ICJ rejects India’s plea for acquittal, repatriation of Kulbhushan - Updates, News & Discussion

[The Eagle]

Oh its amazing seeing you spin it, bcoz if pakistan had given India consular access India would hardly have any case. If you guys have such a solid case India wouldnt have to strong u guys till now for such simple things. This rises multiple questions in the case. Not even a single evidence has been presented for his involvement in any terrorist act which i think is the single biggest concern.
Some things never change.........
View attachment 569789

You are not reading the case contents, Indian Prayers, ICJ ruling & findings shared in Verdict. Even speaking of Vienna Article, Pakistan-India had a bilateral agreement and Pakistan can deny to to provide access as per the same agreement. You can quote & again but you are not going into details or searching for them. Its like a time consuming & exhausting exercise to elaborate the whole case, circumstances involved, Law & Rulings and agreements like this again.

I will make another attempt to summarize & try to conclude the whole case, proceeding & verdict as follows:

India prayed 5 basic points...

1. Pakistani Military Court sentence be treated as violation of Intentional Law,
2. KJ sentence by Pakistani Military Court be set-aside,
3. KJ be released and be sent to India,
4. If not released then Military Court decision be dismissed & matter shall be proceeded in civil court,
5. consular access be provided & if asked to reconsider/review, it will be inadequate.

So ICJ verdict transpires that,

• Indian prayer No. 1 = Rejected which is acknowledgment to the Justice System of Pakistan & our Military Courts.
• Indian prayer No. 2 = Rejected as sentence is not set-aside.
• Indian prayer No. 3 = Rejected & he will remain with Pakistan.
• Indian prayer No. 4 = Rejected as Military Court decision is upheld by ICJ,
• Indian prayer No. 5 = partly approved as consular access be provided but for review & reconsider, ICJ mentioned that Pakistan can do so by way of own choosing.

Conclusively, ICJ is a platform that surely does not believe in capital punishment but still, did not dismiss Death Sentence of KJ for which, India reached knowing as capital punishment is not favoured in that part of world but failed. ICJ fully acknowledged the quality justice & Pakistani legal system as well as proceedings of Military Court because KJ's decision remains same. Furthermore, KJ's both passports are now verified & proven original before ICJ.

Death sentence is not reversed or rejected as per Indian prayer rather, suspended and that is also not new because, any criminal whosoever reaches the higher forum/files an appeal than his/her punishment remains suspended until & unless the Order of the appellate authority. KJ's appeal is already lying on desk of COAS who did not decide the appeal as the matter was pending in ICJ due to Indian petition.

COAS chose to follow the best norms of law & kept it pending till decision of ICJ under our commitments to the International Law. We had a choice by not going to ICJ in reply to India petition but still, Pakistan did so that India shall not be provided any opportunity to make it controversial especially having an un-controlled & clueless media. Pakistan reaching ICJ on notice, is also testimony of our commitment to the International Law and an affirmation that KJ trial was transparent, based upon evidence/facts and was properly proceeded.

The only point that India succeeded partially is to provide consular access for KJ but that too will be decided by State of Pakistan/Government because we have a bilateral agreement between Pakistan-India that no party can deny especially India in this case. Still, we provided him access & permitted his family to meet him following the Human Rights. Furthermore, it is up-to Pakistan as how the matter will be proceeded as also announced by ICJ to follow our way of choosing. As Military Court Proceedings & Order are not rejected nor ICJ found them in violation of International law neither the order by Military Court is dismissed hence, Pakistan will reconsider/review KJ appeal by way of own choosing..... under the Law of the Land/State and following the same Judicial Procedure which was already adopted.

India did know all that and was well aware of the facts except for one, as per my observation that Delhi did not think that Pakistan Court be it Civil or Military, would have followed all the legal norms/practices. Also, India did try to manipulate & divert the focus of everyone from real facts by claiming big & then propagating the wrong output having a large scale media coverage. I can further observe that India was not interested in KJ or anyone else at all rather, reached ICJ merely to wash her name off the findings of sponsoring terrorism in the region but got nothing instead, helped us to validate the same what Pakistan has been saying and ICJ as well acknowledged by way of upheld the decision of Pakistan Military Court.

