ICJ website silent on ‘stay’ of Kulbhushan Jadhav’s execution

Even as the Minister of External Affairs Sushma Swaraj tweeted on Tuesday evening that the International Court of Justice (ICJ) at The Hague had issued ‘an order’ on India’s petition seeking a stay on the execution of alleged Indian spy Kulbhushan Jadhav by Pakistan, the ICJ website, curiously, was silent about the order.

The minister had tweeted, “I have spoken to the mother of #KulbhushanJadhav and told her about the order of President, ICJ under Art 74 Paragraph 4 of Rules of Court.”

Significantly, she did not mention the word ‘stay’ in this particular tweet.

Sources at the ICJ told this correspondent that the Court hadn’t yet passed a stay order on Jadhav’s execution, expressing surprise at reports in the Indian media claiming otherwise.

“The ICJ has just sent a letter to the Pakistani government, stating that, under Article 74, the Court’s decision would be binding on Pakistan. The same letter was copied to Indian authorities,” sources said.

It is learnt that an ICJ press release clearing the air around the case would be released later on Wednesday.

On Tuesday evening, the ICJ website carried a press release that recorded the petition filed by India seeking ‘urgent relief’ and ‘interim measures’, pleading that unless the ICJ immediately stays the execution of Jadhav, Pakistan would carry out the death sentence delivered by a military court last month. The ICJ release made the following points about India’s petition:

• The Applicant states that Mr. Jadhav “will be subjected to execution unless the Court indicates provisional measures directing the Government of Pakistan to take all measures necessary to ensure that he is not executed until th[e] Court’s decision on the merits” of the case.
• India points out that Mr. Jadhav’s execution “would cause irreparable prejudice to the rights claimed by India”. India further indicates that the protection of its rights is a matter of urgency as “[w]ithout the provisional measures requested, Pakistan will execute Mr. Kulbhushan Sudhir Jadhav before th[e] Court can consider the merits of India’s claims and India will forever be deprived of the opportunity to vindicate its rights”.
• The Applicant adds that it is possible that the appeal filed by the mother of the accused on his behalf may soon be disposed of.

India’s petition to the ICJ was made public by the Court on Tuesday:

Kulbhushan Jadhav, a retired officer of the Indian Navy, was allegedly abducted from Iran, where he was running a business. But Pakistan claimed to have intercepted his conversations with his family members and arrested him from Balochistan. The Pakistan Government had also released a confession given by Jadhav, in which he allegedly admitted that he was an agent of India’s external intelligence agency Research & Analysis Wing (RAW) and, had been entrusted with the task of carrying out subversive activities in Balochistan and Sindh.

While the Indian media on Wednesday reported the ‘stay’ on the execution by the President of the International Court of Justice (ICJ) and eminent lawyer Harish Salve , who is representing India at the ICJ, suggested that the stay was binding on Pakistan, doubts are being raised about the veracity of the stay itself.

The MEA on Wednesday claimed in New Delhi that the ‘stay’ was granted because of Pakistan’s denial of consular access to Jadhav. The spokesperson held that India had made as many as 16 requests to Pakistan for access but each time the request was denied.

Pakistani media, on the other hand, reported that Pakistan had offered to consider the request if India agreed to its request for ‘ assistance’ in Pakistan’s investigation into Jadhav’s alleged links in India. While Pakistan officially refrained from commenting on the news about the ‘stay’ on Jadhav’s execution, Pakistani media reported merely that India had petitioned the ICJ.

Indian newspaper, The Hindustan Times, however, reported that in 1999 India had claimed that the ICJ had no jurisdiction over disputes between two members of the Commonwealth, a position that apparently was accepted then by the ICJ.

The newspaper quoted Narendra Singh, Secretary General, Indian Society of International Law as saying, “I am not sure it is a wise move to go to ICJ. Pakistan could cite precedence of India citing ICJ having no jurisdiction in a case in 1999 involving Pakistan.”

“Singh, a former head of foreign ministry’s legal and treaty division, was referring to India taking Pakistan to The Hague-based court in 1999. A Pakistani military plane had been shot down in the Indian air space over the Rann of Kutch. India told the ICJ it didn’t have the jurisdiction to hear the case, an argument accepted by the court,” added the report which can be read here: Remember the time India ignored ICJ? Why Pakistan may not comply with Kulbhushan Jadhav case order