Kulbhushan Jadhav Case

International Islamic University Department of Shariah & Law India vs Pakistan: Kulbhushan Jadhav Case Kulbhushan Sudhir Jadhav, alleged alias Hussain Mubarak Patel, is an Indian national. It is alleged by the Pakistani government that he was arrested in the Pakistani province of Balochistan on charges of terrorism and spying for India's intelligence agency, the Research and Analysis Wing. On 10 April 2017, Indian foreign ministry said he had been "kidnapped last year from Iran and his subsequent presence in Pakistan has never been explained credibly". The Pakistani government stated that he was a serving commander in the Indian Navy who was involved in subversive activities inside Pakistan and was arrested on 3 March 2016 during a counter-intelligence operation in Balochistan. The Indian government recognized Jadhav as a former naval officer but denied any current links with him and maintained that he took premature retirement and was abducted from Iran. On 10 April 2017, Jadhav was sentenced to death by a Field General Court Martial in Pakistan. On 18 May 2017, the International Court of Justice stayed the execution pending the final judgment on the case.

Background Jadhav was born in Sangli, Maharashtra, on 16 April 1970 to Sudhir and Avanti Jadhav. His father is a retired Mumbai Police officer. Jadhav is married and has two children. His family resides in Powai, Mumbai. According to reports in the Pakistani media, Jadhav joined the Indian National Defence Academy in 1987 and was commissioned in the engineering branch of the Indian Navy in 1991. He began to gather information and intelligence within India after the 2001 attack on the Parliament of India. After 14 years of service, he was inducted into intelligence operations in 2003 and established a small business in Chabahar in Iran from where he made several undetected visits to Karachi and Balochistan.

Arrest On 3 March 2016, Jadhav was arrested inside Balochistan in Mashkel near the border region of Chaman. He was arrested during a counterintelligence raid conducted by security forces. India denied the claim and said he was abducted from Iran. Pakistani security forces reported Jadhav as a serving officer in the Indian Navy and stated that he was commissioned to the Research and Analysis Wing (RAW), India's external intelligence agency. Pakistan believed him to be involved in subversive activities in Balochistan and Karachi. Jadhav was soon shifted to Islamabad for interrogation. While according to Indian sources, Jadhav was kidnapped by Mullah Omar Irani of Jaish ul-Adl from Sarbaz City, Iran who later handed over Jadhav to the Pakistani Army.

Submitted By:

Umer Shaukat Khan 3257-FSL/LLB (E)/F-17

Submitted To:

Mr. Niaz Ahmed Abbasi

International Islamic University Department of Shariah & Law Activities Pakistan stated that Jadhav entered Chabahar with a visa stamped on a fake passport numbered L9630722 in 2003 where he got a new identity of Hussain Mubarak Patel – born in 30 August 1968, from Maharashtra, India. Pakistani officials claimed that his job was to destabilize Pakistan by strengthening a separatist movement in Balochistan and Karachi – a mission which officially began in 2013. Balochistan Home Minister Sarfraz Bugti said that Jadhav was obviously working for RAW and was in contact with Baloch separatists and militants, fueling sectarian violence in the province and the country. He further added that he was involved in financially supporting militants and that Jadhav has admitted his involvements in Karachi's unrest. Interrogation also reportedly revealed that naval combat training was being conferred to Baloch separatists, in an attempt to target the ports of Gwadar and Karachi. Pakistani authorities stated that, during his interrogation, he gave details about his funding and plans to destabilize the country. They added that Jadhav also disclosed the presence of other Indian intelligence operatives in the southern metropolis. During interrogation Jadhav also reportedly revealed that at Wadh, he was in contact with Haji Baloch, who provided financial and logistic support to Baloch separatists and the IS network in Karachi. He also said that the masterminds of the Safoora bus attack, where gunmen shot dead 45 Ismaili passengers, were also in contact with Haji Baloch. Jadhav added that he had met Baloch several times, sometimes for planning sectarian violence in Karachi and the rest of Sindh. Pakistan said that, based on Jadhav's information, it had arrested hundreds of undercover operatives. DGISPR told the press that Jadhav converted to Islam, adopted a false identity and worked at Gadani under the cover of a scrap dealer. He stated that Jadhav established a network of operatives, provided funds, arranged to smuggle people into the country for the purpose of terrorism and reportedly purchased boats at the Iranian port in Chabahar to target Karachi and Gwadar ports in an alleged terrorist plot. According to him, Jadhav's goal was to sabotage the China-Pakistan Economic Corridor through propaganda – with Gwadar port as a special target – and also to create disharmony among the Baloch nationalist political parties. He also said that Jadhav told the interrogators to use a code phrase – "your monkey is with us" – to inform his handlers and the Indian authorities about his arrest. DGISPR also claimed to have confiscated maps from him and enunciated that there could be no clearer evidence of foreign interference in Pakistan. He termed the arrest of intelligence or an armed forces officer of his rank a big achievement.