This ICJ verdict will also help us to shut many domestic trolls, moles & international agents that used to malign Military Courts having no idea of judicial process but always went on tirade of malign to please their handlers abroad. From domestic political clowns to so-called activists as well as journalist on foreign payroll are having the nightmares after ICJ verdict. The whole Lot being sponsored through third parties via Dubai based offices etc which mostly leads to Indian involvement along with some other entities; weren't expecting such verdict nor spent less to lose it like this.

ICJ verdicts supports Pakistan narrative & serves many of our purposes at once especially for those who hates Military to their core & never miss a chance to disrespect State Institutes. We might be seeing lot of articles with different subjects being covered under this ICJ verdict and that will provide enough ammo to shoot down propaganda machines. By the same observation, India not just lost the case of KJ at ICJ but also, Indian proxies inside Pakistan in different offices, be dealt accordingly and the way of our choosing.

I must thank ICJ for validating that Pakistan Military Court law is qualitative & follows all the judicial norms/process and in fact, it is the branch of Civil Courts Law. This verdict also provides enough lashing to shut domestic political jokers, foreign paid activists, hired journalists & Pakistan hating liberal mafia.

Regards,

 

[Umair Nawaz]

 

[ghazi52]

 

[VCheng]

I must thank ICJ for validating that Pakistan Military Court law is qualitative & follows all the judicial norms/process and in fact, it is the branch of Civil Courts Law.

Could you please quote the part of the ICJ Ruling that validates the above, thanks.

 

[TOPGUN]

India, looses again haha pathetic nation a terrorist state !!!!!!!

 

[The Eagle]

Could you please quote the part of the ICJ Ruling that validates the above, thanks.

Validating as ICJ did not set-aside the Order of Pakistan Military Court. I was explaining the Order from Pakistan prospective and a positive legal point and I was not quoting the Verdict specifically. Read in context.

 

[VCheng]

Validating as ICJ did not set-aside the Order of Pakistan Military Court. I was explaining the Order from Pakistan prospective and a positive legal point and I was not quoting the Verdict specifically. Read in context.

The ICJ clearly states its reasoning as follows due to lack of jurisdiction to set aside the verdict:

"135. With regard to India’s submission that the Court declare that the sentence handed down by Pakistan’s military court is violative of international law and the provisions of the Vienna Convention, the Court recalls that its jurisdiction has its basis in Article I of the Optional Protocol. This jurisdiction is limited to the interpretation or application of the Vienna Convention and does not extend to India’s claims based on any other rules of international law (see paragraph 36 above). India refers to Article 14 of the International Covenant on Civil and Political Rights to support its requests for remedies. In accordance with the rule reflected in Article 31, paragraph 3 (c), of the Vienna Convention on the Law of Treaties, the Covenant may be taken into account, together with the context, for the interpretation of the Vienna Convention on Consular Relations. The Court notes, however, that the remedy to be ordered in this case has the purpose of providing reparation only for the injury caused by the internationally wrongful act of Pakistan that falls within the Court’s jurisdiction, namely its breach of obligations under Article 36 of the Vienna Convention on Consular Relations, and not of the Covenant."

and further observes:

"136. As regards India’s claim based on the Vienna Convention, the Court considers that it is not the conviction and sentence of Mr. Jadhav which are to be regarded as a violation of the provisions of the Vienna Convention. In the Avena case, the Court confirmed that “the case before it concerns Article 36 of the Vienna Convention and not the correctness as such of any conviction or sentencing”, and that “it is not the convictions and sentences of the Mexican nationals which are to be regarded as a violation of international law, but solely certain breaches of treaty obligations [on consular access] which preceded them” (Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, I.C.J. Reports 2004 (I), p. 60, paras. 122-123)."

This portion is specially relevant:

"139. The Court considers that a special emphasis must be placed on the need for the review and reconsideration to be effective. The review and reconsideration of the conviction and sentence of Mr. Jadhav, in order to be effective, must ensure that full weight is given to the effect of the violation of the rights set forth in Article 36, paragraph 1, of the Convention and guarantee that the violation and the possible prejudice caused by the violation are fully examined. It presupposes the existence of a procedure which is suitable for this purpose. The Court observes that it is normally the judicial process which is suited to the task of review and reconsideration (see Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, I.C.J. Reports 2004 (I), pp. 65-66, paras. 138-140)."

