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Pakistan’s ‘review’ of Jadhav trial can’t constitute again a death sentence, says ICJ Judge

Judge Antônio Augusto Cançado Trindade, from Brazil, is one of the 16 judges of International Court of Justice that delivered the verdict on Kulbhushan Jadhav case earlier this week.

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New Delhi: The International Court of Justice (ICJ) Wednesday ruled that Pakistan must review and reconsider the death sentence given to Indian national Kulbhushan Jadhav by its military court.

The case was heard by 16 ICJ judges. The judges also granted, by an overwhelming 15-1 majority, the right for Jadhav to have consular access as well as the right to self-defence.

Read, below, excerpts from the opinion of Judge Antônio Augusto Cançado Trindade, from Brazil, on the “The Importance of Providing Redress” as well as an “Epilogue”, in which he clearly points out that even when Pakistan undertakes a “review and reconsideration” of Jadhav’s case, that review cannot constitute a death sentence:

In order to keep law and justice together, one cannot accept being restrained by legal positivism: one is to transcend its regrettable limitations. In the present Separate Opinion, I find it necessary to address likewise, at this stage, the issue of redress for the unlawful act established by the ICJ in the present case of Jadhav, ensuing from the breach of Article 36(1)(b) of the VCCR.

The necessary redress is meant to wipe out all consequences of the unlawful act, i.e., in the cas d’espèce, the condemnation of Mr. K.S. Jadhav to death by a military court.

Redress, in my own understanding, goes well beyond the simple “review and reconsideration”, as ordered by the ICJ, of the death sentence of the military court following a breach of consular law. The State’s duty of redress encompasses putting an end to the unlawful act as well as preventing any continuing effects ensuing therefrom. It is, in sum, a duty of restoration of the situation existing before the occurrence of the unlawful act.

In my perception, “review and reconsideration”, repeated by the ICJ in the present case of Jadhav, in the line of its previous decisions in the cases of LaGrand (2001) and of Avena (2004), are manifestly insufficient and inadequate, leaving the whole matter in the hands of the respondent States at issue. As I have pointed out from the start of the present Separate Opinion, resolutory points ns. (7) and (8) of the dispositif of the present ICJ Judgment are insufficient.

As the Court, once again in its case-law, has ordered “review and reconsideration”, it should moreover have taken care of overcoming their limitation in the present case of Jadhav, so as to make clear that a reiteration of death penalty is discarded. In my understanding, Pakistan’s effective “review and reconsideration” of the death sentence at issue against Mr. K.S. Jadhav cannot constitute again a death sentence. There are three compelling reasons for this.

First, as already clarified, there is evidence that there is an evolving customary international law of prohibition of the death penalty, as sustained by an opinio juris communis (cf. supra). There are nowadays, as already observed, international treaties on the abolition of the death penalty (para. 48, supra). There remain some States, however, that in practice seem to overlook this relevant development, in keeping on applying death penalty; yet, they cannot at all pretend to exclude themselves from the evolving customary international law in prohibition of the death penalty. This would amount to a breach of it, in the present case interrelated with the breach of Article 36(1)(b) of the VCCR.

Secondly, the ICJ, as “the principal judicial organ of the United Nations” (Article 92 of its Charter), is bound to uphold the progressive development of international law in prohibition of the death penalty. The United Nations itself has endorsed such development (cf. supra). Among the aforementioned international instruments, may I here single out that the Second Optional Protocol to the U.N. Covenant on Civil and Political Rights64, provides for the abolition of the death penalty, recognising that such abolition contributes to the protection of the right to life. The ICJ, as the principal judicial organ of the United Nations, is to render justice in line with the progressive development of international law as applicable in the cas d’espèce, determining the abolition of the death penalty.

Thirdly, one must also turn attention to the basic principle of good faith (bona fides). In effect, in the present case no records have been provided to the ICJ as to Mr. K.S. Jadhav’s trial by a military court; there is lack of evidence of due process of law and observance of his fundamental human right to life. Lack of due process and a fair trial ensue from the respondent State’s breach of its obligation to provide information on consular assistance (Article 36(1)(b) of the VCCR), established by the ICJ (paras. 140-141 and 143). The prosecution, conviction and sentencing of Mr. K.S. Jadhav in such circumstances disclose a lack of bona fides.

In the present Judgment in the case of Jadhav, the ICJ stated that “it is not clear whether judicial review of a decision of a military court is available on the ground that there has been a violation of the rights set forth” in Article 36(1) of the VCCR (para. 141). It further asserted that there is “no evidence before the Court” as to the outcome of Mr. K.S. Jadhav’s petitions or appeals of mercy (para. 140), and added that “[no] evidence has been submitted to the Court regarding the presidential clemency procedure” (para. 143).

The ICJ, though overtaken by such uncertainties, nonetheless points to “remedies” essentially at domestic law level (paras. 134-139, 142 and 144-148), limiting itself to “review and reconsideration” of the death penalty. In view of the lack of evidence before it, I find its position on this particular point unsatisfactory, if not untenable. My own position is that the facts of the present case of Jadhav, as presented to the Court, bar the execution of the death penalty against Mr. K.S. Jadhav, and call for redress for the violation of Article 36(1) of the VCCR.

From all the preceding considerations, it is crystal clear that my own reasoning goes well beyond that of the ICJ in the present Judgment on the case of Jadhav, in respect of the points examined in the present Separate Opinion. This being so, I deem it fit, last but not least, to recapitulate with clarity all the interrelated points that I have examined herein, in my present Separate Opinion. My position, as seen, is grounded above all on issues of principle, to which I attach much importance, in the search for the realization of justice.