Indian government reaction The Indian Ministry of External Affairs stated that Jadhav was an Indian Navy officer but had retired prematurely and he had no current link with the government since his retirement. The Indian High Commission also sought consular access to Jadhav but Pakistan Submitted By:

Umer Shaukat Khan 3257-FSL/LLB (E)/F-17

Submitted To:

Mr. Niaz Ahmed Abbasi

International Islamic University Department of Shariah & Law did not agree to it. Pakistan's diplomat to India said that consular access wasn't automatic during cases related to security, explaining Jadhav had been travelling "under a fake name with an original Indian passport" since 2003.

Media coverage According to Indian sources, Jadhav was abducted by Pakistan's forces from the Iran-Pakistan border and Pakistan fabricated his documents and leaked them without realizing there were glaring inconsistencies in the same. According to sections of Indian media, the Sunni group Jaish ul-Adl is responsible for the kidnapping of Jadhav from the Iran-Pakistan border. According to Indian officials, Jadhav owned a cargo business in Iran and had been working out of Bandar Abbas and Chabahar ports. "It appears that he strayed into Pakistani waters. But there is also a possibility that he was lured into Pakistan sometime back and fake documents were created on him by the ISI.” Some Indian intelligence officials also suspected that Jadhav was abducted from the Iran– Pakistan border by an extremist radical group called Jaishul Adil. Jaishul Adil, designated a terrorist organization by Iran, is linked to Al Qaeda and has been often accused of targeting Iranian border guards. They also pointed to the inconsistencies between the claims made by Balochistan minister Sarfaraz Bugti that Jadhav was picked up from Chaman on the Afghan border, and those made by General Bajwa that he was picked from Saravan. Indian author and journalist Hussain Zaidi claimed that Jadhav was a spy and may have been arrested by Pakistan's Intelligence Bureau because of complacency setting in, after a stay period of 14 years. It is alleged that his phone was on surveillance and his habit of talking in Marathi while conversing with his family blew his cover, as it did not commensurate with his fake identity. According to Pakistani newspaper The News, German diplomat Gunter Mulack While speaking at the Pakistan Institute of International Affairs, claimed that Jadhav was caught by the Taliban and sold to Pakistani intelligence.[24]Pakistani newspaper The News also noted that no Taliban groups operate in Iran, and stated that Mulack's statement reflected a "poor understanding of the issues and the dynamics of regional politics. " After Jadhav's sentencing, Mulack told the Times of India that his information was based on "unconfirmed speculation from reliable sources which I cannot identify, nor confirm. Maybe it is not true." In April 2016, Islamabad briefed diplomats of various countries regarding Jadhav's arrest and his claimed involvement in terrorist activities. The evidence was also shared with the United States and United Kingdom. Separately, Pakistan's Interior Minister Nisar Ali Khanheld a meeting with the Iranian ambassador.[41] In September, Pakistan prepared a dossier outlining evidence of Indian-sponsored terrorism and provided it to the United Nations Secretary General. It included Jadhav's details.

Submitted By:

Umer Shaukat Khan 3257-FSL/LLB (E)/F-17

Submitted To:

Mr. Niaz Ahmed Abbasi

International Islamic University Department of Shariah & Law According to Indian newspaper and news channel NDTV, in December 2016, Sartaj Aziz, who functioned as the then Pakistan's Foreign Minister, told members of the country's senate that there was insufficient evidence presented of Jadhav's alleged espionage. "What the dossier contained on Indian spy Kulbhushan Yadav were mere statements. It did not have any conclusive evidence." and that they were waiting for more details. In January 2019, Vikram Sood who headed R&AW from 2000-2003 stated that Pakistan had no leverage over India on Jadhav. He stated, "No spy worth his salt will be caught with his passport. The charges against him are laughable.

