Reflections on the International Court of Justice Decision in the Jadhav Case (India v. Pakistan): Part II

[Raphael Schäfer & Kanad Bagchi are research fellows at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg Germany. This is part two of a two-part post. Part I can be found here.]  

On the Question of Remedies

Arguably, it is here that the case assumed critical importance not just for jurisprudence of international law as such but also for the parties to the dispute. The Court having found a violation of Art. 36 VCCR, what could India reasonably expect from the Court in terms of remedy?

Recall that both in LaGrand and in Avena, the Court felt constrained to grant any relief that would either substitute the decisions of the national court or reverse the same. As the Court noted in Avena “the case before it concerns Article 36 of the Vienna Convention and not the correctness as such of any conviction or sentencing” (Avena, Judgment of 31 March 2004, para. 122), it was similarly pre-disposed to reject India’s plea for “annulment” of the decision of the military court or order the release of Jadhav. Much less could the Court “direct a trial under the ordinary law before civilian courts” as was indicated by India in its oral proceedings.

Indeed, the most that the Court has been prepared to prescribe in the past is for a “review and reconsideration” of the convictions in the light of an Art. 36 VCCR violation ((LaGrand, Judgment of 27 June 2001, para. 128, Avena, Judgment of 31 March 2004, para. 153)). Conscious of that fact, India was at pains to show how “relief by way of review and reconsideration” would be “highly inadequate” in the present circumstances, given the limited grounds of review of military court decisions in Pakistan. This was not a wholly unreasonable plea given that the highest judicial authority in Pakistan had as recently in 2016 ruled that judicial review of military courts can be undertaken only on “grounds of coram non judice, without jurisdiction or suffering from mala fides, including malice in law only”. In other words, India argued that what perhaps was a suitable measure in both LaGrand and in Avena, given the nature of the US criminal justice system, would not suffice with respect to the Pakistani legal system.

How did the Court respond to these contentions? For most part, the Court shared an equal bit of skepticism with respect to the limited possibility of judicial review in Pakistan “it is not clear whether judicial review of a decision of a military court is available…” (para 141). Consequently, the Court perhaps went further than it had done in its previous decisions by prescribing not only an obligation to “review and re-consideration” but also directing specifically, the taking of “all measures” including, “enacting appropriate legislation” if need be (para 146). While indeed, the “choice of means is left to Pakistan” the requirement of “effectiveness” of review meant that such discretion was not “without qualification” (para 133-146). In this manner, the Court indicated its readiness to intervene and draw red lines to what may perhaps have seemed to be a rather broad and wide grant of discretion.

Moreover, in another significant move, one could argue, the Court found a way to bring back human rights claims as part of violation of Art. 36 VCCR. Recall that India had argued before the Court to declare that the military court sentence against Jadhav was not only a violation of VCCR but also an infringement of Art. 14 of the ICCPR, as denial of consular access to Jadhav affected his right to a fair trial. India had based its claim primarily on the jurisprudence of the Inter-American Court of Human Rights which, as is well known, has found that consular rights form part of the ‘due process’ guarantees under ICCPR. While it is true that the Court expressly declined any jurisdiction to adjudicate breaches of “international law obligations other than the Vienna Convention”, it nonetheless considered the principles of “fair trial” of “cardinal importance in any review and reconsideration”. In this way, human rights violations, which could not be directly argued for want of jurisdiction, nevertheless found primary significance in defining the scope of the remedy flowing from a breach of the obligations under Art. 36 VCCR. Whether this move is going to add to the optimism around reading the VCCR in the light of the corpus of international human rights law remains to be seen.  

That apart, the operative part of the Court order also enjoins Pakistan to inform Jadhav of his right without “further delay” and to allow Indian consular officials access to him. Much depends now on whether and how Pakistan seeks to give effect to the present decision. Evidence gleaned from LaGrand and Avena cases evokes much cause for concern, as the post decision implementation phase in the United States has been marred with non-compliance and in certain cases even a brazen repudiation of the Court’s directive. The US backlash against the ICJ was so strong that it culminated finally into US withdrawal from the Optional Protocol to the VCCR in 2005. In this regard, Pakistan’s domestic criminal justice system, especially its system of review against decisions of military courts, does not stimulate much confidence, in as much as an “effective review and consideration” of Jadhav’s case on the basis of violation of Art. 36 VCCR surely requires its judiciary to go beyond the narrow and limited grounds currently available. Further, given that the Court was clear on the fact that “the clemency process is not sufficient in itself” for the purposes of review and reconsideration, it begs the question to what extend does this imply that Pakistan has to undertake specific legal changes to give effect to the Court’s order. While, it is much too earlier to speculate on how Pakistan is going to react to the present decision, it is clear that the Jadhav case represents a step in the right direction and perhaps brings us a step closer towards imaging the role of the individual and human rights as central to the project of international law.