke the jurisdiction of
this Court under paragraph 2 of Article 36. As such, the declarations made by
8
India and Pakistan under paragraph 2 of Article 36, or any reservations in such
declarations, have no application.
33) The issue of jurisdiction of this Court under Article 36, paragraph 1 being
independent of any limitations in its jurisdiction under Paragraph 2, is no longer
res integra. In the Case Concerning Border and Transborder Armed Actions
(Nicaragua v Honduras)3, this Court held that the Pact of Bogota created
jurisdiction independent of the declarations of compulsory jurisdiction as may
have been made under paragraph 2 of Article 36.
34) In the Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan),
apart from questioning the competence of this Court under Article 84 of the
Chicago Convention and Article II, Section 2, of the Transit Agreement (termed,
"the: jurisdictional clauses of the Treaties"), Pakistan also relied on India’s
reservation to acceptance of this Court’s compulsory jurisdiction under paragraph
2 of Article 36. This Court held:
“the various objections made to the competence of the Court cannot be
sustained, whether they are based on the alleged inapplicability of the
Treaties as such, or of their jurisdictional clauses. Since therefore the
Court is invested with jurisdiction under those clauses and, in
consequence …, under Article 36, paragraph 1, and under Article 37, of
its Statute, it becomes irrelevant to consider the objections to other
possible bases of jurisdiction”4.
35) In the La Grand5 case, this Court accepted – albeit not a matter put in issue – that
the application filed by the Federal Republic of Germany for violation of the
Vienna Convention was based on the jurisdiction of this Court under paragraph 1
of Article 40, of the Statute of the Court and on Article I of the Optional Protocol.
3 Case Concerning Border and Transborder Armed Actions (Nicaragua v Honduras), Jurisdiction and
Admissibility, Judgment, ICJ Reports 1988, p.69, para 41.
4 Appeal Relating to the Jurisdiction of the ICAO Council, (India v. Pakistan), Judgment, ICJ Reports 1972,
p.46, para 25.
5 LaGrand (Germany v. United States of America), Judgment, ICJ Reports 2001, p.466.
9
Similarly, in the Avena6 case, this Court noted in its judgment that Mexico based
the jurisdiction of the Court on Article 36, paragraph 1 of the Vienna Convention
and on Article I of the Optional Protocol concerning compulsory settlement of
disputes.
36) The Optional Protocol, read with Article 36 paragraph 1, confers upon the Court
the jurisdiction to remedy the violations of the Vienna Convention. Thus, the
jurisdiction of this Court to entertain applications for relief in cases of breach of
the Vienna Convention, is immutable.
37) If necessary, this Court would also examine the actions of the domestic courts of
the receiving State in the light of international law7. The discussion in paragraph
34 of the judgment in the Avena case is dispositive of the issue of the jurisdiction
of the Court to grant appropriate restitution. This Court held that “the Court is
unable to uphold the contention of the United States that, even if the Court were to
find that breaches of the Vienna Convention have been committed by the United
States, of the kind alleged by Mexico, it would still be without jurisdiction to order
restitutio in integrum as requested by Mexico…. Where jurisdiction exists over a
dispute on a particular matter, no separate basis for jurisdiction is required by the
Court in order to consider the remedies a party has requested for the breach of
the obligation. Whether or how far the Court may order the remedy requested by
Mexico are matters to be determined as part of the merits of the dispute.”8
38) It must follow that once it is established that there has been a violation of Article
36 of the Vienna Convention, then the relief would have to be modulated applying
settled principles of State Responsibility – the “…principle of international law
that the breach of an engagement involves an obligation to make reparation in an
adequate form.” (Factory at Chorzow, Jurisdiction, 1927, P.C.I.J., Series A, No.9,
p.21). What constitutes “reparation in an adequate form” clearly varies
depending upon the concrete circumstances surrounding each case and the
6 Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, ICJ Reports 2004,
p.12.
7 Ibid., para 28.
8 Ibid., para 34.
10
precise nature and scope of the injury, since the question has to be examined from
the viewpoint of what is the “reparation in an adequate form” that corresponds to
the injury”.9
39) Article 36 of the Vienna Convention is now recognised, in international law
jurisprudence, as a measure beyond the norms and conventions applicable to
dealings between two States – it is now recognised as conferring a valuable right
upon an accused who is a national of the sending State, and is detained and put to
trial on criminal charges in the receiving State, to consular access, which is a vital
step in the direction of ensuring a fair trial that accords to the “due process”
standards in international law. Article 14 of the ICCPR and Article 36 are
increasingly viewed as two strands of the same rubric of fairness, and thus a trial
conducted where a national of the sending State is denied consular access by the
receiving State is ex hypothesi a trial that does not conform to the norms of due
process.
40) In fashioning the relief that would meet with the established standard of State
Responsibility, this Court would take into account the nature and extent of
violations, the degree of injury suffered on account of the violations, and all other
relevant facts. This Court would have jurisdiction to examine these facts, and
establish in the facts of a case, the consequences of the breach of Article 36, and
the extent to which the trial distanced itself from the norms of due process. The
principles of State Responsibility have to be applied in manner that the remedy
also conforms to what are now settled principles of human rights recognised in
international law.
41) As set forth in Section III, the circumstances in which Jadhav was “arrested”
remain shrouded in mystery. India believes that Jadhav was kidnapped from Iran.
Jadhav was then show to have been arrested in Baluchistan, and has since then
been in the custody of the Pakistan Army. Besides, from the nature of the
allegations levelled against him, and public statements by high functionaries
9 Ibid., para 119.
11
against him, it is obvious that Jadhav is being held in an extremely hostile
environment. The fact that a Bar Association passed a resolution (Annex 11)
threatening sanction against any member lawyer who agreed to appear for Jadhav,
is testimony to the public hatred to which Jadhav is subject.
42) The atmosphere has been so vitiated that even the Order of this Court was
criticised as impinging on Pakistan’s sovereignty in a reported statement issued by
the Lahore High Court Bar Association of Pakistan, which condemned the
Provisional Measures Order by this Court stating that “Pakistan’s Judiciary
possesses all the rights for Jadhav’s execution” (Annex 11).
43) Unsurprisingly, Jadhav is supposed to have “confessed” to alleged crimes. Jadhav
was then tried by a Military Court. As detailed in the later Section, 95% of
civilians tried by the Military Court of Pakistan have “confessed”. While the
information of his fate is released by the administration from time to time, neither
the charges, nor the evidence, have seen the light of day.
44) In such circumstances, where Jadhav was held incommunicado and continues to
be so held, and was compelled to run his so-called defence in the circumstances,
without consular access, the trial has been farcical. The denial of the protection of
Article 36 has destroyed any sanctity which a military trial may otherwise have
had. In any event, Military Courts, when they try civilians, are highly suspect.
45) All these dimensions of the violation of Article 36, and its consequences, will be
required to be examined by this Court, in order to fashion an appropriate remedy
that would meet the high standards of international law in the matter of human
rights, of which Article 36 is increasingly considered a significant element.
46) Finally, the repeated mention by Pakistan of a bilateral Agreement between India
and Pakistan10 has no bearing on the jurisdiction of this Court. The interplay
between the Vienna Convention and the bilateral Agreement, even if raised by
Pakistan, would involve interpretation of the Vienna Convention, and thus this
10 A Bilateral Agreement relating to certain facets of Consular Access and related matters was entered into in
2008.
12
Court would have the jurisdiction to decide all issues, including any such issue
under Article 36, Paragraph 1 of the Statute of the Court read together with the
Optional Protocol.11
11 This issue is dealt with separately in the Section V dealing with the 2008 Agreement.
13
III. STATEMENT OF FACTS
47) An Indian national, Mr. Kulbhushan Sudhir Jadhav (Jadhav) was “arrested” on 3
March 2016.
48) On 25 March 2016, India was informed of this “arrest”, when the Foreign
Secretary, Pakistan raised the matter with the Indian High Commissioner in
Islamabad.
49) On that very day, 25 March 2016, India sought consular access to Jadhav.
50) Although Pakistan was bound to grant consular access, without delay, India’s
request did not evoke any response.
51) On 30 March 2016, India sent a reminder reiterating its request for consular access
to Jadhav, at the earliest. Thirteen reminders were sent by India on 6 May 2016,
10 June 2016, 11 July 2016, 26 July 2016, 22 August 2016, 3 November 2016, 19
December 2016, 3 February 2017, 3 March 2017, 31 March 2017, 10 April 2017,
14 April 2017 and 19 April 2017 (Annex 1.3 to 1.15).
52) Almost ten months after India’s first request for consular access, on 23 January
2017, India received a request (Annex 2) from Pakistan claiming to seek
assistance in the investigation of what it described as “FIR No. 6 of 2016”. Under
the Pakistan Code of Criminal Procedure, the expression “FIR” is an acronym for
the expression “First Information Report”, which is a report registered when the
police is first informed of the commission of a crime. The request pertained to a
criminal complaint registered against an Indian National, apparently on 8 April
2016. It is significant that this letter acknowledged an “FIR” had been registered
against “an Indian national”. The nationality of Jadhav has not ever been in
question.
53) On 3 February 2017 (Annex 1.10), India protested in a demarche against the
continued denial of consular access, despite Jadhav’s Indian nationality affirmed
by Pakistan. The letter from Pakistan seeking assistance portrayed a purported
14
“confession” by Jadhav, which was the basis of, or at least a significant part of the
case against him. India, therefore, raised the concern of Jadhav’s safety, pointing
out that:
“questions about his treatment in Pakistan’s custody continue to mount,
given especially his coerced purported confession, and the circumstances of
his presence in Pakistan remain unexplained.”
54) On 3 March 2017, India reminded Pakistan of its various requests, including its
demarche of 3 February 2017, and again requested consular access.
55) India received another note verbale dated 21 March 2017 (Annex 3) from
Pakistan. In this note verbale, Pakistan stated:
“the case for the consular access to the Indian national…shall be
considered in the light of Indian side’s response to Pakistan’s request for
assistance in investigation process and early dispensation of justice”.
56) India responded to the note verbale on 31 March 2017 (Annex 1.12) pointing out
that,
“consular access to Mr. Jadhav would be an essential pre-requisite in order
to verify the facts and understand the circumstances of his presence in
Pakistan.”
57) Jadhav was kidnapped from Iran, where he was residing and carrying on business
after retiring from the Indian Navy. The circumstances surrounding his presence
in Pakistan are not clear, and there has been a stoic, almost deafening, silence of
the Pakistan authorities on these issues. Beyond asserting that Jadhav has been
“arrested”, there is no further clarification of the circumstances of his arrest. These
matters require verification, the first step towards which would have been to
interview Jadhav, upon obtaining consular access.
15
58) A press release issued by Inter Services Public Relations (Pakistan)12 on 10 April
2017, about Mr. Jadhav conveyed:
“The spy has been tried through Field General Court Martial (FGCM)
under Pakistan Army Act and awarded death sentence. Today COAS, Gen.
Qamar Javed Bajwa has confirmed his death sentence awarded by FGCM.”
(Annex 4)
59) India received, on 10 April, 2017, another note verbale from the Ministry of
Foreign Affairs, Islamabad, conveying that consular access shall be considered in
the light of India’s response to Pakistan’s request (Annex 5) for assistance in the
investigation process.
60) India responded to this note verbale on 10 April 2017 itself (Annex 1.13),
pointing out that such offer received after the death sentence had been confirmed,
as per information issued in a press briefing by Pakistan, “underlines the farcical
nature of the proceedings and so-called trial by a Pakistan military court
martial”. India reiterated that despite repeated requests, consular access had not
been granted.
61) On 14 April 2017, a press statement made by the Adviser to the Prime Minister of
Pakistan on Foreign Affairs (Annex 6), established the following facts:
i) After Jadhav’s “arrest”, a “confessional video statement” was recorded on 25
March 2016. The FIR was, however, registered only on 8 April 2016.
ii) The accused was interrogated in May 2016, and in July 2016, a confessional
statement by the accused was recorded before a magistrate.
iii) The court martial recorded the summary of evidence on 24 September 2016, and
in four proceedings, culminating on 12 February 2017, the trial was over.
iv) In the course of the trial, the accused “was allowed to ask questions from the
witnesses”, and “a law qualified field officer was provided to defend him
throughout the court proceedings”.
12 An agency of the Government of Pakistan.
16
62) Since the last round of proceedings in the case was held on 12 February 2017,
obviously, by the time of receipt of the note verbale on 21 March 2017, even
conditional consular access, which was bound to be granted upon arrest without
delay, and then in the course of the trial, offered by Pakistan had, in any event,
became meaningless, as the trial stood concluded. Nonetheless, if consular access
had been granted, it may have enabled India to assist Jadhav in seeking remedies
in appeal, although the nature of the appeal under the laws of Pakistan was
entirely non-compliant with the minimum standards of due process.
63) India states that the factual matrix set forth above, establishes incontrovertibly,
that right from the time of the “arrest” of Jadhav, Pakistan has acted in brazen
violation of the rights of the accused, and of the rights of India under the Vienna
Convention, by declining consular access throughout. Pakistan has, thus,
conducted itself in manner that constitutes egregious violation of the Vienna
Convention.
64) Following the Press Statement of 14 April 2017, India through a note verbale
issued on 14 April 2017, requested Pakistan to provide certified copies of the
“charge-sheet” and the “judgment” of the Military Court, and (once again) sought
consular access (Annex 1.14). But there was no response received by India.
65) In a further briefing on 17 April 2017, on behalf of the Government of Pakistan,
the authorised spokesperson reportedly stated that the Indian National is not
eligible for consular access, nor will he be granted consular access. (Annex 7).
No basis for such assertion by Pakistan was forthcoming. It is clear, therefore, that
the provisions of the Vienna Convention have been continually violated, and the
ongoing conduct of Pakistan remains in defiance of the provisions of the Vienna
Convention.
66) On 19 April 2017, India handed over a note verbale (Annex 1.15) to Pakistan,
through its High Commission in New Delhi, once again seeking copies of the
“charge sheet”, the “proceedings” of the Court, the summary of “evidence” and
17
the purported order of “conviction”. In addition to once again seeking consular
access, India also asked Pakistan, to:
i) Relay the procedure for appellate remedies,
ii) Facilitate appointment of a defence lawyer, who may be put in contact with the
High Commission of India in Islamabad,
iii) Provide certified copies of medical reports,
iv) Issue visitor visas to members of family of Jadhav to visit Pakistan, so as to
enable pursuit of legal remedies, available under the Pakistan Army Act 1952
(howsoever circumscribed these may prove).
67) Pakistan has, in a press briefing on April 20, 2017 (Annex 9), referred to the
bilateral Agreement on Consular Access between India and Pakistan, concluded in
2008 (Annex 10) and contended that the matter of consular access between the
two countries is exhaustively dealt with in this bilateral Agreement.
68) Pakistan’s position articulated above lacks merit, both because of the express
provisions of the Vienna Convention, as well as the plain language of the
Agreement on Consular Access signed between the two countries on 21 May
2008.13
69) The elderly parents of Jadhav applied for visas on 25 April 2017, through the
offices of the Ministry of External Affairs of the Union of India. No response has
been received on these applications.
70) The mother of Jadhav sought to file an appeal under Section 133(B) and a petition
to the Federal Government of Pakistan under Section 131 of the Pakistan Army
Act, 1952. The appeal and the petition were handed over by the Indian High
Commissioner in Islamabad to Pakistan’s Foreign Secretary in Islamabad on 26
April 2017. During this meeting, the representatives of India once again sought
consular access to Jadhav (Annex 1.16). The appeal and petition were prepared,
based on information available in public domain, as no particulars of the
“charges”, the “evidence” or the “judgment” have been formally provided by
13 This issue is dealt with in Section V.
18
Pakistan. Without consular access, and access to all relevant information and
documents, no effective appellate remedy is capable of being availed, and any
right to appeal would be liable to be classified as farcical, as was the “trial” by a
Military Court.