Confession video During the joint conference held by the army and the government, a ''video confession'' by Jadhav was made public. Jadhav in the "video" alleged to be said that the Indian intelligence agency RAW was involved in destabilizing Pakistan. He also said that he was a serving officer of the Indian Navy and was working in Pakistan at the behest of the RAW. Referring to the video, Bajwa said, "There can be no clearer evidence of Indian interference in Pakistan," and added that Jadhav's activities were nothing short of state-sponsored terrorism. In the video, Jadhav, acknowledged that he launched a covert operation against Pakistan from the Iranian port of Chabahar for which he used to get instructions from Research and Analysis Wing's joint secretary Anil Gupta. He also said that the RAW had been funding the Baloch separatists for the Balochistan insurgency. Jadhav said: I am still a serving officer in the Indian Navy and will be due for retirement in 2022. By 2002, I commenced intelligence operations. In 2003, I established a small business in Chabahar in Iran. As I was able to achieve undetected existence and visits to Karachi in 2003 and 2004 and having done some basic assignments within India for RAW, I was picked up by RAW in 2013. In the video, Jadhav also revealed that he had been directing various activities in Karachi and Balochistan on instructions from RAW since 2013 and had a role in the deteriorating law and order situation in Karachi. While giving details of these activities, Jadhav said: These activities have been of anti-national or terrorist nature which resulted in the killing and wounding of Pakistani citizens. India has rejected the video confession. Union Minister Kiren Rijiju claimed, "It is a completely doctored video, fake video made by Pakistan. They are just cooking up stories and doctoring videos to defame India." Indian agencies have stated that the video released by Pakistan was heavily edited and the audio has been spliced in several places.

Submitted By:

Umer Shaukat Khan 3257-FSL/LLB (E)/F-17

Submitted To:

Mr. Niaz Ahmed Abbasi

International Islamic University Department of Shariah & Law Role of Iran On 3 April, it was reported that Iran was investigating whether Jadhav crossed the Pakistan-Iran border illegally after the matter was taken up by Pakistani officials in Rouhani visit to Islamabad. However, Rouhani denied the report as a rumor, saying that the matter was not even mentioned. Iranian Ambassador to India Gholamreza Ansari said that Iran was probing into the matter. He said that once Iran completes the investigation, it will share the reports with "friendly countries". The Iranian embassy in Pakistan criticized "certain elements in Pakistan" for spreading "undignified and offensive" remarks that were attributed to Rouhani and added that these rumors "will not impact the positive views of the two countries regarding each other" as Pakistan had proven to be Iran's "trusted partner and neighbor".

Sentence On 10 April 2017, Jadhav was sentenced to death by a Field General Court Martial (FGCM) in Pakistan, following a confession before the magistrate and court. Jadhav's trial lasted three and a half months and the charges he was convicted for included spying for India, waging war against Pakistan, sponsoring terrorism, and destabilizing the state. He was tried in a military court due to his naval background and the sensitive nature of his case, involving espionage and sabotage. The sentence was confirmed by army Chief Qamar Javed Bajwa, and released via the ISPR. Pakistan's Defence Minister Khawaja Muhammad Asif stated that under the provisions of the Pakistan Army Act of 1952, Jadhav had the right to appeal against his conviction on three appellate forums within 40 days. India accused Pakistan for denying consular access to Jadhav despite several requests. Pakistan, it was said, had also not informed India about Jadhav's trial. As of 2 July 2017, the number of denied consular access stood at 18. Following the sentencing, the government of India summoned Pakistani High Commissioner to India, Abdul Basit and issued a demarche stating that the proceedings that led to Jadhav's sentencing were farcical and that India would regard Jadhav's execution as murder in the first degree. Basit replied to the Indian foreign secretary that "on the one hand you perpetrate terrorism in Pakistan, and record a protest against us on the other. We have not done anything wrong. A terrorist must be punished." In an interview to India Today, Basit said Pakistan held sufficient evidence against Jadhav and that it was shared with the Indian government. He also said that Jadhav was given a fair trial, including the right to seek clemency. This was in contrast to his stand before the senate in December 2016. In a statement issued in the Parliament of India on 11 April 2017, Rajnath Singh, India's Minister of Home Affairs, reiterated that Jadhav was kidnapped by Pakistani agencies from Iran and put through trial as a RAW agent. Sushma Swaraj, India's Minister of External Affairs said there was no evidence of any wrongdoing by Jadhav and termed his sentencing an act of "premeditated Submitted By:

Umer Shaukat Khan 3257-FSL/LLB (E)/F-17

Submitted To:

Mr. Niaz Ahmed Abbasi

International Islamic University Department of Shariah & Law murder". Swaraj said that if Pakistan implemented the death sentence, the bilateral relations between both countries would face dire consequences. During a briefing to the Senate of Pakistan, Pakistani defense minister Khawaja Asif stated that Jadhav's prosecution followed "due legal process" based on the country's laws, rules and regulations and "there was nothing in the legal proceedings that was against the law." He said that Jadhav had been provided a defending officer throughout the course of his trial. He rejected India's accusations of terming the trial a "premeditated murder". Asif added that Pakistan would allow no concessions to elements who threatened its security and stability, from inside the country or across the border.

International Court of Justice In May 2017, India approached the International Court of Justice (ICJ), asserting that Pakistani authorities were denying India its right of consular access to Jadhav in violation of Vienna Convention. The ICJ proceedings began in The Hague on 15 May to review the case. India and Pakistan both sent their legal teams to put forward their arguments, led by Harish Salve and Khawar Qureshi respectively. On 18 May 2017, the International Court of Justice stayed the hanging of Jadhav. On 22 June 2017, Pakistani sources confirmed that Jadhav had sought clemency from the country's army chief following his conviction. Pakistan also released a new confessional video of Jadhav, in which he stated that he visited Karachi twice for gathering intelligence on naval facilities. He also admitted to supporting and funding, on behalf of India's RAW, Baloch militants affiliated with the BLA and BRA, in addition to infiltrating and establishing "30 to 40 RAW operatives along the Makran Coast" for involvement in terrorist activities. Jadhav said that RAW's activities in Balochistan and Sindh were conducted under the direction of Anil Kumar Dhasmana. India's Foreign Ministry again dismissed the confession as "false propaganda", stating that Pakistan was trying to influence ICJ proceedings while denying the consular rights to Jadhav. ICJ did not allow Pakistan to play the video during the hearing. On 25 December, Jadhav's mother and wife met Jadhav in Islamabad after being allowed permission by Pakistani authorities. India subsequently denounced Pakistan for its handling of the visit of the wife and mother of Jadhav, saying they were harassed and prevented from talking to Jadhav freely. According to International Commission of Jurists; As oral hearings are due to commence on 18 February in India v. Pakistan (Jadhav case) before the International Court of Justice (ICJ), the International Commission of Jurists has Submitted By:

Umer Shaukat Khan 3257-FSL/LLB (E)/F-17

Submitted To:

Mr. Niaz Ahmed Abbasi

International Islamic University Department of Shariah & Law published the following Questions and Answers to clarify the key issues and relevant laws rose in the case. 1.

What are India’s allegations against Pakistan?

India has alleged “egregious violations of the Vienna Convention on Consular Relations (VCCR)” by Pakistan in connection with the detention, trial and conviction of Indian national Kulbhushan Sudhir Jadhav. Pakistani authorities reportedly arrested Kulbhushan Jadhav on 3 March 2016. The circumstances of his arrest remain in dispute between the Parties.

India was informed of the arrest on 25 March 2016. On 10 April 2017, Pakistan’s military announced Kulbhushan Jadhav had been convicted and sentenced to death by a military court for “espionage and sabotage activities against Pakistan.”1 India’s requests for consular access, made at least sixteen times starting from 25 March 2016, were either denied by Pakistan or made conditional upon India’s assistance in the investigation against Jadhav. India alleges that denial of consular access breaches Pakistan’s obligations under Article 36(1) of the VCCR.2 2.

What is Pakistan’s response?