 

[Smoke]

To my fellow Pakistani's.. don't bother bickering with India. Let the results do the talking.

 

[The Eagle]

the Court considers that it is not the conviction and sentence of Mr. Jadhav which are to be regarded as a violation of the provisions of the Vienna Convention.

Conviction comes after his arrest and investigation and then sentence is based upon Court Proceedings as well as evidences & KJ's fail to come clear or defend him or proving himself as innocent. Conviction & sentence; remained the way are done. You can twist and read your way & I will read & understand my way. Simple is that. You can argue in attempt to degrade Pakistan stand or even favour India but for me (Pakistan) it is indeed the verification to the justice & proceeding done by Military Court.

Consular access & Pakistan-India bilateral agreement, will be read over again and we will decide whether to provide consular access for KJ by India or not. As said in other thread, DG ISPR pretty much explained the way Pakistan found ICJ verdict in our favour. You can chose otherwise.

Thank you,

 

[Amaa'n]

But ICJ also never accepted him as a spy. It asked to review the judgement

thanks to Vcheng, there had to be no effort made by me to open up the judgement and get the relevant section for you:

"136. As regards India’s claim based on the Vienna Convention, the Court considers that it is not the conviction and sentence of Mr. Jadhav which are to be regarded as a violation of the provisions of the Vienna Convention. In the Avena case, the Court confirmed that “the case before it concerns Article 36 of the Vienna Convention and not the correctness as such of any conviction or sentencing”, and that “it is not the convictions and sentences of the Mexican nationals which are to be regarded as a violation of international law, but solely certain breaches of treaty obligations [on consular access] which preceded them” (Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, I.C.J. Reports 2004 (I), p. 60, paras. 122-123)."

Him being a spy was not even the 'Prayer' by Indian team......and ICJ did not even consider the violation of vienna convention with regards to sentencing

 

[VCheng]

Consular access & Pakistan-India bilateral agreement, will be read over again and we will decide whether to provide consular access for KJ by India or not.

Intriguing that Pakistan still has the option of deciding to follow the ICJ ruling or not. A decision by its leadership either way will have pros and cons to it. It will be interesting to watch what happens next. I am out till then.

ICJ did not even consider the violation of vienna convention with regards to sentencing

The court acknowledged its lack of jurisdiction over this matter clearly.

It further observed the following:

"141. The Court notes that, according to Pakistan, the High Courts of Pakistan can exercise review jurisdiction. The Court observes, however, that Article 199, paragraph 3, of the Constitution of Pakistan has been interpreted by the Supreme Court of Pakistan as limiting the availability of such review for a person who is subject to any law relating to the Armed Forces of Pakistan, including the Pakistan Army Act of 1952. The Supreme Court has stated that the High Courts and the Supreme Court may exercise judicial review over a decision of the Field General Court Martial on “the grounds of coram non judice, without jurisdiction or suffering from mala fides, including malice in law only” (Said Zaman Khan et al. v. Federation of Pakistan, Supreme Court of Pakistan, Civil Petition No. 842 of 2016, 29 August 2016, para. 73). Article 8, paragraph 1, of the Constitution provides that any law which is inconsistent with fundamental rights guaranteed under the Constitution is void, but this provision does not apply to the Pakistan Army Act of 1952 by virtue of a constitutional amendment (ibid., para. 125). Thus, it is not clear whether judicial review of a decision of a military court is available on the ground that there has been a violation of the rights set forth in Article 36, paragraph 1, of the Vienna Convention.

142. The Court takes note of the decision of the Peshawar High Court in 2018. The High Court held that it had the legal mandate positively to interfere with decisions of military courts “f the case of the prosecution was based, firstly, on no evidence, secondly, insufficient evidence, thirdly, absence of jurisdiction, finally malice of facts & law” (Abdur Rashid et al. v. Federation of Pakistan, High Court of Peshawar, Writ Petition 536-P of 2018, 18 October 2018, pp. 147-148). The Government of Pakistan has appealed the decision and the case was still pending at the close of the oral proceedings in the present case."

 

[niaz]

What a diplomatic verdict, almost like the proclamations of the Delphi oracle; both the sides got something they wanted hence both claim that they have been vindicated.