71) The External Affairs Minister of India wrote a letter to the Adviser to the Pakistan
Prime Minister on Foreign Affairs on 27 April 2017 (Annex 8) in which she
reiterated India’s requests for certified copies of the charge-sheet against Jadhav,
proceedings of the Court of Inquiry, the summary of evidence in the case, the
judgment, appointment of a defence lawyer, contact details of a defence lawyer
and medical report of Jadhav. She also reiterated the request for the visa for the
parents of Jadhav. She sought the personal intervention of the Advisor, in the
matter. No response has been received to this missive.
72) On 22 June 2017, the Inter Services Public Relations (ISPR) of Pakistan
(Spokesperson of the Pakistan Military) issued a Press Release (Annex 12) stating
that Jadhav “has made a mercy petition to the Chief of the Army Staff.” The Press
Release inter alia also stated that Jadhav “had earlier appealed to the Military
Appellate Court which was rejected. Under the law he is eligible to appeal for
clemency to the COAS (which he has done) and if rejected, subsequently, to the
President of Pakistan.” The Spokesperson released a “second confessional video”,
which was purportedly ‘shot’ in April 2017 (well before this Court’s hearings on
provisional measures in May 2017) while Jadhav was in custody of the Pakistan
military.
73) India does not have any definite information of whether Jadhav filed an appeal to
the Military Appellate Court, and if so, in what manner or circumstances. Pakistan
has not disclosed to this Court, whether during the hearing on the Application for
Provisional Measures, or otherwise, about Jadhav’s purported appeal to the
Military Appellate Court in Pakistan. There is also no information about any
status of the appeal and petition relayed by the mother of Jadhav in April 2017. In
effect, Pakistan has prevented the mother of Jadhav from pursuing her appeal and
petition.
19
IV. EGREGIOUS VIOLATIONS OF THE VIENNA CONVENTION
74) Article 36 (1) (b) of the Vienna Convention confers, in language that admits of no
ambiguity, indefeasible rights to consular access to a national of the sending State,
who has been arrested, or committed to prison, or to custody pending trial, or
detained in any other manner. The Vienna Convention also confers upon the
sending State, acting through its consular officers, the right to visit its national in
prison, custody or detention, so as to converse and correspond with him, and also
to arrange for his legal representation. The access and visitation rights continue to
a national of the sending State who is in prison, custody or detention, in pursuance
of a judgment.
75) The requirements for compliance with obligations ensconced within the Vienna
Convention admit of no exception.
76) Article 36 has increasingly been recognised as a vital constituent of the overall
rubric of due process.
77) Neither the nature of the charges, nor the conduct of the sending State is relevant
in examining the allegations of the violation of Article 36. The reason is not far to
seek. Although rights are created by a Treaty, the remedy for the breach of which
may be pursued by the sending State, parallel recognition has been duly accorded
to rights enshrined for the arrested or detained national.
78) Due process, which was recognised as a facet of the international minimum
standard, is also now expressly engrafted in a multilateral Treaty – i.e., the
ICCPR, which Treaty has been signed and ratified not only by India and Pakistan,
but also by a large number of States to the extent its principles are being
recognised as general principles of international law, as a code of conduct which
must be adhered to by civilised nations.
79) Article 36, in which Treaty rights are ensconced, has evolved, following a long
history of practice. Consular access, all along in the history of diplomatic
20
relations, has been considered to be a vital element in ensuring peace and harmony
in the relationships between sovereign States, and one of the important functions
of consuls of the sending State has been to assist their nationals in the receiving
State who are subjected to arrest or detention and put on trial on criminal charges.
The Vienna Convention of 1963 crystallised existing practices, and elevated this
function of consular access to an indefeasible right. This Court has construed this
right as being conferred not merely on the sending State, but also on its national,
i.e. the individual of the sending State. The Vienna Convention has been
interpreted by this Court inter alia in its judgments in the Tehran case14, in
LaGrand15 and in Avena16. The institution of consular relations, which are
governed now under the rubric of the Vienna Convention on Diplomatic Relations
of 1961 and the Vienna Convention of Consular Relations of 1963, has also been
discussed, and its raison d’être expostulated in the judgments of this court.
80) In the 1980, the Tehran case, censuring the Government of Iran for its violations
of all established norms of consular relationships, this Court stated “Wrongfully to
deprive human beings of their freedom and to subject them to physical constraint
in conditions of hardship is manifestly incompatible with the principles of the
Charter of the United Nations, as well as with the fundamental principles
enunciated in the Universal Declaration of Human Rights. But what has above all
to be emphasized is the extent and seriousness of the conflict between the conduct
of the Iranian State and its obligations under the whole corpus of the international
rules of which diplomatic and consular law is comprised, rules the fundamental
character of which the Court must here again strongly affirm. In its Order of 15
December 1979, the Court made a point of stressing that the obligations laid on
States by the two Vienna Conventions are of cardinal importance for the
maintenance of good relations between States in the interdependent world of
today. "There is no more fundamental prerequisite for the conduct of relations
between States", the Court there said, "than the inviolability of diplomatic envoys
and embassies, so that throughout history nations of all creeds and cultures have
14 United States Diplomatic and Consular Staff in Tehran, Judgment, I.C.J. Reports 1980, p. 3.
15 LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 466.
16 Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, I.C.J. Reports 2004, p.
12.
21
observed reciprocal obligations for that purpose." The institution of diplomacy,
the Court continued, has proved to be "an instrument essential for effective cooperation
in the international community, and for enabling States, irrespective of
their differing constitutional and social systems, to achieve mutual understanding
and to resolve their differences by peaceful means" (I.C.J. Reports 1979, p.
19).”17
81) In the LaGrand case, Germany brought a complaint for violation of Article 36
(1)(b) by the US authorities in relation to German nationals, who were arrested
and put on trial. This Court held “…The Court notes that Article 36, paragraph 1
(b), spells out the obligations the receiving State has towards the detained person
and the sending State. It provides that, at the request of the detained person, the
receiving State must inform the consular post of the sending State of the
individual's detention "without delay". It provides further that any communication
by the detained person addressed to the consular post of the sending State must be
forwarded to it by authorities of the receiving State "without delay". Significantly,
this subparagraph ends with the following language: "The said authorities shall
inform the person concerned without delay of his rights under this subparagraph"
(emphasis added). Moreover, under Article 36, paragraph 1 (c), the sending
State's right to provide consular assistance to the detained person may not be
exercised "if he expressly opposes such action". The clarity of these provisions,
viewed in their context, admits of no doubt. It follows, as has been held on a
number of occasions, that the Court must apply these as they stand (see
Acquisition of Polish Nationality, Advisory Opinion, 1923, P.C.I.J., Series B, No.
7, p. 20; Competence of the General Assembly for the Admission of a State to the
United Nations, Advisory Opinion, I.C.J. Reports 1950, p. 8; Arbitral Award of 31
July 1989, Judgment, I.C.J. Reports 1991, pp. 69-70, para. 48; Territorial Dispute
(Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994, p. 25, para. 51).
Based on the text of these provisions, the Court concludes that Article 36,
paragraph 1, creates individual rights, which, by virtue of Article 1 of the
17 United States Diplomatic and Consular Staff in Tehran, Judgment, I.C.J. Reports 1980, p. 3, para 91.
22
Optional Protocol, may be invoked in this Court by the national State of the
detained person. These rights were violated in the present case.”18
82) In the 2004 Avena judgment, delivered on the application by Mexico based on
allegations of violations of Article 36 of the Vienna Convention by the United
States of America, this Court held that “The Court would recall that it is in any
event essential to have in mind the nature of the Vienna Convention. It lays down
certain standards to be observed by all State parties, with a view to the
"unimpeded conduct of consular relations", which, as the Court observed in 1979,
is important in present-day international law "in promoting the development of
friendly relations among nations, and ensuring protection and assistance for
aliens resident in the territories of other States" (United States Diplomatic and
Consular Staff in Tehran (United States of America v. Iran), Provisional
Measures, Order of 15 December 1979, I.C.J. Reports 1979, pp. 19-20, para. 40).
Even if it were shown, therefore, that Mexico's practice as regards the application
of Article 36 was not beyond reproach, this would not constitute a ground of
objection to the admissibility of Mexico's claim. The fifth objection of the United
States to admissibility cannot therefore be upheld.”19 [Emphasis Added]
83) In paragraph 40 of the Avena judgment, this Court held “It would further observe
that violations of the rights of the individual under Article 36 may entail a
violation of the rights of the sending State, and that violations of the rights of the
latter may entail a violation of the rights of the individual. In these special
circumstances of interdependence of the rights of the State: and of individual
rights, Mexico may, in submitting a claim in its own name, request the Court to
rule on the violation of rights which it claims to have suffered both directly and
through the violation of individual rights conferred on Mexican nationals under
Article 36, paragraph 1 (b)….”20
18 LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 466, para 77.
19 Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, I.C.J. Reports 2004,
p. 12, para 47.
20 Ibid., para 40.
23
84) The rights of consular access and assistance under Article 36 have, thus, been
recognised as not only vesting in the sending State, but also with the individual
who was subjected to arrest, custody, detention or trial without due process.
85) There are, in some jurisdictions, fora created under independent Treaties where
the violation of human rights, including rights enshrined under the Vienna
Convention, may be asserted, and remedies sought by the national21. Nonetheless,
this Court has recognised the right of the sending State to seek reparations and
remedies on behalf of the individual who has been subjected to arrest and put on
trial in breach of the right to consular access and assistance guaranteed under the
Vienna Convention.
86) Pakistan’s conduct in refusing consular access despite repeated reminders by the
sending State, i.e. India, plainly violates obligations under Article 36. It is obvious
that Pakistan has violated, and continues to violate the Vienna Convention,
knowingly and wilfully. In its note verbale of 21 March 2017, Pakistan expressly
stated that the request for consular access would be considered in the light of
India’s response to the request for assistance and investigation. This establishes
that Pakistan was aware of the institution of consular access, but chose to deny it
in brazen defiance of the Vienna Convention.
87) Request for assistance in investigation, amongst sovereign States, is the subject of
mutual legal assistance treaties, which are bilateral. India invited Pakistan to enter
into a Mutual Legal Assistance Treaty (MLAT), but Pakistan has not responded.
India has a number of requests pending with Pakistan for investigation into terrorrelated
offences committed in India. While these issues relating to the absence of
an MLAT are irrelevant to the present case, in any event, purported denial of legal
assistance in investigation of crime does not clothe the receiving State with the
authority to reject requests for consular access under Article 36 of the Vienna
Convention.
21 For example, the Inter-American Court of Human Rights.
24
88) It is India’s assertion that in the present case, that the far-reaching consequences
of the denial of consular access have been so grave, that the entire trial and
conviction of Jadhav is rendered a travesty, and a blatant violation of the due
process.
25
V. 2008 BILATERAL AGREEMENT ON CONSULAR ACCESS -
INDIA & PAKISTAN
89) In a press briefing by a Spokesperson of the Pakistan government, on 20 April
2017 (Annex 9) in response to a question from a journalist (referring to India’s
request for consular access) the spokesperson stated “Then regarding consular
access we have said this earlier also that we have bilateral agreement on consular
access and according to Art IV, in all such cases as the one of commander
Kulbhushan the request of this nature would be decided on the basis of merits”.
90) In the first instance, the statement that they have also “said this earlier” would at
best be possibly referable to some public utterances – in no official communique
to the Government of India has Pakistan ever suggested that consular access to
Jadhav was circumscribed by the 2008 Agreement.
91) In any event, the question of consular access sought under Article 36 being denied
or being subjected to the provisions of some bilateral treaty does not arise. Article
36 is the provision of a multilateral treaty, and bilateral treaties covering the same
subject matter can be accommodated as long as they are Treaties “confirming, or
supplementing or extending or amplifying the provisions..” of the Vienna
Convention. This is the clear mandate of Article 73 of the Vienna Convention.
92) The 2008 Agreement, was entered into for “furthering the objective of humane
treatment of nationals of either country arrested, detained or imprisoned in the
other country….”, and by which the two signatory States, India and Pakistan,
agreed to certain measures. These included the release and repatriation of persons
within one month of confirmation of their national status and completion of
sentences. The Agreement recognised that in case of arrest, detention or sentence
made on political or security grounds, each side may examine the case on its own
merits, and that in special cases which call for or require compassionate and
humanitarian considerations, each side may exercise its discretion subject to its
laws and regulations to allow early release and repatriation of persons. India does
not seek early release or repatriation of Jadhav, as contemplated by the 2008
Agreement.
26
93) The existence of a bilateral agreement, some of the provisions of which may
appear to supplement or amplify the provisions of the Vienna Convention, is thus
irrelevant to the assertion of rights of consular access under the Vienna
Convention. This is also consistent with Article 41 of the Vienna Convention on
the Law of Treaties, 1969 which recognises the principle that two or more parties
could modify the terms of the Treaty, as long as the Treaty permits such
modification, or at least does not prohibit such modification, and that any such
modification cannot relate to a provision, the derogation from which is
incompatible with the effective execution of the object and purpose of the Treaty
as a whole.
94) The Vienna Convention creates specific rights in favour of States and in favour of
the nationals of Sending States in relation to consular access – and creates
corresponding obligations upon Receiving States that arrest, detain or try and
sentence nationals of other member States. Bilateral treaties which create
obligations can only supplement the provisions of the Vienna Convention, and
cannot modify these rights and corresponding obligations which form the object
and purpose of Article 36 of the Vienna Convention.
95) The history of the Vienna Convention also establishes that the Vienna Convention
was deliberately and consciously rendered non-derogable by bilateral
agreements/treaties.
96) Prior to the Vienna Convention, there were a host of bilateral treaties
encompassing areas of consular relationship. The Vienna Convention was
intended to be an exhaustive rubric of consular access, and any further bilateral
agreements/treaties were accommodated only to supplement, extend or amplify
the provisions of this Convention.
97) The drafting history of Article 73 of the Vienna Convention also establishes that
different approaches were discussed, and in fact it was India which advocated the
narrow approach in relation to bilateral agreements. The approach which placed
bilateral agreements above a multilateral convention was criticised by the Indian
delegate as it would be a measure “impairing the value of a multilateral
27
convention and obstructing the progressive development of international
law…”.22
98) The final version which was accepted, described as the “six power amendment”,
without the explicit duty to review and revision was finally adopted unanimously.
The result is that, as far as future bilateral consular treaties are concerned, “they
are valid only insofar as they confirm, supplement, extend, or amplify the
provisions…” of the Vienna Convention.23
99) There is nothing in the language of the 2008 Agreement which would suggest that
India or Pakistan ever intended to derogate from Article 36 of the Vienna
Convention. But even if there were any such language, it would have to yield to
the provisions of the Vienna Convention.
22 Consular Law and Practice by Luke T. Lee and John Quigley, Third edition, page 568-9.
23 Ibid., page 571.
28
VI. HISTORY OF CONSULAR ACCESS
100) In recognition of the reality that an individual, prosecuted in a foreign country,
is bound to encounter serious difficulties in defending a criminal charge, which
may stem from unfamiliarity with the law, with language, or even the “risk of
discrimination – overt or subtle – for the foreign national”,24 the “protection of
nationals when they are abroad is accepted as an important function of
government”.25
101) Providing assistance to sending State nationals is a major function for sending
State Consuls. The assistance that they provide “to nationals who find
themselves in situations of difficulty is referred to as “protection” activity.”26
“Protection of nationals is a consul’s most basic function. While this function
has long been important, in recent years it has assumed an even greater share
of a consul’s time… .”27 “A major protective function of consuls is to
communicate with nationals who are in pre-trial detention on a criminal
charge, or who have been sentenced to prison after being convicted. This
function has assumed growing importance as a result of the growth in travel for
employment, business and pleasure.”28 In addition, “[c]onsular access to
nationals in detention has long been a feature of consular practice.”29
102) Significantly, the Preamble to the Vienna Convention begins by recalling that
consular relations have been established between peoples since ancient times.
