Mysuru-born Kartikeya Garg, now a final year degree Law student of Christ University, Bengaluru, had an opportunity to undergo a month-long course on Public International Law at the famed International Court of Justice (ICJ), The Hague, Netherlands, in July this year. The selection was through competitive process. During his stay there, he was witness to the hearing on the high-profile case of Kulbhushan Jadhav. 

Kulbhushan Jadhav, an Indian national, was arrested by the Pakistan Government on March 3, 2016 on the allegations that he was spying for India’s intelligence agency, the Research and Analysis Wing (RAW).

In this incisive piece, Karitekya Garg, son of Aparna Garg, Divisional Railway Manager (DRM), South Western Railway (SWR), Mysuru Division, has penned his observations watching the Court proceedings. — Editor

By Kartikeya Garg

July 17, 2019. A bright sunny day greeted the otherwise overcast and windy “International City of Peace and Justice.” The Hague, the administrative capital of the Netherlands, which houses the International Court of Justice (ICJ), was gearing up to hear the Court’s verdict on one of its most high-profile cases in recent times. 

Normally, quite quiet (considering one sees more bicycles than cars on roads), scores of journalists had swarmed outside the beautiful gardens of the Court as early as 8 am. It was India Vs Pakistan, a storied rivalry that transcended, far beyond the cricket field. It involved a man’s life, and the Court was given the difficult task of determining whether Pakistan had the right to execute an Indian national (who was allegedly a spy), Kulbhushan Jadhav. 

As a final year law student from India, who was attending a three-week course in The Hague, I was fortunate to have the opportunity to attend the proceedings where the ICJ delivered its judgement in the case. The ICJ consists of 15 Judges from all around the world, who are elected by the United Nations General Assembly for a term of nine years, with an option of one re-election. 

Currently, the Bench consists of India’s own Justice Dalveer Bhandary as well. In this case, an ad hoc Judge was appointed from Pakistan, Justice Tassaduq Hussain Jillani taking the number of Judges up to 16. However, at the time of the verdict, we were informed that three Judges had recused themselves from the hearing. 

Sitting in the public gallery of the “Great Hall of Justice” of the Peace Palace, its balcony provided the perfect vantage point of the mood of the Court. 3The audience consisted of only the Indian and Pakistani delegations, as well as some of us privileged persons sitting at the end of the Hall and on the balcony. The nervous silence of the two delegations was broken only by the constant shutter sounds of the Press, furiously trying to record whatever snippets they could before they were escorted out of the Court Hall and into a separate Press Room where they could hear the verdict.

Grandeur of Court Hall 

The profession of Law generally, and Court Halls specifically are not associated with colour and over-the-top grandeur. Usually, when one thinks of the profession, one imagines monochromatic robes and a simple wooden décor. The Court, however, was a total contrast. 

Aptly named the ‘Peace Palace,’ the first thing that caught my eyes were four massive church-like windows that covered two walls of the Hall, covered in stained glass with fascinating artwork, while a large colourful painting (suggestive of Justice but with largely Catholic overtones) covered the other side. 

In the front of the Hall lay a massive wooden Bench; behind which 13 white, comfortable looking chairs were placed (the one in the middle slightly bigger, reserved for the President) for the great legal stalwarts who would decide the fate of Jadhav. The name and symbol of the International Court of Justice adorned the front of the Bench (in both its official languages, English and French) and the wooden floor was sprawled with a huge colourful carpet, behind which sat on either side the Indian and Pakistani delegations, waiting in eager anticipation.

As the Judges, clothed in their black robes and white knitted collars, walked into the Hall in a single file and took their respective seats on the imposing Bench, they were met with a staunch stillness as the audience rose from their seats in a show of respect. President of the ICJ, Justice Yusuf asked the audience to sit and proceeded to give out a landmark verdict. 

The President specified that he would only be reading the decision and the operative part of the judgement, rather than its entire text. For the next one-and- a-half-hours, the President spoke in an intriguing monologue, as the Court awaited its final verdict. Throughout, I sat in the balcony fervently making notes, trying to keep up with the learned Judge and making sure every detail was absorbed and recorded. 

Before analysing the judgement, however, it is important to understand the arguments and versions of facts given before the Court by both India and Pakistan during their arguments (that ran for four days, between Feb. 18 and 22, 2019), which the President left out from his reading of the judgement (but finds place in the official text which can be availed on the Court’s website). 

ICJ’s Judgement

The Court, through the course of its decision, held that Pakistan had breached its obligations under international law and the VCCR (Vienna Convention on Consular Relations) — consequently, it upheld all of India’s contentions. Calling Pakistan’s actions an “internationally wrongful acts of continuing character,” the Court directed Pakistan to give Jadhav full Consular access and must inform him of his right so that he can arrange for effective legal representation. 

However, with respect to the conviction and sentencing by the Pakistan Military Court, the ICJ declared that looking into the internal process of the former would lie outside the scope of its jurisdiction.  Nonetheless, the Court held that in order to give effect to the VCCR, “an effective review and reconsideration of the sentence and conviction” would be necessary. The means of such review, however, were not specified, with the Court allowing Pakistan to decide “by means of its own choosing,” rather than to grant India its prayer to try Jadhav in a Civil Court. 

Lastly, the Court ordered a continuing stay on the execution of Jadhav, until an effective review and reconsideration took place. This decision was unanimously given by all 15 permanent Judges of the ICJ. The lone dissent came unsurprisingly from the ad hoc Judge from Pakistan, Justice Jillani.

With this, the President concluded his monologue, and the operative part of the judgement was repeated by an interpreter in the other official language of the Court, French. Soon after, a package containing the judgement, marked with the red seal of the Court, were passed on to both delegations. As the audience rose while the Judges graciously left the Hall, we too were subsequently escorted out and back into the crowd outside the gates of the Peace Palace. 

Jadhav case: Conclusion

It means that Jadhav will not be executed in the near future. Rather, he will probably have a trial and full Consular access, which means the Indian Government can arrange for proper legal representation to have a fully transparent judicial process within Pakistan. 

The Court’s decision was very well-reasoned and pin-point, straying away from all the political issues that naturally arise in such a case (which were in fact brought up in the arguments made by both sides). It focused solely on the existence of an international obligation, and the consequent breach of such obligation, along with a rational interpretation of the VCCR. 

A possible concern that a lot of people have is what happens if Pakistan does not abide by the ICJ ruling and decides to execute Jadhav irrespectively (considering the ICJ does not have a strict enforcement mechanism per se). This I believe is not going to be the case, since it would lead to immense political pressure from the international community on Pakistan and would be detrimental to Pakistan’s reputation before the international sphere and the ICJ, which in all honesty it cannot afford. 

India, on the other hand, has been quick to celebrate the verdict, with some reporters calling it “a crushing victory” and “massive humiliation for Pakistan.” This is also not the case. Although the Court has sided with India, its decision does not expressly grant India the relief that it claimed for. It has not explicitly stated that Jadhav’s trial is going to be in a Civil Court. Rather, it allowed Pakistan to provide effective review and reconsideration by means of its own choosing. This means that Pakistan can still try Jadhav in a Military Court, which can create the same issues that India has complained about through the course of its arguments.

The only real victory for India is that Jadhav finally has Consular access, which under international law, is a right bestowed on him. Nonetheless, one can be sure that this is not the last page in this long and winding story between the two States (involving one man).