New Delhi: As the International Court of Justice (ICJ) began hearing the Kulbhushan Jadhav case Monday, senior Indian advocate Harish Salve challenged the death penalty awarded to the former Indian Navy officer by Pakistan, arguing that Islamabad was using the court to spread propaganda against New Delhi.
In April 2017, a Pakistani military court had convicted Jadhav of espionage and terrorism, and sentenced him to death.
During Monday’s court proceedings, which were streamed live, Salve said, “Pakistan’s story has always been strong on rhetoric and blurred on facts. India seeks relief that trial by military court in Pakistan fails to satisfy due processes. Jadhav’s continued custody without consular custody should be declared unlawful.”
On Tuesday, Pakistan will present its side of the arguments.
What is the ICJ?
The ICJ is the judicial arm of the United Nations (UN) constituted in June 1945. It was a successor to the Permanent Court of International Justice (PCIJ) and commenced operations in April 1946.
According to the terms of the charter, the court’s role is to settle legal disputes (contentious cases) between countries and also give its opinions on legal questions referred to it by authorised United Nations organs and specialised agencies.
The court sits at the Peace Palace in The Hague (Netherlands) and has two official languages — English and French.
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How does the ICJ work
According to the ICJ rules, ‘only States (States Members of the United Nations and other States which have become parties to the Statute of the Court or which have accepted its jurisdiction under certain conditions) may be parties to contentious cases’.
This means that the court has no jurisdiction to entertain pleas filed by individuals, NGOs, corporations or any other private entity. However, a state or a country may take up the cause on behalf of an individual and file a case listing all the wrongs done by another nation or state.
The matter then becomes State v. State.
The verdicts passed by the ICJ are enforceable by the UN Security Council. However, the enforcement is subject to a veto by the permanent members of the Security Council.
Who are the judges on the panel
The court comprises 15 judges who are elected by the United Nations General Assembly and the Security Council for a nine-year term. The UN General Assembly and the Security Council votes from a list of candidates nominated by the members of the Permanent Court of Arbitration (PCA). The voting takes place simultaneously, but independently. A candidate must win the majority vote of both houses to win a place on the ICJ panel.
To ensure continuity, one-third of the court is elected every three years. The mandate also stipulates that the panel include three members voted in from the African subcontinent, two from Latin America and the Caribbean, three from Asia, five from Western Europe and other states, and two from Eastern Europe.
According to the rules, a state party which does not have a judge of its nationality on the Bench may choose a person to sit as ad hoc judge. In the Kulbhushan Jadhav case, Tassaduq Hussain Jillani was elected as an ad hoc judge by Pakistan.
The judges on the panel receive an annual basic salary to the tune of $172,978. The president and the vice-president receive a supplementary allowance of $15,000. In order to protect the judges on the panel from outside influence, the charter dictates that judges cannot be dismissed unless the move is unanimously backed by all the members. This has never happened in the court’s history.
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Indian representation at the ICJ
In 2012, former Supreme Court judge Dalveer Bhandari was nominated as a judge of the ICJ. In 2017, when the panel was open to re-election, India renominated Justice Bhandari after which he edged out United Kingdom’s Sir Christopher Greenwood to take a place. Justice Bhandari — the fourth Indian to serve on the panel — will continue till 2027.
Sir B.N. Rau — a civil servant, was the first Indian on the panel in 1952-1953 (he died of a heart attack). Nagendra Singh and former Chief Justice of India R.S. Pathak succeeded Rau. Singh served as the vice-president on the panel from 1976-1979, and was nominated as the President of the ICJ in 1985 where he served till his death three years later.
India versus Pakistan
Before the Kulbhushan Jadhav case, India and Pakistan have faced each other in court thrice.
In 1971, India challenged the International Civil Aviation Organization (ICAO) jurisdiction for entertaining a complaint filed by Pakistan, while Pakistan filed a cross-appeal challenging the jurisdiction of the ICJ to hear the appeal.
A year later, the ICJ dismissed Pakistan’s objection while also upholding the ICAO’s jurisdiction.
In 1973, Pakistan accused India of committing genocide against 193 Pakistanis — prisoners of war and civilians in Indian custody. However, the matter was withdrawn when both countries opted for bilateral talks.
Pakistan last came to the court in 1999 over the destruction of a Pakistani aircraft by India. A year later, the ICJ ruled that it had no jurisdiction over the issue and requested the countries to settle the dispute peacefully between themselves.
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Since its inception, the ICJ has delivered several landmark verdicts on various issues that range from territorial disputes, to environmental matters and crimes against humanity. According to the official website, the first case was submitted — Corfu Channel matter (United Kingdom v. Albania) — on 22 May 1947. Since then, till 1 January 2019, 176 cases have been submitted in the General List.
Currently, there are 17 pending cases on the court’s roster.
The duration of the court proceedings largely depends on the complexity of the issue. Certain matters may be adjudicated within a year, while a few have gone on for more than a decade. It took the court 16 years to finally adjudicate on the Croatia v. Serbia case, in which both countries accused each other of genocide.
In July 1999, Croatia filed a case against the erstwhile Federal Republic of Yugoslavia. With the dissolution of the country in 2006, Serbia became the legal successor in the court battle against Croatia.
In February 2015, the ICJ dismissed both cases ruling that genocidal intent had not been established by the countries.
In another genocide case ‘Bosnia and Herzegovina versus Serbia and Montenegro’, in 2006, after hearing the matter for 14 years, the ICJ — in a majority decision — ruled the Srebrinka massacre of the Bosniaks was genocide.
However, it also observed that Serbia was not directly responsible for the Srebinka massacre. The ICJ found Serbia guilty of breaching the Genocide Convention — for failing to prevent it. It also found Serbia guilty for failing to cooperate with the International Criminal Tribunal and prosecuting General Ratko Mladić.
In another case, Nicaragua in 1984 knocked the doors of the ICJ against the United States’ military and paramilitary activities. After hearing the deliberations for seven years, the ICJ ruled in Nicaragua’s favour and ordered US to pay reparations.
It said the US had violated international law when it supported the Contras rebellion against the Nicaraguan government.
However, it is interesting that the US failed to participate in the proceedings. It also used its veto power in the Security Council to waive the execution of the verdict passed by the international court.
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