I heard the verdict from start to finish, on more than half the accounts it went against Pakistan, however, in the key areas it went against India albeit the case would be retried. All Jadhav has got is a temporary stay of the execution.

IMHO nothing has changed, Mr.K. Jahdav will be given Consular access, he may even be allowed an Indian defense lawyer, but as the case will be tried in Pakistan according to Pakistani Laws, end result would still be same.

 

[Amaa'n]

The ICJ clearly states its reasoning as follows due to lack of jurisdiction to set aside the verdict:

"135. With regard to India’s submission that the Court declare that the sentence handed down by Pakistan’s military court is violative of international law and the provisions of the Vienna Convention, the Court recalls that its jurisdiction has its basis in Article I of the Optional Protocol. This jurisdiction is limited to the interpretation or application of the Vienna Convention and does not extend to India’s claims based on any other rules of international law (see paragraph 36 above). India refers to Article 14 of the International Covenant on Civil and Political Rights to support its requests for remedies. In accordance with the rule reflected in Article 31, paragraph 3 (c), of the Vienna Convention on the Law of Treaties, the Covenant may be taken into account, together with the context, for the interpretation of the Vienna Convention on Consular Relations. The Court notes, however, that the remedy to be ordered in this case has the purpose of providing reparation only for the injury caused by the internationally wrongful act of Pakistan that falls within the Court’s jurisdiction, namely its breach of obligations under Article 36 of the Vienna Convention on Consular Relations, and not of the Covenant."

and further observes:

"136. As regards India’s claim based on the Vienna Convention, the Court considers that it is not the conviction and sentence of Mr. Jadhav which are to be regarded as a violation of the provisions of the Vienna Convention. In the Avena case, the Court confirmed that “the case before it concerns Article 36 of the Vienna Convention and not the correctness as such of any conviction or sentencing”, and that “it is not the convictions and sentences of the Mexican nationals which are to be regarded as a violation of international law, but solely certain breaches of treaty obligations [on consular access] which preceded them” (Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, I.C.J. Reports 2004 (I), p. 60, paras. 122-123)."

This portion is specially relevant:

"139. The Court considers that a special emphasis must be placed on the need for the review and reconsideration to be effective. The review and reconsideration of the conviction and sentence of Mr. Jadhav, in order to be effective, must ensure that full weight is given to the effect of the violation of the rights set forth in Article 36, paragraph 1, of the Convention and guarantee that the violation and the possible prejudice caused by the violation are fully examined. It presupposes the existence of a procedure which is suitable for this purpose. The Court observes that it is normally the judicial process which is suited to the task of review and reconsideration (see Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, I.C.J. Reports 2004 (I), pp. 65-66, paras. 138-140)."

not the Judgement but ICJ press release:

VI. REMEDIES

The Court has found that Pakistan acted in breach of its obligations under Article 36 of the Vienna Convention: first, by not informing Mr. Jadhav of his rights; secondly, by not informing India, without delay, of the arrest and detention of Mr. Jadhav; and thirdly, by denying access to Mr. Jadhav by consular officers of India, contrary to their right, inter alia, to arrange for his legal representation. In the Court’s view, the first and third breaches by Pakistan, as just set out, constitute internationally wrongful acts of a continuing character. Accordingly, Pakistan is under an obligation to cease those acts and to comply fully with its obligations under Article 36 of the Vienna Convention. Consequently, Pakistan must inform Mr. Jadhav without further delay of his rights under Article 36, paragraph 1 (b), and allow Indian consular officers to have access to him and to arrange for his legal representation, as provided by Article 36, paragraph 1 (a) and (c). The Court considers the appropriate remedy in this case to be effective review and reconsideration of the conviction and sentence of Mr. Jadhav. In order to be effective, this process must ensure that full weight is given to the effect of the violation of the rights set forth in Article 36, paragraph 1, of the Convention and guarantee that the violation and the possible prejudice caused by the violation are fully examined. The Court takes full cognizance of the representations made by Pakistan. During the oral proceedings, the Agent of Pakistan declared that the Constitution of Pakistan guarantees, as a fundamental right, the right to a fair trial; that the right to a fair trial is “absolute” and “cannot be taken away”; and that all trials are conducted accordingly and, if not, “the process of judicial review is always available”. The Court considers that the violation of the rights set forth in Article 36, paragraph 1, of the Vienna Convention, and its implications for the principles of a fair trial, should be fully examined and properly addressed during the review and reconsideration process.