“The efforts to conclude a multilateral treaty on consular relations was part of
24 The Law of Consular Access, A Documentary Guide, John Quigley, William J. Aceves and S. Adele Shank,
page 1.
25 Ibid., page 3.
26 Ibid., page 6.
27 Consular Law and Practice, Third Edition, Luke T Lee and John Quigley, page 116.
28 Ibid., page 139.
29 Ibid., page 140.
29
the effort by the newly formed United Nations to promote the development and
codification of international law.”30
103) The Vienna Convention reflects the efforts of 92 States that participated in the
conference of March-April 1963. Some Communist states were slow to ratify
and/or accede. The USSR acceded only in 1989 – one of its objections was that
“it created a system for protection of arrested co-nationals that, in the Soviet
view, left room for the receiving State to block access of a consul to a conational”
31. While, by 2008, 171 States had ratified or acceded to the
Convention, currently, 179 States are parties to the Convention.
104) The Vienna Convention has come to be regarded as an example of a law-making
Treaty. The principles of the Vienna Convention are considered as establishing
the contents of the consular function “not only for States Parties to the
Convention pursuant to the rule pacta sunt servanda, but also for non-parties in
view of the metamorphosis of most of the substantive rules of the Convention
into customary rules of international law, thus binding on parties and nonparties
alike”.32
105) The history of the drafting of the Vienna Convention bears testimony to the
importance which nations placed upon the provisions of Article 36. Its
significance is also underscored by the fact that a concern (expressed by the
USSR) that such a provision would elevate the Treaty provision over domestic
law, and an amendment placing domestic law over Article 36 was rejected33.
The Harvard research draft of the Convention concluded “that a receiving State
is required under customary law to allow a consul to visit nationals ‘when they
are imprisoned or detained by authorities of the receiving State’ ”.34
30 Ibid., page 21.
31 Ibid., page 23.
32 Ibid., page 111-112.
33 The Law of Consular Access, A Documentary Guide, John Quigley, William J. Aceves and S. Adele Shank,
page 9-10.
34 Consular Law and Practice, Third Edition, Luke T Lee and John Quigley, page 142.
30
106) Countries have issued instructions to consuls, which stress the importance of
assisting incarcerated nationals. The Canadian Instruction explains the
circumstances which may require particular attention – and it is directly relevant
in the present case. It states – “The system of justice in some countries may be
complex, slow-moving or possibly venal. Local laws may differ greatly from our
own and, with the addition of language barriers, may be difficult for Canadians
to understand.”35
107) A consul arbitrarily refusing to assist, in particular, an arrested national, would
be considered to be in breach of duty by the sending State. It is on this principle
that in actions in domestic courts, brought on behalf of nationals of sending
States, have concluded in courts in the United Kingdom and Canada
establishing that governments bear an obligation to assist their nationals.36
108) Article 36 sets out, in language of clarity and precision, the principles applicable
to consular access, in the matter of the protective function discharged by
consuls. The wisdom of such a protective function, sanctified through decades
of practice can be demonstrated with reference to the facts in the present case.
109) The ubiquitous “confession”, is the hallmark of processes by Military Courts in
Pakistan37. The ‘arrest’ of Jadhav, viewed in this backdrop, and the ‘confession’
purportedly recorded after his arrest, in circumstances where Pakistan
admittedly failed to inform India “without delay” of Jadhav’s arrest, and where
Jadhav remains held incommunicado, amidst versions of his so-called
“confession” floating in social media, establishes a clear disregard for
obligations to India. Other ‘evidence’, purportedly produced before the Military
Court, remains zealously preserved and undisclosed. ‘Charges’ brought, or the
35 Ibid., page 147.
36 This was in the context of a national incarcerated by the United States in Guantánamo Bay, Cuba.
37 This issue is elaborated upon in Section XI.
31
‘verdict’ itself remain shrouded in mystery, and are steadfastly not being shared
by Pakistan with India, despite conclusion of legal processes38.
110) Based on statements made by and/or the communications received by India
from Pakistan, it would appear that registration of the commission of a criminal
offence originally occurred vide FIR 06/2016 registered on 8 April 2016,
followed by FIR no. 22/2016 registered on 6 September 2016, both of which
described Jadhav as an Indian national, and asserted that these were premised on
“… his involvement in espionage and terrorist activities in Pakistan”.
111) The first formal reaction by Pakistan, after the large number of India’s requests
for consular access, received on 23 January 2017, refers to two criminal cases
registered, for which Pakistan claimed entitlement to assistance for carrying on
criminal investigation in India. Pakistan steered clear of any mention of
consular access, while it sought India’s cooperation in its ‘investigation’. A bare
reading of the letter of request for assistance (Annex 2) betrays an attempt at
posturing, rather than a serious request for assistance relating to any
investigations.
112) The tenor of such communication of 23 January 2017, only served to heighten
India’s concerns over Jadhav’s well-being, and the state of play in relation to
the “investigation” into the criminal cases registered against him. These
concerns were exacerbated by the assertion of Jadhav having “confessed” to
crimes.
113) The assertion by Pakistan regarding Jadhav’s ‘confession’ is liable to be viewed
in the backdrop of the Report of the International Commission of Jurists to the
UN Human Rights Committee (considered in its 120th session in Geneva, in July
2017) which had noticed that “159 out of the 168 civilians (95%) whose
convictions have been publicly acknowledged by the military have allegedly
38 A recent press release suggested that Jadhav’s appeal stands dismissed, and a mercy petition is pending
before the Army Chief.
32
“confessed” to the charges.”39 Family members of some of those individuals
convicted by military courts petitioned the Supreme Court of Pakistan, in which
they, amongst other things, questioned the voluntariness of the ‘confessions’.
The Report records that in August 2016 the Pakistan Supreme Court dismissed
all these petitions, reiterating “the limitations of its judicial review jurisdiction,
and noted that since the “confessions” were recorded by a magistrate and were
not retracted, they stood “proved” ”.40 The Commission, in its report,
commented on the Supreme Court’s treatment of the questions regarding the
veracity and voluntariness of the confessions, noting that in relation to
confessions in military trials, the approach of the court was markedly different
from its treatment of these issues in the context of cases before civilian courts.41
It noted that since January 2017, 161 people had been given the death penalty
premised on evidence recorded by way of a “confession”, by military courts.42
114) The institutional bias against Jadhav is starkly apparent from communications
that have emanated from high officials of the Islamic Republic of Pakistan. The
Adviser to the Prime Minister of Pakistan on Foreign Affairs issued a press
statement on 14 April 2017 (Annex 6) in which he mentioned the ‘confessional’
video statement, which has repeatedly been placed by Pakistan into public
domain. An earlier press release of 10 April 2017 mentioned Jadhav had
“confessed before a magistrate and the court that he was tasked by RAW to
plan, co-ordinate and organise espionage/sabotage activities aiming to
destabilise and wage war against Pakistan by impeding the efforts of Law
Enforcement agencies for restoring peace in Baluchistan and Karachi.”
Although Jadhav stood ‘convicted’ of offences, which led to his being awarded
a death sentence, which was confirmed on 10 April 2017, in its parallel
communication of 10 April 2017, Pakistan informed India that its request for
39 International Commission of Jurists, UN Human Rights Committee, 120th Session, Geneva, 3-28 July 2017,
para 15.
40 Ibid., para 18.
41 Ibid., para 15, 19.
42 Ibid., para 28.
33
consular access would be considered in the light of India’s response to
Pakistan’s request for assistance in the investigation process.
115) The statement by the Adviser to the Prime Minister on Foreign Affairs
acknowledged a sense of hostility, when it advocated “active diplomacy” to
arrest the growing crisis in the relationship between the two countries, failing,
however, to address why consular access was not provided.
116) Although Jadhav theoretically had a right to appeal, this lay to a Military
Appellate Court constituted under the military law. The farcical nature of this
appeal is apparent from the fact that it was liable to be heard by officials below
the rank of the Chief of Army Staff, who had confirmed the sentence of
‘conviction’. Viewed, thus, in the backdrop of an assertion by the Adviser to the
Prime Minister of Pakistan on Foreign Affairs, that Jadhav’s “sentence” is based
on credible, specific evidence proving his involvement in espionage and
terrorist activities in Pakistan, it is plain that Jadhav has been rendered
remediless, and the processes followed, or the lack of them in any event,
constitute a travesty of justice. As per available information, on 22 June 2017,
the Inter Services Public Relations (ISPR) of Pakistan issued a Press Release
(Annex 12), inter alia, stating that Jadhav “had earlier appealed to the Military
Appellate Court which was rejected.”
117) While Jadhav was, and continues to be, held incommunicado by the Pakistan
military authorities, he, as so many others before him, is claimed to have
“confessed”, and on that basis (substantially, if not wholly) awarded the penalty
of a death sentence, in like manner as others similarly sentenced by Pakistan’s
Military Courts.
118) Indeed, it defies credulity that Jadhav was in any position to conduct an
effective defence of charges levelled against him, or even to retract his
‘confession’ or challenge the credibility of any confession asserted to have been
made by Jadhav. Had consular access been provided “without delay”, India
would have been put into a position whereby it could have ensured Jadhav’s
safety and well-being, and ensure that he is in a position to effectively defend
34
himself – to whatever extent that may have been possible – albeit circumscribed
by virtue of a trial being conducted by the Military Court. While these trials are
conducted in camera, if access had been given, a consular officer could have
been present in the course of the hearing, and thereby India would have been in
a position to assess the fairness and impartiality of the presiding officer of the
Military Court.
35
VII. ARTICLE 36 IS A FACET OF DUE PROCESS
119) Article 36 of the Vienna Convention recognises what is, and has since times
immemorial, been considered a critical function of consuls, and has been
understood as the protective function of consular engagement.
120) Article 36 serves to creates international obligations designed to assist a foreign
national, who has been arrested or put on trial, to defend himself effectively in a
foreign country.
121) International law recognises that one of the functions of diplomatic engagement,
and thus an underlying theme of international law as it has evolved over the last
century, is the recognition of the obligations of States based on elementary
considerations of humanity, especially so, in times of peace.
122) In the 1949 Corfu Channel case, this Court found that Albania carried
obligations to notify the existence of mine fields, for the benefit of shipping in
general, in Albanian territorial waters. This obligation was derived from “certain
general and well-recognized principles, namely: elementary considerations of
humanity, even more exacting in peace than in war”.43
123) The obligations of States towards aliens features as a recurrent theme of
international law, in the evolution of the jurisprudence of International law.
124) In the Barcelona Traction, Light and Power Company case, this Court
expostulated the principles that created obligations erga omnes upon States in
relation to foreign investments or foreign nationals. This Court, held “…When a
State admits into its territory foreign investments or foreign nationals, whether
natural or juristic persons, it is bound to extend to them the protection of the
law and assumes obligations concerning the treatment to be afforded them.
These obligations, however, are neither absolute nor unqualified. In particular,
an essential distinction should be drawn between the obligations of a State
towards the international community as a whole, and those arising vis-à-vis
43 Corfu Channel Case, Judgment of April 9th, 1949: ICJ Reports 1949, p.4, p.22.
36
another State in the field of diplomatic protection. By their very nature the
former are the concern of all States. In view of the importance of the rights
involved, all States can be held to have a legal interest in their protection; they
are obligations erga omnes”.44 It then added “…“Such obligations derive, for
example, in contemporary international law, from the outlawing of acts of
aggression, and of genocide, as also from the principles and rules concerning
the basic rights of the human person, including protection from slavery and
racial discrimination. Some of the corresponding rights of protection have
entered into the body of general international law (Reservations to the
Convention on the Prevention and Punishment of the Crime of Genocide,
Advisory Opinion, I.C.J. Reports 1951, p. 23); others are conferred by
international instruments of a universal or quasi-universal character”.45
125) In paragraph 37, this Court said that “In seeking to determine the law applicable
to this case, the Court has to bear in mind the continuous evolution of
international law. Diplomatic protection deals with a very sensitive area of
international relations, since the interest of a foreign State in the protection of its
nationals confronts the rights of the territorial sovereign, a fact of which the
general law on the subject has had to take cognizance in order to prevent abuses
and friction. From its origins closely linked with international commerce,
diplomatic protection has sustained a particular impact from the growth of
international economic relations, and at the same time from the profound
transformations which have taken place in the economic life of nations…”.46
126) In the context of human rights, this Court held “With regard more particularly
to human rights, to which reference has already been made in paragraph 34 of
this Judgment, it should be noted that these also include protection against
denial of justice. However, on the universal level, the instruments which embody
human rights do not confer on States the capacity to protect the victims of
44 Barcelona Traction, Light and Power Company, Limited, Judgment, I.C.J. Reports 1970, p. 3, para 33.
45 Ibid., para 34.
46 Ibid., para 37.
37
infringements of such rights irrespective of their nationality. It is therefore still
on the regional level that a solution to this problem has had to be sought; thus,
within the Council of Europe, of which Spain is not a member, the problem of
admissibility encountered by the claim in the present case has been resolved by
the European Convention on Human Rights, which entitles each State which is a
party to the Convention to lodge a complaint against any other contracting
State for violation of the Convention, irrespective of the nationality of the
victim.”47
127) The protection of human rights generally, and specifically in the context of
aliens has also been a significant strand in the evolving jurisprudence of
international law.
128) The Preamble to the Universal Declaration of Human Rights is instructive. It
states,
Whereas the peoples of the United Nations have in the Charter reaffirmed
their faith in fundamental human rights, in the dignity and worth of the
human person and in the equal rights of men and women and have
determined to promote social progress and better standards of life in
larger freedom,
Whereas Member States have pledged themselves to achieve, in
cooperation with the United Nations, the promotion of universal respect
for and observance of human rights and fundamental freedoms,
Whereas a common understanding of these rights and freedoms is of the
greatest importance for the full realization of this pledge,
Whereas the peoples of the United Nations have in the Charter reaffirmed
their faith in fundamental human rights, in the dignity and worth of the
human person and in the equal rights of men and women and have
determined to promote social progress and better standards of life in
larger freedom,
47 Ibid., para 91.
38
Whereas Member States have pledged themselves to achieve, in
cooperation with the United Nations, the promotion of universal respect
for and observance of human rights and fundamental freedoms,
Whereas a common understanding of these rights and freedoms is of the
greatest importance for the full realization of this pledge….”.
129) This is a recognition of the universality of human rights, and the recognition
that basic rules of what is generally understood as due process, has evolved into
principles of international law binding on all States erga omnes.
130) The ICCPR, in 1966, was another landmark step in the acceptance of common
baseline standards of fundamental and basic human rights, in all citizens of all
countries, necessary to enable human beings to live with dignity.
131) The Vienna Convention fills in a gap at the multilateral level, almost at a
universal level, by guaranteeing the facility of consular access to foreign
nationals who have been put on trial in a foreign country. The principles of due
process, which have now been expressly recognised in the ICCPR can fairly be
considered to be a universal obligation binding upon all States erga omnes. In
relation to a foreign national, consular practice, which has stood the test of time,
has established the need for consular access to render meaningful the right to a
fair and impartial trial, and the right to defend oneself against criminal charges,
including the right to engage a lawyer of one’s own choice in a foreign country.
132) The observations of this Court in the Tehran case, on this dimension of the law
bear repetition “…Wrongfully to deprive human beings of their freedom and to
subject them to physical constraint in conditions of hardship is manifestly
incompatible with the principles of the Charter of the United Nations, as well as
with the fundamental principles enunciated in the Universal Declaration of
Human Rights…”.48 This general principle would apply not merely to members
of the diplomatic corps, but to all human beings, and in the present context, to
nationals of the sending State.
48 United States Diplomatic and Consular Staff in Tehran, Judgment, I.C.J. Reports 1980, p. 3, para 91.
Extracted in extenso in Paragraph 80 above.