Primus: Along the last two decades a reassuring jurisprudential construction has emerged and developed, as from the pioneering Advisory Opinion n. 16 (1999) of the IACtHR, on the right to information on consular assistance (Article 36 of the VCCR) as directly related to the International Law of Human Rights. Secundus: This right under Article 36(1)(b) of the VCCR is related in particular to the right to life and the guarantees of due process of law (Articles 6 and 14 of the CCPR).

Tertius: In sequence, the Advisory Opinion n. 18 (2003) of the IACtHR constructed on the basis of the evolving concepts of jus cogens (encompassing the fundamental principle of equality and non-discrimination) and obligations erga omnes of protection. Quartus: Subsequent to the Advisory Opinion n. 16 (1999) of the IACtHR, the ICJ, for its part, adjudicated the cases of LaGrand (2001), Avena (2004), and now Jadhav (2019); in the contentious proceedings of these three cases, the applicant States brought to the attention of the ICJ the historical importance of the construction of the pioneering Advisory Opinion n. 16 (1999) of the IACtHR, — not taken into account by the ICJ in its three aforementioned Judgments.

Quintus: Yet, in its Judgments in the three cases of LaGrand, Avena and Jadhav, the ICJ acknowledged the “individual rights” under Article 36 of the VCCR, but it avoided to consider their character as of human rights. Sextus: In effect, the individual rights under Article 36 of the VCCR are directly related to the right to life and to the human rights to due process of law and a fair trial (as under the CCPR, Articles 6 and 14).

Septimus: There was no reason for the ICJ to have adopted its insufficient approach to the matter in its Judgments in the cases of LaGrand, Avena and Jadhav. Octavus: Beyond what the ICJ has held, there is an ineluctable interrelationship between the right to information on consular assistance and the human rights to due process of law and fair trial, with an incidence on the fundamental right to life.

Nonus: There is need to proceed in this constructive hermeneutics, so as to keep on fostering the current historical process of humanization of consular law, and, ultimately, of international law itself. Decimus: There is a corpus juris gentium (international treaties and instruments, and general international law) on the wrongfulness in death penalty as a breach of human rights. Undecimus: There is likewise the case-law of the IACtHR to this effect.

Duodecimus: There has been a consistent and strong condemnation of death penalty at world level, expressed in initiatives and endeavours in the United Nations. Tertius decimus: In face of death penalty and the large extent of the human harm done to human rights, the ICJ has pursued (as from its own jurisdiction) a very restrictive reasoning. Quartus decimus: It is to be kept in mind that law and justice come together, this being essential when human rights are affected.

Quintus decimus: For a long time humanist thinking has emerged against State arbitrariness in the execution of death penalty. Sextus decimus: There is, in effect, a longstanding humanist thinking on the part of lucid jurists, philosophers and writers, condemning the wrongfulness in death penalty, and converging in making it clear that law and justice come together, and cannot be separated one from the other; their interrelationship is ineluctable.

Septimus decimus: Even when death penalty is executed in conformity with positive law, despite its arbitrariness, this in no way justifies it; after all, legal positivism has always been a subservient servant of established power (irrespective of the orientation of this latter), paving the way for decisions that do not realize justice. Duodevicesimus: No such distortions can be acquiesced with, as positive law cannot prescind from justice.

Undevicesimus: Accordingly, it is necessary to address the issue of redress for the unlawful act established by the ICJ in the present case of Jadhav, ensuing from the breach of Article 36(1)(b) of the VCCR. Vicesimus: The necessary redress is meant to wipe out all consequences of the unlawful act (the condemnation of Mr. K.S. Jadhav to death by a military court). Vicesimus primus: Redress in the cas d’espèce goes well beyond the simple “review and reconsideration”, as ordered by the ICJ, of the death sentence of the military court following a breach of consular law.

Vicesimus secundus: The State’s duty of redress amounts to restoration of the situation existing before the occurrence of the unlawful act, encompassing putting an end to it and preventing any continuing effects ensuing therefrom. Vicesimus tertius: “Review and reconsideration”, once again repeated by the ICJ in the present case of Jadhav (like earlier in the cases of LaGrand and of Avena), are manifestly insufficient and inadequate, leaving the whole matter in the hands of the respondent State.

Vicesimus quartus: Resolutory points ns. (7) and (8) of the dispositif of the present ICJ Judgment are insufficient. Vicesimus quintus: Pakistan’s effective “review and reconsideration” of the death sentence against Mr. K.S. Jadhav cannot constitute again a death sentence. Vicesimus sextus: There is nowadays an evolving opinio juris communis on the prohibition and the abolition of the death penalty. Vicesimus septimus: The ICJ, as the principal judicial organ of the United Nations, is to render justice in line with the progressive development of international law on the prohibition and the abolition of the death penalty.

Vicesimus octavus: The prosecution, conviction and sentencing to death penalty of Mr. K.S. Jadhav, in the circumstances of the cas d’espèce, disclose a lack of bona fides. Vicesimus nonus: In the present Judgment in the case of Jadhav, the ICJ has acknowledged the lack of evidence as to the availability of judicial review of a decision of a military court, and the outcome of Mr. K.S. Jadahv’s petitions or appeals of mercy or clemency.

Trigesimus: Given such uncertainties, “remedies” essentially at domestic law level, as contemplated by the ICJ in limiting itself to “review and reconsideration” of the death penalty, disclose an unsatisfactory, if not untenable, position. Trigesimus primus: The facts of the present case of Jadhav, as presented to the ICJ, bar the execution of the death penalty against Mr. K.S. Jadhav, and call for redress for the violation established of Article 36(1) of the VCCR.

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