The Court notes that the obligation to provide effective review and reconsideration can be carried out in various ways. The choice of means is left to Pakistan. Nevertheless, freedom in the choice of means is not without qualification. The obligation to provide effective review and reconsideration is an obligation of result which must be performed unconditionally. Consequently, Pakistan shall take all measures to provide for effective review and reconsideration, including, if necessary, by enacting appropriate legislation. The Court finally considers that a continued stay of execution constitutes an indispensable condition for the effective review and reconsideration of the conviction and sentence of Mr. Jadhav.

 

[VCheng]

IMHO nothing has changed, Mr.K. Jahdav will be given Consular access, he may even be allowed an Indian defense lawyer, but as the case will be tried in Pakistan according to Pakistani Laws, end result would still be same.

It would be interesting to see the eventual outcome and how long it takes.

not the Judgement but ICJ press release:

VI. REMEDIES

The Court has found that Pakistan acted in breach of its obligations under Article 36 of the Vienna Convention: first, by not informing Mr. Jadhav of his rights; secondly, by not informing India, without delay, of the arrest and detention of Mr. Jadhav; and thirdly, by denying access to Mr. Jadhav by consular officers of India, contrary to their right, inter alia, to arrange for his legal representation. In the Court’s view, the first and third breaches by Pakistan, as just set out, constitute internationally wrongful acts of a continuing character. Accordingly, Pakistan is under an obligation to cease those acts and to comply fully with its obligations under Article 36 of the Vienna Convention. Consequently, Pakistan must inform Mr. Jadhav without further delay of his rights under Article 36, paragraph 1 (b), and allow Indian consular officers to have access to him and to arrange for his legal representation, as provided by Article 36, paragraph 1 (a) and (c). The Court considers the appropriate remedy in this case to be effective review and reconsideration of the conviction and sentence of Mr. Jadhav. In order to be effective, this process must ensure that full weight is given to the effect of the violation of the rights set forth in Article 36, paragraph 1, of the Convention and guarantee that the violation and the possible prejudice caused by the violation are fully examined. The Court takes full cognizance of the representations made by Pakistan. During the oral proceedings, the Agent of Pakistan declared that the Constitution of Pakistan guarantees, as a fundamental right, the right to a fair trial; that the right to a fair trial is “absolute” and “cannot be taken away”; and that all trials are conducted accordingly and, if not, “the process of judicial review is always available”. The Court considers that the violation of the rights set forth in Article 36, paragraph 1, of the Vienna Convention, and its implications for the principles of a fair trial, should be fully examined and properly addressed during the review and reconsideration process.

The Court notes that the obligation to provide effective review and reconsideration can be carried out in various ways. The choice of means is left to Pakistan. Nevertheless, freedom in the choice of means is not without qualification. The obligation to provide effective review and reconsideration is an obligation of result which must be performed unconditionally. Consequently, Pakistan shall take all measures to provide for effective review and reconsideration, including, if necessary, by enacting appropriate legislation. The Court finally considers that a continued stay of execution constitutes an indispensable condition for the effective review and reconsideration of the conviction and sentence of Mr. Jadhav.

I am quoting from the actual decision I linked previously. As I said above, it would be interesting to see the eventual outcome and how long it takes.

 

[The Eagle]

Intriguing that Pakistan still has the option of deciding to follow the ICJ ruling or not. A decision by its leadership either way will have pros and cons to it. It will be interesting to watch what happens next. I am out till then.

Yes, we will choose the way of our choosing and also, Justice (Retd.) Tasadduq Jilani (Pakistan's Adhoc Judge in ICJ) put a dissenting note in regard to Vienna Convention and consular access that it does not applies to the Spy and in fact, Vienna Convention would have thought to provide such remedy to any spy. (wording may vary but conclusion is same as said here) so the same note also bears the weight, being a Adhoc Judge and part of the same Bench as compare to asking Pakistan to provide Consular Access under Vienna Convention.

Now on the point of what happened next, Pakistan will follow the law & will consult the legal team over everything in verdict by ICJ.

This is what PM Said

and this is the same thing that whole Pakistan Team said in this matter after ICJ verdict. Will be interesting to see the next course of action but that too as per Law.