39
133) The nature of the impact of the intimidating environment of the military
establishment when it detains and tries civilians is obvious from the fact that
95% of those arrested “confess” to the gravest of crimes – including nationals of
Pakistan. The effect of such an environment upon a national of India, who is
kidnapped from Iran and appears in Pakistan, and then held incommunicado by
the Military establishment would require no proof; but if any proof was
necessary, then it is available in ample measure in the “confession” so promptly
made to the authorities, that it was recorded even before the First Information
Report was registered.
134) When detained in a hostile environment, and subjected to military pressure of
the kind which has led Jadhav to “confess” in manner which has resulted in
granting of a death sentence, consular access which would have allowed Jadhav
access to people from his home country, and to share his miseries as it were,
would have been relief at a humanitarian level. Consular access would also have
enabled officers of the consular post to oversee his physical and mental state of
being, apart from providing him with assistance in mounting a defence to
“charges” levelled against him. Article 36 of the Vienna Convention reflects the
nature and character, as well as the importance, on the level of humanitarianism,
of the rights created, and the corresponding obligations cast.
135) As was observed by this Court of the Geneva Convention49, so can it be said
about the Vienna Convention, that in some respects the principles enshrined
were a development, and in other respects no more than expression of the
fundamental principles of humanitarian law and diplomacy. These measures
were designed to put in place “… an instrument essential for effective cooperation
in the international community, and for enabling States, irrespective
49 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America).
Merits, Judgment. I.C.J. Reports 1986, p.14, para 218.
40
of their differing constitutional and social systems, to achieve mutual
understanding and to resolve their differences by peaceful means".50
136) Consistent with these general principles, in the cases dealing with Article 36
violations, this Court has recognised, that Article 36:
a) Creates not merely a right in favour of the party States, but also creates a
right in favour of the individual.
b) This right is not diluted by allegations made against the sending State,
whether of similar or other violations, including any general failure of
creating a system in consonance with obligations of the sending State.
c) The obligations under Article 36 cast upon the receiving State are not
conditional upon the sending State complying with requests for cooperation
in investigation of crimes et cetera.
d) These rights are intended to ensure against denial of justice, and are not
circumscribed by or subject to any rule of exhaustion of remedies.
e) The breach of Article 36 would entitle the sending State to seek remedies,
based on international principles of State responsibility, including those by
way of full restitution and reparation.
f) Any disputes relating to the violation of these rights would fall within the
jurisdiction of this Court under Article 36 paragraph 1 of the Statute by virtue
of the provisions of the Optional Protocol.
137) In a judgment delivered in 2010 in the Diallo case51, this Court considered a
challenge to the actions of the Democratic Republic of Congo in respect of the
detention and expulsion of a national of the Republic of Guinea, in the backdrop
of the rights and obligations under the ICCPR and the African Charter. This
Court also considered allegations of the violation of Article 36 paragraph 1 (b)
of the Vienna Convention.
50 Case Concerning United States Diplomatic and Consular Staff in Tehran, Request for the indication of
Provisional Measures, Order of 15 December 1979, I.C.J. Reports 1979, p. 19.
51 Case Concerning Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo),
Merits, Judgment, ICJ Reports 2010, p.639
41
138) In the context of Article 36, this Court held that “These provisions, as is clear
from their very wording, are applicable to any deprivation of liberty of
whatever kind, even outside the context of pursuing perpetrators of criminal
offences. They therefore apply in the present case, which the DRC does not
contest.”52 This is consistent with the absolute nature of the obligation, as also
the fundamental principle of due process, that the greater the severity of the
charge, the greater the need for punctilious compliance with the procedural
safeguards recognised as elements of the due process.
139) In any event, as held by this Court in the Diallo case “…. It is true, as the DRC
has pointed out, that Article 13 of the Covenant provides for an exception to the
right of an alien to submit his reasons where “compelling reasons of national
security” require otherwise. The Respondent maintains that this was precisely
the case here. However, it has not provided the Court with any tangible
information that might establish the existence of such “compelling reasons”. In
principle, it is doubtless for the national authorities to consider the reasons of
public order that may justify the adoption of one police measure or another. But
when this involves setting aside an important procedural guarantee provided
for by an international treaty, it cannot simply be left in the hands of the State in
question to determine the circumstances which, exceptionally, allow that
guarantee to be set aside….”.53
140) These observations would establish that Article 36, in contrast with ICCPR,
provides for no exceptions, and thus creates obligations that are absolute in
nature. Even where States are allowed to depart from obligations for compelling
reasons of national security, this Court insisted that the State satisfied, when
challenged, circumstances that would justify denial of guaranteed rights – the
State is not the sole arbiter of its obligations under the ICCPR
141) Where, therefore, in contrast to obligations that recognise exceptions, an
obligation under Article 36, paragraph 1 does not recognise exceptions, it
52 Ibid., para 91.
53 Ibid., para 74.
42
cannot be side-stepped by the State, on self-serving allegations of national
security. Any attempt at a departure from this obligation, whatever the
circumstances, would necessarily constitute a breach of the Vienna Convention.
142) Citing Article 13 of the ICCPR and Article 12 of the African Charter (both of
which deal with expulsion of a national of another state), this Court observed –
“It follows from the terms of the two provisions cited above that the expulsion of
an alien lawfully in the territory of a State which is a party to these instruments
can only be compatible with the international obligations of that State if it is
decided in accordance with “the law”, in other words the domestic law
applicable in that respect. Compliance with international law is to some extent
dependent here on compliance with internal law. However, it is clear that while
“accordance with law” as thus defined is a necessary condition for compliance
with the above-mentioned provisions, it is not the sufficient condition. First, the
applicable domestic law must itself be compatible with the other requirements
of the Covenant and the African Charter; second, an expulsion must not be
arbitrary in nature, since protection against arbitrary treatment lies at the heart
of the rights guaranteed by the international norms protecting human rights, in
particular those set out in the two treaties applicable in this case.”54
143) In interpreting the ICCPR, this Court cited the jurisprudence of the Human
Rights Committee established by the ICCPR to ensure compliance with that
instrument by the State parties. It also cited the interpretation by the European
Court of Human Rights and the Inter-American Court of Human Rights.
144) This approach also harmonises with, and fulfils the objects of, the Universal
Declaration of Human Rights. The inalienable rights recognised in Articles 5, 9
and 10 are non-derogable. Article 5 provides that “…No one shall be subjected
to torture or to cruel, inhuman or degrading treatment or punishment…”.
Article 9 provides that “…No one shall be subjected to arbitrary arrest,
detention or exile…”. Article 10 provides that “…Everyone is entitled in full
equality to a fair and public hearing by an independent and impartial tribunal,
54 Ibid., para 65.
43
in the determination of his rights and obligations and of any criminal charge
against him…”.
145) The Body of Principles for the Protection of all Persons under any form of
Detention or Imprisonment adopted by the General Assembly Resolution
43/173 of 9 December 198855 recognises consular access in Principle 16.
Paragraph 2 of Principle 16 provides that “if a detained or imprisoned person is
a foreigner, he shall also be promptly informed of his right to communicate by
appropriate means with a consular post or the diplomatic mission of the State of
which he is a national of which is otherwise entitled to receive such
communication in accordance with international law…”. The language of this
provision suggests that Article 36 had, by 1988, been considered a principle of
“international law”.
146) The 1985 Declaration on The Human Rights of Individuals Who Are Not
Nationals of The Country in Which They Live56 recognises in Article 10 that
“any alien shall be free at any time to communicate with the consulate or
diplomatic mission of the State of which he or she is a national…”.
147) While the Vienna Convention stands out as the first exposition of the standards
of conduct in relation to the treatment to be meted out to nationals of other
states, the evolution of the principles of international law with an increasing
accent on due process as a fundamental facet of human rights finds resonance in
later instruments by way of treaties as well as resolutions of the General
Assembly and of other bilateral or multilateral bodies charged with the duty of
taking measures for the protection of human rights. It could be stated without
fear of contradiction that consular access has become an indispensable feature,
recognising its significance as being fundamental to affording a fair process to a
national of a foreign state.
55 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment,
adopted by the UN General Assembly on 9 December 1988, A/RES/43/173.
56 Declaration on the Human Rights of Individuals Who are not Nationals on the Country in Which they Live,
adopted by the UN General Assembly on 13 December 1985, A/RES/40/144.
44
148) It is significant that on its plain language Article 36 admits of no exceptions.
The reason is obvious – there is no circumstance which justifies a deviation
from the principles of due process which ensures a fair trial. Article 36 makes
this right a living reality in relation to aliens. Denying the rights under Article
36 would seriously jeopardise due process rights themselves. International
institutions have been at pains to remind States of their obligation to adhere to
the due process standards even in the matter of investigating terrorism-related
offences and prosecuting the offenders. Conventions dealing with terrorism
have expressly recognised consular access, reiterating and reinforcing the
criticality of a provision such as Article 36. As far as states which have signed
and ratified the Vienna Convention are concerned, their obligation under Article
36 is untrammelled by the seriousness of the accusations against an accused. On
the contrary, the more serious the allegations, the greater the need for procedural
fairness.
149) Article 36, by the mechanism of consular access creates a machinery in which
consular officers of the sending State can ensure that the rights of the nationals
of their States against torture, arbitrary arrest and a fair and public trial are fully
respected. 57
150) The remedies for violation of Article 36, and the principles of State
Responsibility in their application to violations of Article 36 are premised on
Article 36 constituting a vital element in the rubric of due process, and as a
corollary, any violation of Article 36 results not just in a violation of a rule for
conduct between two States, but may result, in the facts of a case, in a violation
of the basic inalienable rights of human beings.
57 The comment by the International Commission of Jurists on the culture of “confessions” in Military Trials
in Pakistan, is eloquently stated.
45
VIII. JURISPRUDENCE OF INTER-AMERICAN COURT OF HUMAN RIGHTS
151) Article 36 has been interpreted and applied by the Inter-American Court of
Human Rights (IACtHR) in a number of cases; these judgments are of
considerable assistance in expounding the jurisprudence of Article 36, and its
inextricable connection with the ICCPR specifically, and due process generally.
152) Over the decades, States have, apart from multilateral Treaties, supplemented
the efforts of safeguarding human rights by entering into bilateral treaties that
supplement overarching rights covered by multilateral Treaties, and have
created institutions that resolve disputes arising out of these Treaties – for
example, the IACtHR. The cross-pollination of jurisprudence of rights
recognised across Treaties, and judgments of these institutions has enriched and
advanced international law.
153) On 1 October 1999, the IACtHR rendered an Advisory Opinion on “several
treaties concerning the protection of human rights in the American States”.58
As noted by the Court – “According to the requesting State, the application
concerned the issue of minimum judicial guarantees and the requirement of the
due process when a court sentences to death foreign nationals whom the host
State has not informed of their right to communicate with and seek assistance
from the consular authorities of the State of which they are nationals”.59
154) The IACtHR analysed the Vienna Convention, dispelling the notion that the
reference to the purpose of the privileges and immunities as being “not to
benefit individuals” in the preamble, only refers to the individuals who perform
consular functions – in other words, the privileges and immunities granted to
consular officers were for the performance of their functions, and then went on
to hold that “The Court observes, on the other hand, that in the Case
Concerning United States Diplomatic and Consular Staff in Tehran, the
United States linked Article 36 of the Vienna Convention on Consular
58 Advisory Opinion OC-16/99 of October 1, 1999, “The Right to Information on Consular Assistance in the
Framework of the Guarantees of the Due Process of Law”, para 1.
59 Ibid.,para 1.
46
Relations with the rights of the nationals of the sending State. The
International Court of Justice, for its part, cited the Universal Declaration in
the respective judgment”.60 The IACtHR also held that “Mexico, moreover, is
not requesting the Court’s interpretation as to whether the principal object of
the Vienna Convention on Consular Relations is the protection of human
rights; rather, it is asking whether one provision of that Convention concerns
the protection of human rights. This is an important point, given the
advisory jurisprudence of this Court, which has held that a treaty can
concern the protection of human rights, regardless of what the principal
purpose of that treaty might be. Therefore, while some of the comments
made to the Court concerning the principal object of the Vienna Convention
on Consular Relations to the effect that the treaty is one intended to ‘strike a
balance among States’ are accurate, this does require that the Treaty be
dismissed outright as one that may indeed concern the protection of an
individual’s fundamental rights in the American hemisphere”.61
155) The IACtHR held, in addition, that the “…provision recognising consular
communication serves a dual purpose: that of recognising a State’s right to
assist its nationals through the consular officer’s actions and, correspondingly,
that of recognising the co-relative right of the national of the sending State to
contact the consular officer to obtain that assistance.”62 In paragraph 82, the
IACtHR noted “The bearer of the rights mentioned in the preceding paragraph,
which the international community has recognized in the Body of Principles for
the Protection of All Persons under Any Form of Detention or Imprisonment, is
the individual. In effect, this article is unequivocal in stating that rights to
consular information and notification are “accorded” to the interested person.
In this respect, Article 36 is a notable exception to what are essentially States’
rights and obligations accorded elsewhere in the Vienna Convention on
Consular Relations. As interpreted by this Court in the present Advisory
60 Ibid., para 75.
61 Ibid., para 76.
62 Ibid., para 80.
47
Opinion, Article 36 is a notable advance over international law’s traditional
conceptions of this subject.”63
156) The conclusions arrived at by the IACtHR on this issue were as follows: -
“The Court therefore concludes that Article 36 of the Vienna Convention
on Consular Relations endows a detained foreign national with individual
rights that are the counterpart to the host State’s correlative duties. This
interpretation is supported by the article’s legislative history. There,
although in principle some States believed that it was inappropriate to
include clauses regarding the rights of nationals of the sending State, in
the end the view was that there was no reason why that instrument should
not confer rights upon individuals”64 and that “The Court must now
consider whether the obligations and rights recognized in Article 36 of the
Vienna Convention on Consular Relations concern the protection of
human rights.”65
157) The IACtHR then proceeded to examine the question whether non-observance
of the right of information violates the rights under Article 14 of the ICCPR,
Article 3 of the Charter of the Organization of American States (OAS) and
Article II of the American Declaration of the Rights and Duties of Man. It cited
the Advisory Opinion of this Court in Legal Consequences for States of the
Continued Presence of South Africa in Namibia (South West Africa) on the
principles of construction of treaties where this Court held that “[...] the Court
must take into consideration the changes which have occurred in the
supervening half-century, and its interpretation cannot remain unaffected by the
subsequent development of law [...] Moreover, an international instrument has
to be interpreted and applied within the framework of the entire legal system
prevailing at the time of the interpretation. In the domain to which the present
proceedings relate, the last fifty years [...] have brought important
developments [...]. In this domain, as elsewhere, the corpus juris gentium has
63 Ibid., para 82.
64 Ibid., para 84.
65 Ibid., para 85.
48
been considerably enriched, and this the Court, if it is faithfully to discharge its
functions, may not ignore.”66
158) The IACtHR traced the genesis of the ICCPR, insofar as it recognises the right
to due process of law “from the inherent dignity of the human person”. It held
that “In the opinion of this Court, for “the due process of law” a defendant
must be able to exercise his rights and defend his interests effectively and in full
procedural equality with other defendants…”.67 It also held – “To accomplish
its objectives, the judicial process must recognise and correct any real
disadvantages that those brought before the bar might have, thus observing the
principle of equality before the law and the courts and the corollary principle
prohibiting discrimination. The presence of real disadvantages necessitates
countervailing measures that help to reduce or eliminate the obstacles and
deficiencies that impair or diminish an effective defence of one’s interests.
Absent those countervailing measures, widely recognised in various stages of
the proceeding, one could hardly say that those who have the disadvantages
enjoy a true opportunity for justice and the benefit of the due process of law
equal to those who do not have those disadvantages”.68
159) In words that resonate, in the present case, the Court held “In the case to which
this Advisory Opinion refers, the real situation of the foreign nationals facing
criminal proceedings must be considered. Their most precious juridical rights,
perhaps even their lives, hang in the balance. In such circumstances, it is
obvious that notification of one’s right to contact the consular agent of one’s
country will considerably enhance one’s chances of defending oneself and the
proceedings conducted in the respective cases..”.69 It further held that “…the
individual rights under analysis in this Advisory Opinion must be recognised
and counted among the minimum guarantees essential to providing foreign
66 Ibid., para 113; Legal Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa), notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J.