According to Pakistan, Kulbhushan Jadhav was involved in espionage and terrorism-related activities, particularly in the province of Balochistan. Responding to India’s allegations, Pakistan argued: (1) The VCCR is not applicable to spies or terrorism due to the inherent nature of the offences of espionage and terrorism; (2) a bilateral agreement on consular access, signed by India and Pakistan in 2008, overrides the obligations under the VCCR; and (3) reservations made under Article 36(2) of the ICJ Statute are also applicable to cases under Article 36(1) of the ICJ Statute. 3.

What are the applicable laws in this case?

India and Pakistan are parties to the Vienna Convention on Consular Relations and the Optional Protocol to the VCCR.

Submitted By:

Umer Shaukat Khan 3257-FSL/LLB (E)/F-17

Submitted To:

Mr. Niaz Ahmed Abbasi

International Islamic University Department of Shariah & Law Article 36(1) of the VCCR, among other things, provides that when a national of a foreign country is arrested or detained, the detainee must be advised of the right to have the detainee’s consulate notified and that the detainee has the right to regular consultation with consular officials during detention and any trial. The Optional Protocol to the VCCR gives the International Court of Justice (ICJ) jurisdiction to try disputes that arise from the treaty. This basis of ICJ’s jurisdiction under the VCCR is distinct and separate from the generic basis for jurisdiction provided for under Article 36(2) of the ICJ Statute. India and Pakistan have both submitted a number of reservations to the generic basis, which does not evidently affect the jurisdiction of the ICJ to settle disputes under Article 36(1) of the ICJ Statute; though that is a question the ICJ may clarify in these proceedings. 4.

What does the 2008 bilateral agreement between India and Pakistan say?

The bilateral agreement, concluded in May 2008, states that the objective of the agreement is to further “the humane treatment of nationals of either country arrested, detained or imprisoned”. It lists a number of measures of cooperation, including: immediate notification of arrest or detention to their respective High Commissions; maintenance of a comprehensive list of people arrested or detained; and provision of consular access within three months of arrest or detention. The agreement also states that in cases of “arrest, detention or sentence made on political or security grounds, each side may examine the case on its merits.” The agreement does not make any reference to the VCCR. 5.

Can bilateral agreements override obligations under the Vienna Convention on Consular Relations?

Article 73(2) of the VCCR provides that “nothing in the present Convention shall preclude States from concluding international agreements confirming or supplementing or extending or amplifying the provisions thereof.” The VCCR is a multilateral treaty, to which the vast majority of States are party (179 at present). The obligations under the VCCR may be enhanced or clarified by bilateral treaties, but cannot be diluted or undermined, as affirmed by authoritative interpretation of the VCCR and general principles of treaty law, including Article 41(1) of the Vienna Convention on the Law of Treaties.

Submitted By:

Umer Shaukat Khan 3257-FSL/LLB (E)/F-17

Submitted To:

Mr. Niaz Ahmed Abbasi

International Islamic University Department of Shariah & Law 6.

Does the Vienna Convention on Consular Relations apply to alleged spies or people accused of terrorism-related offences?

The VCCR does not make any exception for people suspected of committing espionage or terrorism-related offences and the ICJ has in the past also not interpreted the treaty to exclude offences such as espionage or terrorism. Making the rights pertaining to consular access under the VCCR contingent upon the offence foreign nationals are charged with would undermine the purpose of the treaty. It would allow States to deny consular access to foreign nationals merely through a particular and unilateral characterization of their acts. Indeed, it is precisely for charges of the most serious nature that consular access will be most compelling, both for the State and the individual seeking such access. Since the right to consular access is applicable from the time of arrest or detention, denial of consular access based on charges would also fly in the face of the principle of presumption of innocence. 7.

What are provisional measures? What does the ICJ’s order on provisional orders say?

Pursuant to Article 41 of its Statute, the ICJ may issue orders for “provisional measures”. The object of provisional measures is to preserve the status quo concerning the rights and interests of the parties pending the judgment of the Court. Measures taken under Article 41 of the ICJ Statute are "provisional" in that they are indicated pending the final decision of the Court and that they cease to apply once the judgment of the Court is rendered. On 18 May 2017, the ICJ issued an order for provisional measures in response to India’s request, and directed Pakistan to “take all measures at its disposal” to ensure Jadhav is not executed pending the final decision of the Court. 8.

