‘No Right to Appeal for Kulbhushan Jadhav’ Pakistan Supreme Court Informed, Despite ICJ Ruling

Pakistan Defence Ministry lawyer said Kulbhushan Jadhav was not allowed the right to appeal after the ICJ order because the international court had only addressed the issue of consular access in his case.

(Source: NDTV)

The Pakistani Supreme Court was told on Wednesday that Indian national Kulbhushan Jadhav was never granted the right to appeal his conviction because the 2019 ruling by the International Court of Justice (ICJ) only required consular access, not a legal right to challenge his sentence, the Dawn reported.

Earlier, in June 2019, the International Court of Justice (ICJ) ruled in favour of India, affirming Jadhav’s right to consular access and instructing Pakistan to review and reconsider his conviction and death sentence.

However, on Wednesday (April 16), Pakistan’s Defence Ministry lawyer, Khawaja Haris Ahmed, referenced Jadhav’s case during a hearing before a constitutional bench of the Supreme Court. The session was related to the trials of Pakistani citizens convicted by military courts for their alleged roles in the large-scale protests that erupted following former Prime Minister Imran Khan’s arrest in May 2023.

Responding to criticism that Pakistani citizens convicted by military courts after the May 9 violence are not being given the same appeal options as Jadhav. Haris further argued that Pakistan’s 2021 ICJ (Review and Re-consideration) Act was a “unique jurisdiction” created specifically for compliance with the ICJ ruling.

The Dawn reported, “At The Hague, it was claimed before the ICJ that Pakistan was in breach of Article 36 of the Vienna Convention on Consular Relations 1963 for not providing the facility of consular access to foreign nationals accused of spying, the counsel told the seven-judge Constitutional Bench. As a result, Pakistan enacted the International Court of Justice (Review and Re-consideration) Act 2021, Khawaja explained, adding the law allowed for the review and reconsideration of military court orders, including those related to foreign nationals, to ensure compliance with the Vienna Convention.”

Mr Jadhav was captured in Balochistan in March 2016 and later confessed to his association with the Indian spy agency and his involvement in espionage and terrorism in Pakistan. In 2017, the Field General Court Martial (FGCM) had awarded him the death sentence, which the then army chief confirmed.

International Court of Justice (ICJ) 2019 verdict

After India approached the International Court of Justice, the ICJ on 17 July 2019 ruled in favour of India, stating that:

It is undisputed that Pakistan has not granted any Indian consular officer access to Mr. Jadhav. India has made several requests for consular access since 25 March 2016. The Court therefore concludes that Pakistan has breached the obligations incumbent on it under Article 36, paragraph 1 (a) and (c), of
The Vienna Convention, by denying consular officers of India access to Mr. Jadhav, contrary to their right to visit him, to converse and correspond with him, and to arrange for his legal representation.

This was a binding rule, and the ICJ made it clear that “Review and Re-consideration” must be effective and not merely symbolic.

Impact on India-Pakistan relations

The case has been a major source of diplomatic tension between the two nuclear neighbours. With this latest move, India may:

1.) India may re-approach the ICJ or UN for enforcement mechanisms.

2.) Push the matter on the International human rights platform.

3.) Take up the issue in bilateral and multilateral talks, possibly impacting regional diplomacy.