Reports 1971; p. 16 ad 31).
67 Ibid., para 117.
68 Ibid., para 119.
69 Ibid., para 121.
49
nationals the opportunity to adequately prepare their defence and receive a fair
trial.”70.
160) Citing the approach taken in a number of cases involving the death penalty, by
the United Nations Human Rights Committee, the IACtHR noticed that the
view of the Committee was that “if the guarantees of the due process
established in Article 14 of the ICCPR were violated, then so, too, were those of
Article 6.2 of the Covenant if sentence was carried out.”71. Consistent with this
approach, the IACtHR held in paragraph 135 to 137 as follows:
“135. This tendency, evident in other inter-American and universal
instruments, translates into the internationally recognized principle
whereby those States that still have the death penalty must, without
exception, exercise the most rigorous control for observance of judicial
guarantees in these cases. It is obvious that the obligation to observe the
right to information becomes all the more imperative here, given the
exceptionally grave and irreparable nature of the penalty that one
sentenced to death could receive. If the due process of law, with all its
rights and guarantees, must be respected regardless of the circumstances,
then its observance becomes all the more important when that supreme
entitlement that every human rights treaty and declaration recognizes and
protects is at stake: human life.
136. Because execution of the death penalty is irreversible, the strictest
and most rigorous enforcement of judicial guarantees is required of the
State so that those guarantees are not violated and a human life not
arbitrarily taken as a result.
137. For the foregoing reasons, the Court concludes that non observance
of a detained foreign national’s right to information, recognized in Article
36(1)(b) of the Vienna Convention on Consular Relations, is prejudicial to
the guarantees of the due process of law; in such circumstances,
imposition of the death penalty is a violation of the right not to be
70 Ibid., para 122.
71 Ibid., para 130.
50
“arbitrarily” deprived of one’s life, in the terms of the relevant provisions
of the human rights treaties (eg the American Convention on Human
Rights, Article 4; the International Covenant on Civil and Political Rights,
Article 6) with the juridical consequences inherent in a violation of this
nature, i.e., those pertaining to the international responsibility of the State
and the duty to make reparations.”72
161) Consistent with this approach, the Inter-American Commission on Human
Rights (IACHR) has treated any violation of Article 36 (1)(b) of the Vienna
Convention as the failure of due process. Illustratively, in Ramon Martinez
Villareal v. United States: -
“81. The Commission therefore concludes that the State failed to inform
Mr. Martinez Villareal of his rights under Article 36(1)(b) of the Vienna
Convention on Consular Relations and likewise failed to inform the
Mexican consulates of Mr. Martinez Villareal’s arrest and subsequent
prosecution as required under that provision.
…
83. These circumstances strongly suggest that the quality of due process
afforded to Mr. Martinez Villareal suffered as a consequence of his status
as a foreign national, a circumstance that compliance with the notification
requirements under Article 36(1)(b) of the Vienna Convention on Consular
Relations may well have mitigated. The Commission also cannot find that
the standard of due process owing to Mr. Martinez Villareal under the
American Declaration and under general principles of international law
was satisfied based upon the State’s contentions in this matter as to the
possible state of knowledge or involvement of Mexican consular officials.
…
97. As to the Commission’s competence in relation to the Vienna
Convention on Consular Relations, it was clearly determined in the merits
decision in this matter that the Commission may properly consider the
extent to which a state party to the Vienna Convention on Consular
72 Ibid., para 135-137.
51
Relations has given effect to the requirements of Article 36 of that treaty,
insofar as these requirements constitute part of the corpus juris gentium of
international legal rules applicable in evaluating that state’s respect for
the rights under the American Declaration. As the Commission concluded
in the circumstances of Mr. Martinez Villareal’s complaint, noncompliance
with the obligation under Article 36 can have a direct and
deleterious effect on the quality of due process afforded to a defendant and
thereby call into question compliance with the requirements of Articles
XVIII and XXVI of the American Declaration as well as similar provisions
of other international human rights instruments.”73
And in Cesar Fierro v. United States,
“30. The claim raised by the Petitioners before this Commission is the
contention that the United States failed to inform Mr. Fierro upon his
arrest of his right to consular notification as provided for under Article 36
of the Vienna Convention on Consular Relations, as well as correspondent
customary international law and U.S. domestic law, and is thereby
responsible for violations of Mr. Fierro’s rights under Articles II, XVIII
and XXVI of the American Declaration. As described above, the
Petitioners argue that Mr. Fierro was precluded by the August 4 and
October 12, 1994 decisions of the Texas Court of Criminal Appeals from
pursuing this claim before the Texas State courts by limiting his
proceedings to issues that did not include the consular notification
allegation and that the U.S. Federal Courts precluded Mr. Fierro from
raising any claims based upon limitations in the Anti-Terrorism and
Effective Death Penalty Act of 1996. The judicial decisions on the record
before the Commission support the Petitioners’ contentions in this regard.
On this basis, the Petitioners argue that Mr. Fierro should be considered
to have exhausted the domestic remedies available to him concerning his
consular notification issue, or alternatively that he has been precluded
from pursuing that claim before the domestic courts.
…
73 Ramon Martinez Villareal v. United States, Case 11.753, Report No.52/02, Inter-Am. C.H.R, Doc.5 rev.1 at
821 (2002), para 81, 83, 97.
52
40. Based upon the foregoing, the Commission concludes that Mr. Fierro’s
right to information under Article 36(1)(b) of the Vienna Convention on
Consular Relations constituted a fundamental component of the due
process standards to which he was entitled under Articles XVIII and XXVI
of the American Declaration, and that the State’s failure to respect and
ensure this obligation constituted serious violations of Mr. Fierro’s rights
to due process and to a fair trial under these provisions of the Declaration.
…
41. Accordingly, should the State execute Mr. Fierro based upon the
criminal proceedings for which he is presently convicted and sentenced,
the Commission finds that this will constitute an arbitrary deprivation of
Mr. Fierro’s life contrary to Article I of the Declaration.
…
66. Upon considering the State’s observations concerning the
Commission’s conclusions and recommendations, the Commission wishes
to state that it is encouraged by the measures taken by the United States to
enhance compliance with its obligations under the Vienna Convention on
Consular Relations regarding consular notification and access. To this
extent, the State appears to have taken some measures to implement the
Commission’s second recommendation, as reproduced below. At the same
time, the Commission cannot accept the State’s contention that compliance
with a foreign national’s right to consular notification and assistance is
irrelevant to the due process and fair trial protections under international
human rights instruments, including the American Declaration. As the
Commission has previously held, fundamental due process protections,
such as the right to prior notification in detail of the charges against a
defendant and the right to effective counsel, are of such a nature that, in
the absence of access to consular assistance, a foreign national could be
placed at a considerable disadvantage in the context of a criminal
proceeding taken against him or her by a state. Each case must be
evaluated on its individual circumstances. Once a failure to inform a
foreign national of his right to consular notification and assistance has
53
been proven, however, a formidable presumption of unfairness will arise
unless it is established that the proceedings were fair notwithstanding the
failure of notification. While the State contends in the present case that the
protections provided for in its legal system are among the strongest and
most expansive in the world, this does not foreclose situations in which
access to consular assistance may have an impact on the fairness of a
foreign national’s criminal proceedings in the United States. This could
arise, for example, in relation to a defendant’s ability to gather mitigating
evidence or other relevant information from his or her home country.”74
162) The history of the Medellin case presents an important example of the
significance of Article 36 vis-à-vis due process standards. In that case, the
United States argued that the domestic law provides stringent due process
protections not dependent on consular notification, access or assistance, and the
guarantees and the domestic law are amongst the strongest and most expansive
in the world. Medellin also moved the US Supreme Court, and by its judgment
of 25 March 2008, the US Supreme Court, although recognising that the Avena
judgment creates an international obligation on the part of the United States,
held that it does not constitute binding domestic law in the absence of
implementing legislation, and on that basis declared as unconstitutional the
President’s memorandum seeking to enforce the Avena judgment. The IACHR,
nonetheless, held that:
“132. Based upon the foregoing, the Commission concludes that the
State’s obligation under Article 36.1 of the Vienna Convention on
Consular Relations to inform Messrs. Medell.n, Ramírez Cardenas and
Leal García of their right to consular notification and assistance
constituted a fundamental component of the due process standards to
which they were entitled under Articles XVIII and XXVI of the American
Declaration, and that the State’s failure to respect and ensure this
obligation deprived them of a criminal process that satisfied the minimum
standards of due process and a fair trial required under Articles XVIII and
XXVI of the Declaration.
74 Cesar Fierro v. United States, Case 11.331, Report No.99/03, Inter-Am.C.H.R., OEA/Ser./L/V/II.114
Doc.70 rev. 1 at 769 (2003), para 30, 40, 41, 66.
54
…
155. In the instant case, the Commission has established that the State is
responsible for violations of its obligations under Articles XVIII and XXVI
of the American Declaration, based upon its failure to provide the victims
with competent legal representation in the course of the criminal
proceedings, and its failure to afford Messrs. Medellín, Ramírez Cardenas
and Leal García their right to consular information under Article 36.1.b of
the Vienna Convention. Therefore, the Commission finds that the
imposition of the death penalty in the instant case involves an arbitrary
deprivation of life, prohibited by Article I of the Declaration. Additionally,
once the State executed Mr. Medellín pursuant to his death sentence,
it committed a deliberate and egregious violation of Article I of the
American Declaration; likewise, should it execute Messrs. Ramírez
Cardenas and Leal García, it would also commit the same violation.”75
163) On that basis, the IACHR issued a declaration that “Vacate the death sentences
imposed and provide the victims with an effective remedy, which includes a new
trial in accordance with the equality, due process and fair trial protections,
prescribed under Articles I, XVIII and XXVI of the American Declaration,
including the right to competent legal representation.”76
75 Report No. 90/09 Case 12.644, Admissibility and Merits (Publication) Medellin, Ramirez Cardenas and
Leal Garcia, United States, August 7 2009, para 132, 155.
76 Ibid., para 160.1.
55
IX. INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS
164) The Human Rights Committee in its 90th Session in Geneva in July 2007,
discussed Article 14 of the ICCPR in General Comment No. 32. It said “…the
right of access to courts and tribunals and equality before them is not limited to
citizens of States parties, but must also be available to all individuals,
regardless of nationality or statelessness, or whatever their status, whether
asylum seekers, refugees, migrant workers, unaccompanied children or other
persons, who may find themselves in the territory or subject to the jurisdiction
of the State party….”.77 It explained that “The notion of a “tribunal” in Article
14, paragraph 1 designates a body, regardless of its denomination, that is
established by law, is independent of the executive and legislative branches of
government or enjoys in specific cases judicial independence in deciding legal
matters in proceedings that are judicial in nature. Article 14, paragraph 1,
second sentence, guarantees access to such tribunals to all who have criminal
charges brought against them….”78 . Furthermore, “The requirement of
Independence refers, in particular, to the procedure and qualifications for the
appointment of judges, and guarantees relating to their security of tenure until a
mandatory retirement age or the expiry of their term of office, where such exist,
the conditions governing promotion, transfer, suspension and cessation of their
functions, and the actual independence of the judiciary from political
interference by the executive branch and legislature…..”79 and “… the tribunal
must also appear to be a reasonable observer to be impartial…”80 The
Committee noted the phenomenon of “faceless judges” and in that context
observed that in such cases the accused suffer not only from the fact that the
identity and status of the judges is not made known “... But also from
irregularities such as exclusion of the public or even the accused or their
representatives from the proceedings; restrictions of the right to a lawyer of
their own choice; severe restrictions or denial of the right to communicate with
77 General Comment No. 32, Human Rights Committee, 90th Session, Geneva, 9-27 July 2007, para 9.
78 Ibid., para 18.
79 Ibid., para 19.
80 Ibid., para 21.
56
their lawyers, particularly when held incommunicado; threats to the lawyers;
inadequate time for preparation of the case; or severe restrictions or denial of
the right to summon and examine or have examined witnesses, including
prohibitions on cross-examining certain categories of witnesses, e.g. police
officers responsible for the arrest and interrogation of the defendant. Tribunals
with or without faceless judges, in circumstances such as these, do not satisfy
basic standards of fair trial and, in particular, the requirement that the tribunal
must be independent and impartial.”81
165) In paragraph 37, the Committee observed “Second, the right of all accused of a
criminal charge to defend themselves in person or through legal counsel of their
own choosing and to be informed of this right, as provided for by article 14,
paragraph 3 (d), refers to two types of defence which are not mutually
exclusive. Persons assisted by a lawyer have the right to instruct their lawyer on
the conduct of their case, within the limits of professional responsibility, and to
testify on their own behalf. At the same time, the wording of the Covenant is
clear in all official languages, in that it provides for a defence to be conducted
in person "or" with legal assistance of one's own choosing, thus providing the
possibility for the accused to reject being assisted by any counsel. This right to
defend oneself without a lawyer is, however not absolute. The interests of justice
may, in the case of a specific trial, require the assignment of a lawyer against
the wishes of the accused, particularly in cases of persons substantially and
persistently obstructing the proper conduct of trial, or facing a grave charge but
being unable to act in their own interests, or where this is necessary to protect
vulnerable witnesses from further distress or intimidation if they were to be
questioned by the accused. However, any restriction of the wish of accused
persons to defend themselves must have an objective and sufficiently serious
purpose and not go beyond what is necessary to uphold the interests of justice.
Therefore, domestic law should avoid any absolute bar against the right to
defend oneself in criminal proceedings without the assistance of counsel.”82 The
right of an accused to a lawyer for his defence, when being tried by a foreign
81 Ibid., para 23.
82 Ibid., para 37.
57
State, is given meaning by following the procedure of Article 36 of the Vienna
Convention.
166) The evolution of jurisprudence of international law in this Court has had the
underpinnings of human rights in their broader dimension, for in the ultimate
analysis, good relations between the States, which make for conditions of peace
and harmony, are conditions in which the human right to life, to live with
dignity and enjoy those privileges so inherent to mankind, are considered
inviolable.
167) Article 36 which crystallised into a multilateral treaty, a practice of the consular
posts, is concerned with human rights, even if by itself it is not intended to
create rights which can be characterised as human rights.
168) After the Treaty in 1963, human rights were crystallised in the ICCPR and
States which have signed and ratified the Treaty should be judged by the
standards of the covenants of that multilateral treaty. Pakistan also signed and
ratified the ICCPR on 17 April 2008 and 23 June 2010 respectively. India
acceded to the ICCPR on 10 April 1979.
58
X. INTERNATIONAL MINIMUM STANDARDS
169) The principles of international law, which have come to be considered as
‘international minimum standards’, are recognised by international bodies.
Domestic laws and practices of States do not afford a defence, where the
conduct of a State is such that it would violate international minimum standards
of due process. The conduct of a State that can be considered to be cruel and
inhuman would violate the minimum standard rule of international law.
170) In the words of the General Claims Commission in United States v Mexico83
(the Neer case) the propriety of governmental acts should be put to the test of
international standards, and the treatment of an alien would amount to an
international delinquency where it is an outrage, in wilful neglect of duty, or is
governmental action which is “…so far short of international standards that
every reasonable and impartial man would readily recognise its
insufficiency.”.84
171) In Roberts v United Mexican States85, the General Claims Commission held that
“… Facts with respect to equality of treatment of aliens and nationals may be
important in determining the merits of the complaint of mistreatment of an
alien. But such equality is not the ultimate test of the propriety of the acts of
authorities in the light of international law. That test is, broadly speaking,
whether aliens are treated in accordance with the ordinary standards of
civilisation…”86
83 L.F.H Neer and Pauline Neer (U.S.A) v United Mexican States (15 October 1926), Reports of International
Arbitral Awards Volume IV pp. 60-66.