What are the next steps in the case? How long does it take for cases before the ICJ to conclude?

The ICJ is scheduled to hold public oral hearings in the case from 18 to 21 February 2019. 5 After the oral proceedings, the Court will likely deliberate in camera and sometime thereafter deliver its judgment at a public sitting. The judgment is final, binding on the parties to a case and without appeal. If the parties have no objection, their written pleadings are made public when oral proceedings commence.

Submitted By:

Umer Shaukat Khan 3257-FSL/LLB (E)/F-17

Submitted To:

Mr. Niaz Ahmed Abbasi

International Islamic University Department of Shariah & Law There is no way to accurately predict when the case will be decided after the conclusion of oral hearings. Judgments in previous cases involving similar disputes have been delivered even up to a year or longer after oral hearings conclude. 9.

What relief has India sought from the ICJ? What relief measures can the ICJ order?

India has requested a number of measures of relief from the ICJ, including: Suspension of Kulbhushan Jadhav’s death sentence; a directive to Pakistan to annul the death sentence; a declaration that Kulbhushan Jadhav’s military trial was in violation of the VCCR and international human rights law, including the right to fair trial under Article 14 of the ICCPR; a directive restraining Pakistan from giving effect to the death sentence; and a directive to Pakistan to release Kulbhushan Jadhav. The ICJ, pursuant to its jurisdictional competencies, can only decide whether Pakistan breached its obligations under Article 36 of the VCCR and order related relief. This may include, for example, directions to Pakistan to “review or reconsider” Jadhav’s conviction and sentence and to guarantee that similar breaches will not occur in future. In these particular proceedings, the ICJ would not have jurisdiction to make a declaration as to whether Jadhav’s trial was in violation of the ICCPR. It is also unlikely that the Court would decide it could order Jadhav’s release or rule on the lawfulness of military trials or the death penalty in Pakistan. 10.

Will the ICJ consider the lawfulness of the death penalty in Pakistan?

No, the case at issue is limited to consular access under the VCCR. Nonetheless, the case engages critical fair trial concerns, and, according to many experts and advocates, underscores one of inherent problems of the death penalty i.e. that fair trial violations that lead to the execution of a person are inherently irreparable. The International Commission of Jurists considers the death penalty a violation of the right to life and cruel, inhuman or degrading punishment and notes that a large majority of States, in repeated UN resolutions, have called on retentionist states to declare a moratorium on the practice with a view to abolition. 11.

What is the relationship between consular access and the right to a fair trial under international standards?

Under international standards, foreign nationals who are detained or arrested must also be promptly informed of their right to communicate with their embassy or consular post. The International Court of Justice has in other cases clarified that authorities have a duty to inform a foreign national of this right as soon as they realize a person is a foreign national or once there are grounds to think that the person is probably a foreign national. Submitted By:

Umer Shaukat Khan 3257-FSL/LLB (E)/F-17

Submitted To:

Mr. Niaz Ahmed Abbasi

International Islamic University Department of Shariah & Law The Inter-American Court of Human Rights has said the right to consular access “must be recognized and counted among the minimum guarantees essential to providing foreign nationals the opportunity to adequately prepare their defense and receive a fair trial.” 12.

Under what provisions of the law was Kulbhushan Jadhav tried in Pakistan? Are proceedings of Pakistan’s military courts compatible with international standards?

According to military sources, Kulbhushan Jadhav was tried under the Official Secrets Act, 1923, for “espionage and sabotage activities against Pakistan”. Evidence against Kulbhushan Jadhav includes a “confession” that was later made public and broadcast on Pakistani media. Pakistan’s Army Act, 1952, allows military courts to hear cases that arise out of the Official Secrets Act. Contrary to media reports, Kulbhushan Jadhav has not been tried pursuant to constitutional amendments that give military courts additional powers to try people accused of belonging to proscribed organizations that are associated with terrorism-related offences. Pakistani military courts are not independent and the proceedings before them fall far short of national and international fair trial standards. Judges of military courts are part of the executive branch of the State and continue to be subjected to military command; the right to appeal to civilian courts is not available; the right to a public hearing is not guaranteed; and a duly reasoned, written judgment, including the essential findings, evidence and legal reasoning, is denied. 13.

