Name of the Student: Apoorva Kudari

Registration Number: 06

Programme: BA, LLB(Hons)

Semester: I Sem

Course Name: Political science I

Course Code: 5BAL1O2

Component: Article Review

Date of Submission: 30/11/2021

Submitted to: Prof. Tabasum Sultana

 ARTICLE REVIEW

ANALYSIS OF THE ILLEGAL ARREST CASE OF KULBHUSHAN

JADHAV UNDER THE PAKISTANMILITARY COURT THROUGH ICJ
-Iqlima Qorinabila Gunawan

INTRODUCTION OF THE AUTHOR:

Iqlima Qorinabila Gunawan is a Faculty of Law in Universitas Muhammadiyah Yogyakarta,

Indonesia.

ABOUT THE ARTICLE:

The goal of this study is to learn how the ICJ overturned Kulbhushan Jadhav’s wrongful
detention. The research method employed was normative legal research. Normative research
is a type of research that analyses documents using secondary material such as law,
adjudication, or legal theory, and can take the shape of scholarly opinions. This style of
prescriptive research makes use of qualitative analysis, which explains data in words or
sentences rather than statistics. Legal principles, legal classification, level of legal
synchronisation, legal comparisons, and legal history are among the issues examined in the
regulatory assessment. Pakistan, India claims, has neglected to notify it swiftly of the arrest
and detention of its citizens. It also claimed that Mr. Jadhav was not informed of his rights
under Article 36 of the Vienna Convention on Consular Relations that Indian consular officers
were denied access to Mr. Jadhav while he was detained, detained, and imprisoned, and that
they were unable to speak with, correspond with, or arrange for his legal representative. India
bases the Court’s jurisdiction on Article 36, paragraph 1 of the Court’s Statute and Article I of
the Optional Protocol to the Vienna Convention on Consular Relations on Compulsory
Settlement of Disputes in its Application.

ANALYSIS AND SUMMARY OF THE ARTICLE:

On May 8, 2017, India filed a complaint against Pakistan for allegedly violating the Vienna
Convention on Consular Relations of April 24, 1963 and in respect of the detention and trial of
an Indian citizen, Mr Kulbhushan Sudhir Jadhav; who had been sanctioned by a court martial
and was killed in Pakistan in April 2017. Jadhav is a former Indian Navy officer who was born
on April 16, 1970, in Sangli, Maharashtra, to Sudhir and Avanti Jadhav. His father is a retired
police officer from Mumbai. Jadhav is a father of two children. His parents and siblings live in
Mumbai. Pakistan, India claims, has neglected to notify it swiftly of the arrest and detention of
its citizens. It also claimed that Mr. Jadhav was not informed of his rights under Article 36 of
the Vienna Convention on Consular Relations that Indian consular officers were denied access
to Mr. Jadhav while he was detained, detained, and imprisoned, and that they were unable to
speak with, correspond with, or arrange for his legal representative. India bases the Court’s
jurisdiction on Article 36, paragraph 1 of the Court’s Statute and Article I of the Optional
Protocol to the Vienna

Convention on Consular Relations on Compulsory Settlement of Disputes in its Application.

Mr. Jadhav, an Indian national and retired Indian naval commander, was allegedly arrested on
March 3, 2016. On March 25, 2016, India was informed of this fact and has requested consular
access to the subject since then (more than thirteen times). The case for consular access to the
Indian national would be evaluated in light of the Indian side response to Pakistan request for
cooperation in the investigation process and early dispensation of justice; Pakistan said in a
note verbale to India on March 21, 2017. Restricting a state’s right of consular access to its
nationals, according to India, is a violation of Pakistan's commitments under the 1963
Vienna Convention on Consular Relations. (Hence referred to as VCCR). On April 17, 2017,
India learned through unofficial channels (the press) that Mr. Jadhav had been sentenced to
death by a military tribunal in Pakistan for his alleged involvement in espionage and terrorist
activities, and Pakistan reiterated its March 21, 2017 offer of consular access to Mr. Jadhav in
exchange for Indian cooperation in the investigation process. Armed conflict or war is a serious
possibility that can occur anywhere on the planet. We will never be able to predict when a war
may erupt in our country. As the Latin saying Si Vis Pacem Para Bellum states, the greatest
thing to do is to be prepared (if you want peace, prepare for war). Conflicts and violence in
various regions of the world are a human tragedy and a very regrettable occurrence. Peace is a
prized possession that every nation and country wish to achieve. The word peace can be
interpreted as a state in which there is no violence. While some others interpret peace as a state
of calm where there is no difference and conflict where individuals and groups of people live
in peace. Pakistan and India have been at odds since their independence in 1947, over matters
ranging from a robust diplomatic handover to the never-ending Kashmir dispute. For ages, war
and technological advancement have coexisted. For a long time, governments have been
working inside their militaries to build procedures that are successful and can function better
for armies to reduce combat deaths.
However, some conflicts, such as the one between India and Pakistan, cannot be avoided. One
of the most recent occurrences was the arrest of an Indian citizen in Baluchistan on 3 March
2016 as part of a counterintelligence operation carried out by Pakistani security personnel.
Kulbhushan Jadhav is accused of being an Indian spy working for the Research and Analysis
Wing of the Indian intelligence service (RAW). He is suspected of assisting the violent
sectarian and separatist movements in Baluchistan, as well as other terrorism-related actions.
The reported video upload is Jadhav confession to Inter-Services Public Relations (ISPR), the
Pakistan Army official media wing, which resulted in Jadhav’s death sentence by a Pakistani
military court on April 10, 2017. In response, India filed an appeal with the International Court
of Justice (ICJ), which resulted in the ICJ deferring Kulbhushan Jadhav’s execution until May
18, 2017. In fact, India and Pakistan are at odds over the matter. According to India, Jadhav
was kidnapped in Iran, where he lived after retiring from the Indian navy and conducted
business. Pakistan claims that Jadhav carried out espionage and terrorism on behalf of India in
Baluchistan, near the Iran-Pakistan border, where he unlawfully entered Pakistani territory.
Pakistan claims Jadhav possesses an Indian passport with the name Hussein Mubarak Patel,
which India refutes. To bolster his case, Pakistan released a video in which Jadhav admits to
espionage and terrorism in Pakistan at the request of India’s foreign intelligence agency, the
Research and Analysis Wing (known as RAW). India demanded the earliest consular access to
Jadhav on March 25, 2016, the same day the video was released. More than 10 Verbal Records
were provided to Pakistan by India, identifying Jadhav as an Indian citizen and requesting
consular access. India and Pakistan have hailed the International Court of Justice mid-course
decision as a success. Pakistan also applauded the verdict for rejecting New Delhi request to
release the spy, who readily admitted his guilt. The ICJ has gone out of its way to make
allowing consular access to spies a new priority in modern history.

CONCLUSION:

Pakistan’s allegations against an Indian called Kulbhushan Jadhav prompted India to file a
complaint with the International Court of Justice (ICJ) in The Hague. Pakistan has also broken
the Geneva Conventions by barring access to the Indian consulate, according to India. Pakistan
claims that Kulbhushan Jadhav does not require the services of a consultant because he is a
spy. Finally, the International Court of Justice (ICJ) instructed Pakistan not to execute Jadhav
pending the result of the ICJ trial. The International Court of Justice also requested that
Pakistan reconsider or evaluate its decision to execute or sentence Jadhav to death. Pakistan,
on the other hand, has yet to say whether it will comply with the ICJ’s request.