84 Ibid., para 4.
85 Harry Roberts (U.S.A) v United Mexican States (2 November 1926), Reports of International Arbitral
Awards, Volume IV pp. 77-81.
86 Ibid., para 8.
59
172) In his essay on the Minimum Standard of Treatment of Aliens, Edwin
Borchard87 notes that “due process of law has been to some extent
internationalised by the fact that international tribunal have grown on the
moors of the average and not of the crudest municipal practice…”88. He says “it
is thus apparent that both in its substantive and procedural aspects
international law, as evidenced by diplomatic practice and arbitral decision,
has established the existence of an international minimum standard to which all
civilised states are required to confirm under penalty of responsibility….”89 and
adds “… Fair courts, readily open to aliens, administering justice honestly,
impartially, without bias of political control, seem essentials of international
due process”90.
173) The ICCPR is clearly a “law-making” treaty that creates legal obligations and
creates general norms framed as legal propositions to govern the conduct of the
parties, not necessarily limited to that conduct inter se. The number of parties,
the explicit acceptance of the rules of the treaty and the declaratory character of
the provisions of a treaty “combine to produce a powerful law creating effect.91
174) In the arbitration award by the North American Free Trade Agreement
(NAFTA) Tribunal in the case between Pope and Talbot Inc v Government of
Canada92 after considering the number of Bilateral Investment Treaties that had
been negotiated over the decades, the Tribunal held “therefore applying the
ordinary rules for determining the content of custom in international law, one
must conclude that the practice of states is now represented by those
87 Edwin Borchard, ‘The “Minimum Standard” of the Treatment of Aliens’, [1940] 38 Michigan Law Review
4, page. 445.
88 Ibid., page. 449.
89 Ibid., page.456-7.
90 Ibid., page 460.
91 Brownlie’s Principles of Public International Law, Eighth Edition, James Crawford, page 31.
92 Pope and Talbot Inc. v Government of Canada, Award in Respect of Damages of 31 May 2002, 41 I.L.M
(2002), 1347.
60
treaties.”93. Citing the passage from the judgment of this Court in the case
concerning Elettronica Sicula S.p.A. (ELSI)94 the Tribunal held “.. Arbitrariness
is not so much something opposed to a rule of law, as something opposed to the
rule of law...”95. It held that “the International Court of Justice has moved away
from the Neer formulation … That formulation leaves out any requirement that
every reasonable and impartial person be dissatisfied and perhaps permits a bit
less injury to the psyche of the observer, who need no longer be outraged, but
only surprised by what the government has done. And, of course replacing the
neutral “government action” with the concept of “due process” perforce makes
the formulation more dynamic and responsive to evolving and more rigorous
standards for evaluating what governments do to people and companies.”.96
175) The principles of the Vienna Convention and the ICCPR can, in view of their
wide-spread acceptance, now be characterized as obligations erga omnes.
Where States have signed and ratified both the Vienna Convention along with
the Optional Protocol and the ICCPR, the rights under Article 14 of the ICCPR
become inextricably interwoven, for the reason that the procedure under Article
36 (1) (b) creates a mechanism for the elements of due process, i.e. the right of
an alien to defend himself in a foreign State after being duly informed of the
charges and of the right to engage a lawyer of one’s choice, to become a reality.
A breach of Article 36 could entail a violation of Article 14 of the ICCPR.
176) Although the violation of Article 14 may not be amenable to a remedy by itself
in all cases, where the violation of Article 36 has resulted in the violation of, or
the aggravation of the violation of the right under Article 14 of the ICCPR, the
principles of State Responsibility, as applied to the violation of Article 36 of the
Vienna Convention must recognise this synergy between Article 14 and Article
36 and must therefore address the serious consequences of the violation of
93 Ibid., para 62.
94 Case Concerning Elettronica Sicula S.p.A. (ELSI) (United States of America v Italy) [1989] ICJ Reports
1989, p.15.
95 Ibid., para 76.
96 Pope and Talbot Inc. v Government of Canada, supra, para 63-4.
61
Article 36, which results in the violation of, or an aggravation of the violation
of, the right under Article 14 of the ICCPR.
177) Thus, the interplay between Article 36, the guarantees of the ICCPR, as well as
the principles of due process, as minimum guaranteed human rights, would have
a vital bearing on the fashioning of an appropriate remedy, so as to achieve the
desired aim of restitutio in integrum.
178) Human rights, and measures in diverse treaties that were fashioned to fulfil the
fundamental promise of human dignity have to be considered in their confluent
effect, and where the conduct of a State results in violating a web of principles,
some derived from treaties and some founded in principles of international law
binding on States erga omnes, the principles of State Responsibility would have
to be applied keeping in view the egregious nature of the violation of
international law by the delinquent State, and not by considering the violation of
individual treaties or obligations erga omnes in isolation.
179) When a remedy is fashioned to afford relief of effective restitution and
reparation, a violation of Article 14 of the ICCPR, including a potential
continuing violation, would be a very material factor to be taken into
consideration. The restitution or relief that risks continuing a violation of Article
14 of the ICCPR or confer legitimacy on a delinquency is not consistent with
international law and principles of State Responsibility.
62
XI. PAKISTAN MILITARY COURT
180) The Military Court that “tried” Jadhav was established under the Pakistan Army
Act, 1952. Section 2 of the Act, has been amended from time to time, and in
January 2015 Pakistan empowered military courts to try civilians for terrorismrelated
offences. The Pakistan Constitution was amended, as also were
amendments made to the Army Act, 1952.97
181) The Courts Martial are in Chapter IX of the 1952 Act. Jadhav was tried by a
Field General Court Martial (FGCM) established under Section 59 of the Army
Act, 1952. Section 59 extends the jurisdiction of the Army Tribunals to
civilians. A FGCM is convened by the Chief of Army Staff or an officer
empowered by him, and must consist of not less than three officers (under
section 84 read with section 87). The President of the FGCM is appointed by the
authority convening the court (Section 102). The finding and sentence of a
FGCM is confirmed by the convening officer. Appeals in the case of persons
awarded a death sentence, under section 133B, lie to an appeal court, which
either consists of the Chief of Army staff, or one or more officers designated by
him, of or above the rank prescribed.
182) In the present case, the Chief of Army Staff has confirmed the sentence of the
FGCM. The Adviser to the Prime Minister on Foreign Affairs (a high-ranking
functionary of the Pakistan establishment) made a press statement on 14 April
2017, in which he also noted that “first of all, political parties are unanimous
that the award of death penalty after due process and overwhelming evidence to
a foreign spy, who was not only carrying out subversive activities in Pakistan
but actually promoting terrorism, is the correct decision”.
183) It is clear that Jadhav’s trial is a farce, and a mockery of the due process. Even
before Jadhav could file an appeal, a high-ranking functionary of the
Government in his statement endorsed the correctness of the sentence and the
conviction. The appeal stated to be filed by Jadhav and its purported result has
97 International Commission of Jurists, UN Human Rights Committee, 118th session, Geneva, from 17th
October to 4th November 2016, para 5.
63
been a further travesty. It is not known whether Jadhav’s mother’s appeal was
ever entertained; however, clearly an appeal filed to a Military Appellate Court
subordinate to the Chief of Army Staff (who has already confirmed the
sentence), filed without sight of the evidence of the charges, or the order
convicting Jadhav, is not a remedy which accords with the due process
standards.
184) The working of the Military Courts in Pakistan has been censured by the
European Parliament. In a resolution of 15 June 2017, the European Parliament
stated “whereas military courts were authorised for two years while the civilian
judiciary was supposed to be strengthened; whereas there has been little
progress in developing the judiciary, and on 22 March 2017 the military courts
were controversially reinstated for a further two-year period”98. The Resolution
goes on to state that the European Parliament “deplores the use in Pakistan of
military courts that hold hearings in secret and have civilian jurisdiction; insists
that the Pakistani authorities grant access to international observers and
human rights organisations for purposes of monitoring the use of military
courts; called also for an immediate and transparent transition to independent
civilian courts, in line with international standards on judicial proceedings;
underscores that third country nationals brought to trial must be allowed access
to consular services and protections;”99
185) A report was submitted by the International Commission of Jurists to the UN
Human Rights Committee for its consideration in its 118th Session in Geneva.
Some of the significant observations in this report are as follows:
“8. International standards clarify that the Jurisdiction of military
tribunals should be restricted solely to specifically military offences
committed by military personnel: They should not, in general, be used to
try civilians, or to try people for gross human rights violations.
…
98 European Parliament Resolution of 15 June 2017 on Pakistan, notably the situation of human rights
defenders and the death penalty (2017/2723(RSP)), para F.
99 Ibid., para 5.
64
10. The Draft Principles Governing the Administration of Justice Through
Military Tribunals, which were adopted by the former UN Sub-
Commission on the Promotion and Protection of Human Rights in 2006,
affirm that the Jurisdiction of military courts should be restricted to
military personnel in relation to military offences. The principles also
emphasize the right to a fair trial, including the right to appeal to civilian
courts, and also that civilians accused of a criminal offence of any nature
shall be tried by civilian courts.
…
12. International standards require that military courts, like all other
courts, must be independent, impartial and competent, and must respect
minimum guarantees of fairness, including those set out in Article 14 of
the ICCPR.
13. 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 military officers who are a part of the
executive branch of the State and do not enjoy independence from the
military hierarchy - They are not required to have judicial or legal
training, or even a law degree, and do not enjoy any security of tenure,
which are prerequisites of Judicial competence and Independence.
…
22. For these reasons, the ICJ recommends that the following question be
included in the List of Issues for the examination of Pakistan:
Does Pakistan intend to renew the 21st Amendment after it expires in
January 2017?
What measures has Pakistan taken since January 2015 to bolster the
regular criminal justice system to effectively try terrorism-related cases?
65
How does the Government ensure people tried by military courts are
guaranteed basic fair trial rights?
What measures has the Government taken to ensure military courts do not
try children?
Do people tried by military courts have the right to a lawyer of their
choice?
Do military courts issue judgments with detailed reasons explaining the
courts' verdicts? Are such judgments open to public scrutiny?
What steps has the Government taken to ensure people tried by military
courts are not subjected to torture and other ill-treatment while in the
custody of military authorities?
…
38. The Pakistan Army Act bars civilian courts from exercising their
appellate jurisdiction over decisions of military courts. Civilian courts in
Pakistan have held they may use their extraordinary writ jurisdiction to
hear cases related to military courts where "any action or order of any
authority relating to the Armed Forces of Pakistan is…either coram non
judice, mala fide, or without jurisdiction. Relying on this, Javed Iqbal
Ghauri challenged his son's conviction and sentence on grounds of
violation of the right to a fair trial. However, on 27 January 2016, the
Lahore High Court dismissed his petition. The three-page order of the
Court did not address the specific concerns raised by the petitioner,
including allegations of enforced disappearance. The case is currently
pending before the Supreme Court.”100
186) A second submission was made in June 2017, in advance of the examination of
the initial report, by the Commission to the UN Human Rights Committee, in its
100 International Commission of Jurists, Un Human Rights Committee, 118th Session, Geneva, from 17th
October to 4th November 2016, para 8,10,12,13,22,38.
66
120th session in Geneva in July 2017. Some of the significant observations in
this report are as follows:
“5. Pakistan's system of "military justice" has placed the country in clear
violation of its legal obligations and political commitments to respect the
right to life, the right to a fair trial, and the independence and impartiality
of the judiciary.
6. In the two years since military courts were initially empowered to try
civilians in connection with purported terrorism-related offences, they
have convicted at least 274 civilians, including, possibly, children, in
opaque, secret proceedings. They have sentenced 161 civilians to death
and at least 48 civilians have been hanged after trials that are grossly
unfair. In all these cases, the government and military authorities have
failed to make public information about the time and place of the trials;
the specific charges and evidence against the defendants; as well as the
judgments of military courts, including the essential findings, legal
reasoning, and evidence on which the convictions were based.
…
12. Pakistani military courts are not independent and the proceedings
before them fall far short of national and international fair trial standards.
Military court judges are military officers who are a part of the executive
branch of the State and do not enjoy independence from the military
hierarchy. They are not required to have judicial or legal training, or even
a law degree, and do not enjoy any security of tenure, which are
prerequisites of judicial competence and independence.
…
15. At least 159 out of 168 civilians (95 per cent) whose convictions have
been publicly acknowledged by the military have allegedly "confessed" to
the charges. In the absence of adequate safeguards and independent
review mechanisms in military proceedings, this very high rate of
“confessions" raises serious questions about their voluntariness, including
67
with respect to the infliction of torture and other ill treatment to extract
confessions.
16. States must ensure that no one is held secretly in detention, whether in
officially recognized detention facilities or elsewhere. The Human Rights
Committee has made it clear that secret detention under the Covenant is
itself prohibited and "detainees should be held only in facilities officially
acknowledged as places of detention. " The UN Committee against Torture
has repeatedly stated that people accused of a crime must be detained and
interrogated in officially recognized places of detention, and provision
should also be made against incommunicado detention where suspects are
deprived of communication with the outside world. In its Concluding
Observations on Pakistan, the CAT Committee urged Pakistan to "ensure
that no one is held in secret or incommunicado detention anywhere in the
territory of the State party as detaining individuals in such conditions
constitutes, per se, a violation of the Convention.
17. However, suspects tried by military courts were often kept in secret
detention and family members, lawyers and NGOs did not have access to
them; military proceedings were completely secret and closed to the
public; and the right to appeal to civilian courts was not available.
Without any access to the outside world, the detainees were at high risk of
torture and ill treatment.
18. Family members of some of the people convicted by military courts
petitioned the Supreme Court of Pakistan challenging, among other things,
the lawfulness and voluntariness of the defendants' "confessions". In
August 2016, however, the Supreme Court dismissed all petitions without
considering the allegations of torture and other ill-treatment in any detail.
The Court reiterated the limitations of its review jurisdiction, and noted
that since the "confessions" were recorded by a magistrate and were not
retracted, they stood "proved”.
68
19. The ICJ notes that the Supreme Court's treatment of questions
regarding the veracity and voluntariness of "confessions" in military trials
is markedly different from its treatment of the same issues in the context of
cases before civilian courts. Pakistani law and jurisprudence spanning
decades clarify that in recording confessions, the magistrate has to
observe a number of mandatory precautions. The fundamental logic of
these precautions, in the words of the Supreme Court, is to shed "all signs
of fear inculcated by the Investigating Agency in the mind of the accused
and provide "complete assurance" to the accused that in case they are not
making a confession voluntarily, they will not be handed over back to the
police. The Supreme Court has also held that the confessions will have no
legal or evidentiary worth if these directions are not followed.
…
21. Procedures of "military justice", however, made a complete mockery of
these safeguards. Suspects were at all times in military custody, even after
the magistrate recorded their "confessions". They also had no access to
the outside world, further compounding their vulnerability to external
pressure and coercion. And reportedly, some of them were subjected to
enforced disappearance by military authorities as far back as 2010 and
kept in secret detention in internment centers in the Federally
Administered Tribal Areas (FATA) for many years before their military
trials. In such circumstances, the "confessions" of suspects before military
courts raise serious questions about their voluntariness and over the
legitimacy of the manner in which they were obtained, including concerns
of torture and other ill treatment.
…
25. It should be noted that under Pakistani law, the scope of judicial
review is severely limited. Courts have also interpreted their review
jurisdiction narrowly, and have held that "the High Court in its
constitutional jurisdiction is not a Court of Appeal and hence is not
empowered to analyze each and every piece of evidence in order to return
69
a verdict and "controversial questions of facts...cannot be looked into in
this limited extraordinary writ jurisdiction.
…
28. Since January 2017, at least 161 people were given the death penalty
after being convicted on the basis of "confession" evidence by military
courts (see section above for concerns about the high rate of "confessions"
and the circumstances in which such 'confessions" are likely to have been
obtained). Out of the 161 people given the death penalty, at least 48
civilians have already been executed from January 2015 to May 2017.