Are judgments of the ICJ binding?

Yes, ICJ’s judgments, where the Court is exercising contentious jurisdiction, are binding on the States that are party to the case, in respect of the particular case being decided. (The ICJ may also render advisory opinions under Article 96 of the UN Charter, but that is not relevant to the case of India v. Pakistan.) Article 94 (1) of the UN Charter states “each member of the United Nations undertakes to comply with the decisions of the International Court in any case to which it is a party.” Article 94 (2) provides “if any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.”

Related Cases: Spying for other countries or groups is in many cases illegal and punishable by law. Submitted By:

Umer Shaukat Khan 3257-FSL/LLB (E)/F-17

Submitted To:

Mr. Niaz Ahmed Abbasi

International Islamic University Department of Shariah & Law The following is a list of individuals that have either been imprisoned for spying, Individuals that have been arrested in connection to their spying activities. This list is incomplete; you can help by expanding it.

Name

Nationality

Summary

Conviction Date

Penalty

American

Convicted of spying for the Soviet 1994 Union and Russia

Life sentence (without parole)

American

Sold secret documents to the Soviet Union and is estimated to have received $60,000 from the KGB

February 26, 1999

24 Years and 4 Months

Belgian

Convicted for spying for the United Kingdom and its allies during the First World War

November 1916

Life sentence (released 2 years later)

American

Signals analyst who sold eavesdropping and code secrets to East Germany and the Soviet Union from 1983 to 1988

July 20, 1989

40-year sentence

American

Spied for Soviet and Russian intelligence services against the United States from 1979 to 2001

July 6, 2001

Life sentence (without parole)

American

Convicted for conspiracy to commit espionage for the government of Cuba

October 2002

25-year prison term followed by five years probation

Harold James Nicholson

American

twice-convicted spy for Russia's Foreign Intelligence Service

June 5, 1997

23 years 7month sentence

Stewart Nozette

American

Attempted espionage and fraud against the United States

2009

13-year sentence

American

Spied for and sold secret documents to the Soviet Union. Was known to have a photographic memory and as such never passed any physical documents on.

1983

Life sentence (Released November 24, 2015)

Aldrich Ames David Sheldon Boone Marthe Cnockaert

James Hall III Robert Hanssen Ana Montes

Ronald Pelton

Submitted By:

Umer Shaukat Khan 3257-FSL/LLB (E)/F-17

Submitted To:

Mr. Niaz Ahmed Abbasi

International Islamic University Department of Shariah & Law

Name

Nationality

Summary

Conviction Date

Penalty

American

Accused of spying for the Soviet Union and Russia, and pleaded guilty to conspiring and attempting to commit espionage

1997

27-year sentence

American

Passed classified information to Israel while working as an American civilian intelligence analyst

1987

Life sentence

George Trofimoff

American

Convicted for spying for the Soviet Union during the 1970s and 1980s

September 27, 2001

Life sentence

John Anthony Walker

American

Convicted of spying for the Soviet 1985 Union from 1968 to 1985

Earl Edwin Pitts

Jonathan Pollard

Submitted By:

Umer Shaukat Khan 3257-FSL/LLB (E)/F-17

Life sentence

Submitted To:

Mr. Niaz Ahmed Abbasi

International Islamic University Department of Shariah & Law Jadhav case (India v. Pakistan) Conclusion of the public hearings The Court to begin its deliberation THE HAGUE, 21 February 2019. The public hearings in the Jadhav case (India v. Pakistan) were concluded today. The Court will now begin its deliberation. During the hearings, which opened on Monday 18 February 2019 at the Peace Palace, the seat of the Court, the delegation of the Republic of India was led by Mr. Deepak Mittal, Joint Secretary, Ministry of External Affairs, as Agent. The delegation of the Islamic Republic of Pakistan was led by Mr. Anwar Mansoor Khan, Attorney General for Pakistan, as Agent. The Court’s Judgment will be delivered at a public sitting, the date of which will be announced in due course. Submissions of the Parties At the end of the hearings, the Agents of the Parties made the following submissions to the Court:

For India: “(1) The Government of India requests this Court to adjudge and declare that, Pakistan acted in egregious breach of Article 36 of the Vienna Convention on Consular Relations, 1963 (Vienna Convention) in: (i) (ii) (iii)

Failing to inform India, without delay, of the detention of Jadhav; Failing to inform Jadhav of his rights under Article 36 of the Vienna Convention on Consular Relations, 1963; Declining access to Jadhav by consular officers of India, contrary to their right to visit Jadhav, while under custody, detention or in prison, and to converse and correspond with him, or to arrange for his legal representation. and that pursuant to the foregoing,

(2) Declare that: (a)

The sentence by Pakistan’s Military Court arrived at, in brazen defiance of the Vienna Convention rights under Article 36, particularly Article 36 paragraph 1 (b), and in defiance of elementary human rights of Jadhav, which are also to be given effect as mandated under Article 14 of the 1966 International Covenant on Civil and Political Rights (ICCPR), is volatile of international law and the provisions of the Vienna Convention;

Submitted By:

Umer Shaukat Khan 3257-FSL/LLB (E)/F-17

Submitted To:

Mr. Niaz Ahmed Abbasi

International Islamic University Department of Shariah & Law (b)

India is entitled to restitution in interim;

(3) Annul the decision of the Military Court and restrain Pakistan from giving effect to the sentence or conviction in any manner, and (4) direct it to release the Indian National, Jadhav, forthwith, and to facilitate his safe passage to India; (5) In the alternative, and if this Court were to find that Jadhav is not to be released, then (i)

Annul the decision of the Military Court and restrain Pakistan from giving effect to the sentence awarded by the Military Court, or in the further alternative

(ii)

Direct it to take steps to annul the decision of the military court, as may be available to it under the laws in force in Pakistan, and in either event

(iv)

Direct a trial under the ordinary law before civilian courts, after excluding his confession that was recorded without affording consular access, and in strict conformity with the provisions of the ICCPR, with full consular access and with a right to India to arrange for his legal representation.”

For Pakistan: “The Islamic Republic of Pakistan respectfully requests the Court, for the reasons set out in Pakistan’s written pleadings and in its oral submissions made in the course of these hearings, to declare India’s claim inadmissible. Further or in the alternative, the Islamic Republic of Pakistan respectfully requests the Court to dismiss India’s claim in its entirety.”

Conclusion: Thus in all the matters in which India was a party before the ICJ, the court has examined its jurisdiction and decided the matter effectively. The ICJ, in the matter of Kulbhushan Jadhav being prima facie satisfied about the merits of India‟s case and the availability of its jurisdiction over the dispute has granted interim relief/provisional measure i.e. stay of execution of Kulbhushan Jadhav by invoking the provisions of the aforesaid articles. It is a matter of record that both India and Pakistan are signatories to the Vienna Convention on Consular Relations 1963 providing for consular assistance to their nationals who are facing trial in other counties and unequivocally and compulsorily conferring jurisdiction in the ICJ. Additionally, the doctrine of “pacta sunt servanda” which is a well recognized doctrine in international law requires that treaties entered into in good faith have to be carried out in good faith and any breach thereof amounts to violation of international law. Examined from this back drop there is no manner of doubt that consular access to India has been denied even though it is well known that military tribunals in Pakistan are opaque and operate in violation of national and international fair trial standards and fail to provide justice, truth and even proper remedies to under trials. In the Submitted By:

Umer Shaukat Khan 3257-FSL/LLB (E)/F-17

Submitted To:

Mr. Niaz Ahmed Abbasi

International Islamic University Department of Shariah & Law present case the court has jurisdiction as per Article 36 of the ICJ statute which has been recognized as compulsory ipso facto and without special agreement. In almost identical fact situation i.e. in the Lagrand case and in the case of Avena and other Mexican Nationals the ICJ has exercised its jurisdiction, stayed the execution and directed review and retrial. The case of Kulbhushan Jadhav is a test case for the ICJ to dispel the impression that international law is the vanishing point of jurisprudence.

Submitted By:

Umer Shaukat Khan 3257-FSL/LLB (E)/F-17

Submitted To:

Mr. Niaz Ahmed Abbasi