Under international law, including under Article 6 of the Covenant, the
death penalty can only be carried out pursuant to a final judgment of a
competent court. The safeguards to be afforded throughout the legal
proceedings to ensure a fair trial in cases in which the death penalty may
be imposed should be at least equal to those contained in Article 14 of the
Covenant.”101
187) The UN Human Rights Committee considered these reports and adopted
concluding observations some of which are of relevance and are as follows:
“23. The Committee is concerned at the extension of the jurisdiction of
military courts to cases transferred from Anti-Terrorism Courts and to
persons detained under the Actions (in Aid of Civil Power) Regulation.
The Committee is also concerned that the courts have convicted at least
274 civilians, allegedly including children, in secret proceedings and
sentenced 161 civilians to death. It is also concerned that about 90 percent
of convictions are based on confessions; that the criteria used for the
selection of cases to be tried by these courts are not clear; that defendants
are not given the right to appoint legal counsel of their own choosing in
practice or an effective right to appeal in the civilian courts; and that the
charges against the defendants, the nature of evidence, and written
judgments explaining the reasons for conviction are not made public. It is
further concerned that the military courts allegedly convicted at least five
101 International Commission of Jurists, UN Human Rights Committee, 120th Session, Geneva, 3rd to 28th July
2017, para 5,6,12,16,17,18,19,21,25,28.
70
“missing persons” whose cases were being investigated by the
Commission of Inquiry on Enforced Disappearances (Arts. 2, 6, 7, 9, 14
and 15).
24. The State party should (a) review the legislation relating to the
military courts with a view to abrogating their jurisdiction over civilians
as well as their authority to impose the death penalty; (b) reform the
military courts to bring their proceedings into full conformity with Articles
14 and 15 of the Covenant to ensure a fair trial.
25. The Committee is concerned that the domestic legislation fails to
provide a definition of torture and to criminalize it in compliance with
Article 7 of the Covenant and international standards; that torture is
allegedly widely used by the police, military and security forces, and
intelligence agencies; and that allegations of torture are not promptly and
thoroughly investigated and perpetrators are rarely brought to justice
(Arts. 2, 7, 14 and 15)
26. The State party should (a) amend its laws to ensure that all elements
of the crime of torture are prohibited in accordance with article 7 of the
Covenant and to stipulate sanctions for acts of torture that are
commensurate with the gravity of the crime; (b) ensure prompt, thorough
and effective investigations into all allegations of torture and ill treatment,
prosecute and, if convicted, punish the perpetrators, with penalties
commensurate with the gravity of the offence, and provide effective
remedies to victims, including rehabilitation; (c) ensure that coerced
confessions are never admissible in legal proceedings; (d) take all
measures necessary to prevent torture including by strengthening the
training of judges, prosecutors, the police and military and security
forces.”102
188) The concerns of human rights violations imminent in Military Courts trying
civilians has been the subject matter of reports of various organisations. The
Special Rapporteur on the Independence of Judges and Lawyers tendered a
102 Human Rights Committee, Concluding Observations on the Initial Report of Pakistan, Adopted by the
Committee at its 120th Session (3-28 July 2017), para 23-26.
71
report which was transmitted to the General Assembly in its 68th session in
August 2013. Some of the observations in this report are significant. They are as
follows:
“1. The present report is submitted in accordance with resolution 17/2 of
the Human Rights Council.
…
13. Issues relating to the establishment and functioning of military
tribunals lie at the core of the Special Rapporteur's mandate. Both the
current Special Rapporteur and her predecessor, Leandro Despouy, have
paid considerable attention to the question of the establishment and
operation of military and special tribunals, in particular for the trial of
terrorism-related cases (See A/HRC/8/4, A/HRC/11/41, A/HRC/20/19,
E/CN.4/2004/60, E/CN.4/2005/60, A/61/384, A/62/207 and A/63/271).
14. The Special Rapporteur has observed that the administration of justice
through military tribunals raises serious concerns in terms of access to
justice, impunity for past human rights abuses, the independence and
impartiality of military tribunals and respect for the fair trial rights of the
accused.
15. In the present report, the Special Rapporteur addresses these concerns
and proposes a number of solutions that are premised on the view that
States that establish military tribunals should ensure that such tribunals
are an integral part of the general judicial system and function with
competence, independence and impartiality, guaranteeing the exercise and
enjoyment of human rights, in particular the right to a fair trial and the
right to an effective remedy. Also, their jurisdiction should be restricted to
offences of a military nature committed by military personnel.
…
20. Over time, there has been an increasing tendency to curb the
jurisdiction of military tribunals. The traditional model of military justice,
according to which the person who gives the orders sits in judgment, has
72
progressively undergone important changes, with the result that military
tribunals have increasingly been incorporated, as a specialized branch,
into the general justice system. Several countries have abolished the
operation of military tribunals in peace time altogether and transferred the
responsibility for adjudicating alleged wrongdoings by military personnel
to the ordinary courts and/or disciplinary bodies.
…
31. Sometimes, the personal jurisdiction of military tribunals extends to
include civilians who are assimilated to military personnel by virtue of
their function and/or geographical presence or the nature of the alleged
offence. These may include civilians who are employed by the armed
forces or are stationed at or in proximity of a military installation, persons
who have committed crimes that are treated as military offences and
persons who have committed crimes in complicity with military personnel.
In some countries, cases concerning terrorism and other serious crimes
against the State are also referred to military tribunals.
…
38. The principle of the separation of powers requires that military
tribunals be institutionally separate from the executive and the legislative
branches of power so as to avoid any interference, including by the
military, in the administration of justice. In this regard, principle 13 of the
draft principles governing the administration of justice through military
tribunals states that military judges should have a status guaranteeing
their independence and impartiality, in particular in respect of the military
hierarchy. In the commentary to this principle, it is noted that the statutory
independence of military judges vis-å-vis the military hierarchy must be
strictly protected, avoiding any direct or indirect subordination, whether
in the organization and operation of the system of justice itself or in terms
of career development for military judges (E/CN.4/2006/58, para. 46).
…
73
46. The Special Rapporteur on the independence of judges and lawyers
has stated on several occasions that using military or emergency courts to
try civilians in the name of national security, a state of emergency or
counter-terrorism is a regrettably common practice that runs counter to
all international and regional standards and established case law (see, for
example, E/CN.4/2004/60, para. 60). This observation is also reflected in
the findings of other special procedures mandate holders.
47. International human rights treaties do not address the trial of civilians
by military tribunals explicitly. Nevertheless, a number of soft law
instruments and the jurisprudence of international and regional
mechanisms show that there is a strong trend against extending the
criminal jurisdiction of military tribunals over civilians.
…
49. In line with this position, principle 5 of the draft principles governing
the administration of justice through military tribunals states that military
courts should, in principle, have no jurisdiction to try civilians and that, in
all circumstances, the State shall ensure that civilians accused of a
criminal offence of any nature are tried by civilian courts. In the
commentary to that principle, it is noted that the practice of trying
civilians in military tribunals presents serious problems as far as the
equitable, impartial and independent administration of justice is
concerned, and is often justified by the need to enable exceptional
procedures that do not comply with normal standards of justice (see
E/CN.4/2006/58, para. 20).
50. A number of other international instruments also recommend that
States restrict the jurisdiction of military tribunals over civilians in favour
of ordinary jurisdiction.
…
74. The right of the accused to legal representation of his or her choice
assumes particular relevance with regard to proceedings before military
74
tribunals. In line with the International Covenant on Civil and Political
Rights, principle 15 (e) of the draft principles governing the
administration of justice through military tribunals states that everyone
charged with a criminal offence has the right to defend himself or herself
in person or through legal assistance of his or her own choosing and the
right to be informed of the right to counsel and to receive legal assistance
if he or she does not have sufficient means and the interests of justice so
require.
…
85. In most countries where a military justice system exists, persons
convicted of a military crime have the right to appeal the conviction before
a higher tribunal, either a military or a civilian court of appeal. Sentences
handed down by courts of second instance may be appealed further before
the supreme court, which is in some cases integrated by military
personnel. In some countries, the decisions of military tribunals cannot be
appealed and the only remedy available is recourse to a court of
cassation, where there is one.
86. The integrity of the justice system is a precondition for democracy and
the rule of law. The justice system must be structured on the pillars of
independence, impartiality, competence and accountability in order for the
principles of independence of the judiciary and the separation of powers
can be duly respected.” 103
189) The Human Rights Committee has also had occasion to deal with complaints in
relation to trial by Military Courts. In a complaint relating to an accused tried in
Cameroon, the Human Rights Committee made the following observations,
“7.5 The Committee notes the State party’s argument that the author’s
trial was conducted according to the legislation in force and that he
benefited from an official interpreter during the hearings. It also notes the
author’s argument that the court was not independent, that he had little
103 Note by the Secretary General, General Assembly (A/68/285) 7 August 2013, para
1,13,14,15,20,31,38,46,47,49,50,74,85,86.
75
opportunity to communicate with his lawyer, who had no access to the
indictment and was therefore not able to prepare his defence adequately,
and that the written evidence on which the indictment was based was not
produced in court. The Committee recalls its general comment No. 32, in
which it considers that the State party must demonstrate, with regard to
the specific class of individuals at issue, that the regular civilian courts
are unable to undertake the trials, that other alternative forms of special
or high-security civilian courts are inadequate for the task and that
recourse to military courts is unavoidable. The State party must further
demonstrate how military courts ensure the full protection of the rights of
the accused pursuant to article 14. In the present case, the State party has
not shown why recourse to a military court was required. In commenting
on the gravity of the charges against the author, it has not indicated why
the ordinary civilian courts or other alternative forms of civilian court
were inadequate for the task of trying him. Nor does the mere invocation
of conduct of the military trial in accordance with domestic legal
provisions constitute an argument under the Covenant in support of
recourse to such courts. The State party’s failure to demonstrate the need
to rely on a military court in this case means that the Committee need not
examine whether the military court, as a matter of fact, afforded the full
guarantees of article 14. The Committee concludes that the trial and
sentencing of the author by a military court discloses a violation of article
14 of the Covenant.”104
190) In a similar complaint relating to Uzbekistan, the Human Rights Committee
made the following observations,
“9.3 The Committee has also noted the author’s claim that her son was
never brought before a judge or other officer authorized by law to exercise
judicial power in order to verify the legality of his arrests and placement
in pre-trial detention, but that the decisions to have him arrested and
detained were taken by prosecutors only. The Committee recalls its
established jurisprudence, according to which article 9, paragraph 3, of
104 Akwanga v Cameroon (1813/08), para 7.5.
76
the Covenant is intended to bring the detention of a person charged with a
criminal offence under judicial control and recalls that it is inherent to the
proper exercise of judicial power that it be exercised by an authority
which is independent, objective and impartial in relation to the issues dealt
with. In the circumstances of the present case, the Committee is not
satisfied that the public prosecutor may be characterized as having the
institutional objectivity and impartiality necessary to be considered an
―officer authorized to exercise judicial power‖ within the meaning of
article 9, paragraph 3. The Committee therefore concludes that there has
been a violation of this provision.”105
191) The Inter-American Court of Human Rights has also been critical of States
which allow civilians to be tried by Military Courts. In Petruzzi et al. v. Peru,
the IACtHR observed that,
“128. The Court notes that several pieces of legislation give the military
courts jurisdiction for the purpose of maintaining order and discipline
within the ranks of the armed forces. Application of this functional
jurisdiction is confined to military personnel who have committed some
crime or were derelict in performing their duties, and then only under
certain circumstances. This was the definition in Peru’s own law (Article
282 of the 1979 Constitution). Transferring jurisdiction from civilian
courts to military courts, thus allowing military courts to try civilians
accused of treason, means that the competent, independent and impartial
tribunal previously established by law is precluded from hearing these
cases. In effect, military tribunals are not the tribunals previously
established by law for civilians. Having no military functions or duties,
civilians cannot engage in behaviors that violate military duties. When a
military court takes jurisdiction over a matter that regular courts should
hear, the individual’s right to a hearing by a competent, independent and
impartial tribunal previously established by law and, a fortiori, his right to
due process are violated. That right to due process, in turn, is intimately
linked to the very right of access to the courts.
105 Musaev v Uzbekistan (1914-6/09), para 9.3.
77
129. A basic principle of the independence of the judiciary is that every
person has the right to be heard by regular courts, following procedures
previously established by law. States are not to create “[t]ribunals that do
not use the duly established procedures of the legal process […] to
displace the jurisdiction belonging to the ordinary courts or judicial
tribunals.
…
131. This Court has held that the guarantees to which every person
brought to trial is entitled must be not only essential but also judicial.
“Implicit in this conception is the active involvement of an independent
and impartial judicial body having the power to pass on the lawfulness of
measures adopted in a state of emergency.
132. In the instant case, the Court considers that the military tribunals that
tried the alleged victims for the crimes of treason did not meet the
requirements implicit in the guarantees of independence and impartiality
that Article 8(1) of the American Convention recognizes as essentials of
due process of law.
133. What is more, because judges who preside over the treason trials are
“faceless,” defendants have no way of knowing the identity of their judge
and, therefore, of assessing their competence. Compounding the problem
is the fact that the law does not allow these judges to recuse themselves.
…
161. The Court observes, as it did earlier (supra 134), that proceedings
conducted in the military courts against civilians for the crime of treason
violate the guarantee of the competent, independent and impartial tribunal
previously established by law, recognized in Article 8(1) of the
Convention. The right to appeal the judgment, also recognized in the
Convention, is not satisfied merely because there is a higher court than the
one that tried and convicted the accused and to which the latter has or
may have recourse. For a true review of the judgment, in the sense
required by the Convention, the higher court must have the jurisdictional
78
authority to take up the particular case in question. It is important to
underscore the fact that from first to last instance, a criminal proceeding
is a single proceeding in various stages. Therefore, the concept of a
tribunal previously established by law and the principle of due process
apply throughout all those phases and must be observed in all the various
procedural instances. If the court of second instance fails to satisfy the
requirements that a court must meet to be a fair, impartial and
independent tribunal previously established by law, then the phase of the
proceedings conducted by that court cannot be deemed to be either lawful
or valid. In the instant case, the superior court was part of the military
structure and as such did not have the independence necessary to act as or
be a tribunal previously established by law with jurisdiction to try
civilians. Therefore, whereas remedies, albeit very restrictive ones, did
exist of which the accused could avail themselves, there were no real
guarantees that the case would be reconsidered by a higher court that
combined the qualities of competence, impartiality and independence that
the Convention requires.”106.
106 Castillo Petruzzi et al. v. Peru (1999), Series C No. 52, para 128,129, 131-133, 161.
79
XII. RESTITUTION
192) The protection of human rights is now generally recognised to be a fundamental
aim of modern international law, and as a result, international human rights law
has inevitably reduced the content of the reserved domain of State sovereignty.
“…No state can credibly claim that its treatment of those within its territory or
jurisdiction is exclusively an internal matter”107. As a precursor to human rights
law, the law on diplomatic protection has played an important role in setting
some benchmarks for the protection of individuals. From the international
minimum standard to the ICCPR and beyond, international law has increasingly
accommodated within its rubric, principles and standards that seek to further the
cause of protection of human rights.
193) The Commentary on Remedies in International Human Rights Law notes that,
“The atrocities perpetrated during the Second World War brought about a
fundamental change in the law. Today, concern for the promotion and
protection of human rights is woven throughout the United Nations Charter,
beginning with the preamble, which “reaffirm[s] faith in fundamental human
rights, in the dignity and worth of the human person, in the equal rights of men
and women and of nations large and small…”.108
194) The principles of State Responsibility are now well entrenched. Attempts at
codification of principles that would apply for fixing State Responsibility and
fashioning remedies have been attempted by different institutions since the early
20th Century and on 31 May 2001, the International Law Commission (ILC)
adopted the Articles on the Responsibility of States for Internationally Wrongful
Acts (ARSIWA).
195) Although, the articles have not attained the status of a Convention, they are
“…an active and useful part of the process of international law. They are
considered by courts and commentators to be in whole or in large part an
107 Remedies in International Human Rights Law, Third Edition, Dinah Shelton, page 1.
108 Ibid., page 7.
80
accurate codification of the customary international law state responsibility
…”.109
196) In the Bosnian Genocide case, this Court noted that “The rules for attributing
alleged internationally wrongful conduct to a State do not vary with the nature
of the wrongful act in question in the absence of a clearly expressed lex
specialis. Genocide will be considered as attributable to a State if and to the
extent that the physical acts constitutive of genocide that have been committed
by organs or persons other than the state’s own agents were carried out, wholly
or in part, on the instructions or directions of the State, or under its effective
control. This is the state of customary international law, as reflected in the ILC
Articles on State Responsibility”.110
197) Pakistan has knowingly, wilfully and brazenly violated the provisions of Article
36 of the Vienna Convention. The rights under Article 36 of the individual
Jadhav and of the sending State, India, have been violated. Consequences must
follow and these consequences would be based on the principles of State
Responsibility. “Of all the breaches of international law that give rise to State
Responsibility, those involving injury to aliens are the closest to modern
international human rights violations. The considerable jurisprudence
developed by Claims Commissions and other Tribunals... provides instructive
precedent on the theory and practice of remedies for violations of individual
rights...”111
198) Sources of international law, such as conventions (the Vienna Convention is one
such source) are intended to crystallize principles of law, which transcend State
sovereignty in the application of some of the principles. These principles
encompass the foundation of the rule of law which must govern the conduct of
nations. The commentary to Article 30 of ARSIWA states that, “The function of
cessation is to put an end to a violation of international law and to safeguard
109 State Responsibility, The General Part, First Edition, James Crawford, page 43.
110 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), ICJ Rep. 2007 p.43, p. 209.
111 Remedies In International Human Rights Law, Third Edition, Dinah Shelton, page 35.
81
the continuing validity and effectiveness of the underlying primary rule. The
responsible State’s obligation of cessation thus protects both the interests of the
injured State or States and the interests of the international community as a
whole in the preservation of, and reliance on, the rule of law”112.
199) There are situations where the “result of cessation may be indistinguishable
from that of restitution, for example where the conduct required by each is the
freeing of hostages or the return of objects on premises seized…While the
consequences of past acts cannot always be erased, it is always possible to take
action in relation to future events.” 113
200) Article 35 of the ARSIWA deals with restitution. It reads thus:
“A State responsible for an internationally wrongful act is under an
obligation to make restitution, that is, to re-establish the situation which
existed before the wrongful act was committed, provided and to the extent
that restitution:
(a) is not materially impossible;
(b) does not involve a burden out of all proportion to the benefit
deriving from restitution instead of compensation.”
201) The commentary on Article 35 in the ARSIWA discusses the remedy of
restitution and states that “Restitution may take the form of material restoration
or return of territory, persons or property, or the reversal of some juridical act,
or some combination of them. Examples of material restitution include the
release of detained individuals, the handing over to a State of an individual
arrested in its territory, the restitution of ships, or other types of property,
including documents, works of art, share certificates, etc. The term “juridical
restitution” is sometimes used where restitution requires or involves the
modification of a legal situation either within the legal system of the responsible
112 Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, 2001,
Article 30 §5. – The text was adopted by International Law Commission at its fifty-third session, in 2001,
and submitted to the General Assembly as a part of the Commission’s report covering the work of that
session (A/56/10)
113 State Responsibility, The General Part, First Edition, James Crawford, page 465.
82
State or in its legal relations with the injured State. Such cases include the
revocation, annulment or amendment of a constitutional or legislative provision
enacted in violation of a rule of international law, the rescinding or
reconsideration of an administrative or judicial measure unlawfully adopted in
respect of the person or property of a foreigner or a requirement that steps be
taken (to the extent allowed by international law) for the termination of a
treaty…”.114
202) The ARSIWA recognises restitution as a remedy which is foremost amongst the
forms of reparation, because “…restitution most closely conforms to the general
principle that the responsible State is bound to wipe out the legal and material
consequences of its wrongful act by re-establishing the situation that would
exist if that act had not been committed…”.115
203) The notion of juridical restitution expressly covers the annulment or rescinding
of a judicial measure, i.e. if the verdict of a Military Court is at all capable of
elevation to the notion of a judicial measure. Material restitution includes
measures such as the release of an arrested individual. Material impossibility is
not the same as legal or practical difficulties116 –“As Article 32 makes clear, a
State ‘may not rely on the provisions of its internal law as justification for
failure to comply with its obligations’.”117
114 Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, 2001,
Article 35 §5. – The text was adopted by International Law Commission at its fifty-third session, in 2001,
and submitted to the General Assembly as a part of the Commission’s report covering the work of that
session (A/56/10)
115 Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, 2001,
Article 35 §3. – The text was adopted by International Law Commission at its fifty-third session, in 2001,
and submitted to the General Assembly as a part of the Commission’s report covering the work of that
session (A/56/10)
116 Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, 2001,
Article 35 §5, 8. – The text was adopted by International Law Commission at its fifty-third session, in 2001,
and submitted to the General Assembly as a part of the Commission’s report covering the work of that
session (A/56/10)
117 State Responsibility, The General Part, First Edition, James Crawford, page 513.
83
204) The Human Rights Committee has, in cases where allegations of violation of the
ICCPR were established, applied principles of State Responsibility by ordering
the release, or a retrial with all the guarantees, and if not possible then release of
the detenu whose rights were violated. 118
205) This Court fashioned the relief in Avena based upon facts that presented
themselves. In those cases, the United States argued that while even if there had
been a breach of Article 36, the internal systems and the domestic law were
robust and fully protective of the rights of an accused so as to conform to the
highest standards of due process. In the circumstances, this Court accepted that
the review and reconsideration within the American system was sufficient by
way of restitution.
206) In the present case, the elements that would merit restitution by way of release
of the person detained and annulment of the verdict of the Military Court,
include:
a) The facts surrounding his arrest have been preserved by Pakistan as a closely
guarded secret. Jadhav was kidnapped from Iran, and circumstances
surrounding his presence in Pakistan are not clear. No details of his “arrest”,
or his whereabouts at the time of the “arrest” are known. A former official of
the Pakistan Army also purportedly stated on electronic media that Jadhav
had been taken from Iran.
b) For three weeks after his “arrest”, he was kept in captivity, without
intimation to India about his “arrest”.
c) He was “arrested” on 3 March 2016. On 25 March 2016, his “confession”
was recorded – even before the “First Information Report” was registered (on
8 April 2016).
d) Pakistan has tried to use every opportunity – including at the hearing of the
application for provisional measures – to play his “confessional” video, to
justify its conduct.
e) Despite repeated requests by India, Pakistan has brazenly violated Article 36
of the Vienna Convention.
118 A list of these decisions is in Annex 13
84
f) Even when Pakistan stated it shall consider consular access based on India’s
response to request for assistance in investigations, that came at a stage after
Jadhav’s “trial” was already over. Such offer has to be viewed in the context
in which it was made. First, Pakistan aired the video of Jadhav’s
“confession”, then it made a request to India for “assistance” in regard to
investigation of offences which had been “disclosed” by Jadhav in his
“confession”. Pakistan is aware that rights under Article 36 of the Vienna
Convention cannot be subject to conditions of the kind notified.
g) Despite repeated requests, including by the parents of Jadhav, Pakistan has
refused to disclose, even after conclusion of the so-called “trial”, the
“charges” against Jadhav, the “evidence” that was used against Jadhav and
the “judgment” of the Military Court. Jadhav’s parents have been denied
visas to visit him even after his conviction – knowing that he faces the death
sentence, he is not allowed to meet anyone from the Indian High
Commission or even his parents.
207) Finally, if the decision of the Military Court is merely annulled without
releasing Jadhav, he will be left at the mercy of the Military authorities in
Pakistan, for a fresh “trial” by the Military authorities, which would defeat the
established principles of international law mandating due process. In fashioning
reliefs, the Court will not sanctify the working of a Military Court that has taken
over the prosecution of civilians, applying the military codes of procedure, and
which court was presided over by a military official, and in which no lawyers of
Jadhav’s choice were allowed to assist him in his defence, due regard also being
had to the offences with which he was “charged” involving the penalty of a
death sentence. The nature of the institution where Jadhav would be tried is
such that it fails to meet the standards required by international law – even by
the minimum standard test, and in any event, it is an institution censured by the
Human Rights Committee.
85
XIII. CONCLUSION
208) In its Application, filed on 8 May 2017, India set out its case that established
beyond a shadow of a doubt that Pakistan has been in egregious breach of its
obligations under Article 36 of the Vienna Convention.
209) India sought reliefs in the following terms:
a) A relief by way of immediate suspension of the sentence of death awarded to
the accused.
b) A relief by way of restitutio in integrum, 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 Article 14 of the 1966 International Covenant on Civil and
Political Rights, is violative of international law and the provisions of the
Vienna Convention, and
c) Restraining 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,
d) If 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.
210) The Pakistan Army Act, 1952 contains a provision [Section 132], which confers
upon the federal government the power to annul the proceedings of any court
martial on the ground that they are illegal or unjust. For the reasons and grounds
set out in the Application and in this Memorial, there can be little doubt that the
conviction and sentence of the Military Court, based on a so-called
“confession”, in whole or in part, of Jadhav, is illegal and patently unjust. This
Court is empowered to declare the conviction and sentence arrived at in brazen
violation of Article 36 rights as being unjust and illegal, and can direct Pakistan
to exercise its powers under Section 132 to annul the decision.
86
211) In any event, this Court can declare the actions of Pakistan in convicting and
sentencing Jadhav as being illegal, for the reason that the conviction and
sentence has been vitiated by a brazen violation of consular access rights under
the Vienna Convention and also by virtue of egregious violations of
international law, being a denial of the minimum standards of due process and
violation of the rights under the ICCPR.
212) An appropriate remedy, by way of restitution in the present case, would be to
direct the Indian national to be released forthwith and to be permitted to return
to India safely, following annulment of the illegal and unjust decision of the
Military Court. The question of review and reconsideration in the present case
would not arise, for three reasons:
i) Under Pakistan law, the trial will once again be conducted by a Military
Court. The Pakistan Military Courts, to the extent they exercise jurisdiction
over civilians, are not compliant with the provisions of the ICCPR, and do
not even satisfy the minimum standards of international law. If this Court
were to ask such a court to review and reconsider its decision, it would in a
manner sanctify, in some form or manner, the working of a system of “trial”
contrary to the ICCPR, to which Pakistan is a party, contrary to international
law, and thereby confer some legitimacy on a court which has been the
subject-matter of criticism by the European Parliament, and the Human
Rights Committee of the United Nations. Any such review or
reconsideration, if ordered, would be a setback to the work done by human
rights commissions seeking to persuade countries to give up this practice of
military courts being conferred with jurisdiction to try civilians;
ii) Considering the surcharged atmosphere evidenced by the statement of the
Adviser to the Prime Minister on Foreign Affairs, a high-ranking functionary
of the Pakistan establishment, and
iii) The stated belief that Jadhav is guilty, expressed publicly in this fashion,
defies credulity to believe that Jadhav could, indeed, receive a ‘fair trial’ in
Pakistan.
87
213) It is significant that on its plain language Article 36 admits of no exceptions.
The reason is obvious – there is no circumstance which justifies a deviation
from the principles of due process, which ensures a fair trial. Article 36 makes
this right a living reality in relation to aliens. Denying rights under Article 36
would seriously jeopardise due process rights themselves. International
institutions have been at pains to remind States of their obligation to adhere to
the due process standards even in the matter of investigating terrorism-related
offences and prosecuting offenders. Conventions dealing with terrorism have
expressly recognised consular access, reiterating and reinforcing the criticality
of a provision such as Article 36. As far as States which have signed and ratified
the Vienna Convention are concerned, their obligations under Article 36 are
untrammelled by the seriousness of the accusations against an accused. On the
contrary, the more serious the allegations, the greater the need for procedural
fairness.
88
XIV. SUBMISSIONS
214) FOR THESE REASONS, the submissions of the Government of India,
respectfully request this Court to adjudge and declare that,
a) Pakistan acted in egregious breach of Article 36 of the Vienna Convention on
Consular Relations, in:
(i) Failing to inform India, without delay, of the arrest and/or detention of
Jadhav,
(ii) Failing to inform Jadhav of his rights under Article 36 of the Vienna
Convention on Consular Relations,
(iii) Declining access to Jadhav by consular officers of India, contrary to their
right to visit Jadhav, while under custody, detention or in prison, and to
converse and correspond with him, or to arrange for his legal
representation.
And that pursuant to the foregoing,
(i) Declare 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
Jadhav, which are also to be given effect as mandated under Article 14 of
the 1966 International Covenant on Civil and Political Rights, is violative
of international law and the provisions of the Vienna Convention;
(ii) Declare that India is entitled to restitutio in integrum;
(iii)Restrain Pakistan from giving effect to the sentence or conviction in any
manner, and direct it to release the Indian National, Jadhav, forthwith, and
to direct Pakistan to facilitate his safe passage to India;
(iv) In the alternative, and if this Court were to find that Jadhav is not to be
released, then restrain Pakistan from giving effect to the sentence awarded
by the Military Court, and direct it to take steps to annul the decision of
the military court, as may be available to it under the laws in force in
Pakistan, and direct a trial under the ordinary law before civilian courts,
after excluding his confession that was recorded without affording
consular access, in strict conformity with the provisions of the ICCPR,
with full consular access and with a right to India to arrange for his legal
representation.
215) India reserves the right to modify or extend the terms of its submissions, as well
as the grounds invoked in this Memorial.
RESPECTFULL Y SUBMITTED
/ ~\\\ J
Î
Dr. Deepak Mittal
Agent of the Republic of India
Before the International Court of Justice
13 September 2017
...
89
Certification
I certify that the Annexes are truc copies of the documents referred.
Dr. Deepak Mittal
Agent of the Republic oflndia
90
91
LIST OF ANNEXES
Annex 1 Notes Verbale issued by India on 25 March 2016 (1.1), 30
March 2016 (1.2), 6 May 2016 (1.3), 10 June 2016 (1.4),
11 July 2016 (1.5), 26 July 2016 (1.6), 22 August 2016
(1.7), 3 November 2016 (1.8), 19 December 2016 (1.9), 3
February 2017 (1.10), 3 March 2017 (1.11), 31 March
2017 (1.12), 10 April 2017 (1.13), 14 April 2017 (1.14),
19 April 2017 (1.15) and 26 April 2017 (1.16).
Annex 2 Note Verbale issued by Pakistan, on 23 January 2017
(without attachment)
Annex 3 Note Verbale issued by Pakistan, on 21 March 2017
Annex 4 Press Release issued by Inter Services Public Relations,
on 10 April 2017
Annex 5 Note Verbale issued by Pakistan, on 10 April 2017
Annex 6 Press Statement made by the Adviser to the Prime
Minister of Pakistan, on 14 April 2017
Annex 7 News reports in ‘Jehan Pakistan’ and ‘Business Standard’
Newspapers about briefing by Spokesperson of the Inter
Services Public Relations of Pakistan, on 17 April 2017
Annex 8 Letter from External Affairs Minister, Government of
India, to the Adviser to the Pakistan Prime Minister on
Foreign Affairs, on 27 April 2017
Annex 9 Press Briefing of Government of Pakistan, on 20 April
2017
Annex 10 India Pakistan Agreement on Consular Access, of 21 May
2008
Annex 11 Copy of news report in ‘Dawn’ Newspaper, of 15 April
2017 and news report in Lahore News, of 18 May 2017
Annex 12 Press Release issued by Inter Services Public Relations,
on 22 June 2017
Annex 13 List of decisions by the Human Rights Committee under
the International Covenant on Civil and Political Rights