by Athira Sankar P.K.*
On April 10, 2017, a military court in Pakistan tried Kulbhushan Jadhav, an Indian national, and sentenced him to death for “espionage and sabotage activities”. Pakistan’s refusal to grant consular access to Jadhav despite repeated requests, India’s decision to institute proceedings in the ICJ and the provisional measures subsequently awarded staying the execution, have been discussed at length in various forums. However, the focus on Pakistan’s violation of the Vienna Convention on Consular Relations, 1963 (admittedly, in light of the Optional Protocol signed by both countries granting jurisdiction to the ICJ, this may have the strongest factor in India’s favour) has resulted in another, more fundamental violation by Pakistan being rather under analysed. The right to fair trial, which has often been described as a “fundamental guarantee of human rights” was denied to Jadhav when Field General Court Martial sentenced him to death. This aspect of the illegality of the military trial finds mention in India’s application instituting proceedings only peripherally. It has requested the Court to order Pakistan to conduct the trial “under their ordinary judicial system”, without going beyond the Vienna Convention to substantiate this request. Raising this issue in more detail in its application could have strengthened India’s case to a greater extent, in light of how military trials are regarded as directly violative of the right to free trial.
The most fundamental norms that guarantee this right are Article 14 of the International Covenant on Civil and Political Rights (ICCPR), that calls for public hearings to be conducted by a “competent, independent and impartial” tribunal; and Article 10 of the Universal Declaration of Human Rights (UDHR), which provides for a public hearing “in full equality”. The UN Human Rights Committee has interpreted the ICCPR to be applicable to even military tribunals, and impose obligations even on such courts to provide the rights guaranteed in Article 14. In addition, states also must provide reasons for the use of military tribunals and explain why ordinary courts were not used. It has been recognised by the UN Human Rights Committee that military tribunals must limit their jurisdiction to military offences. This was through its endorsement of the Singhvi Declaration in 1989. Most importantly, in 2006, the UN Commission on Human Rights reviewed and affirmed the Decaux Principles,or the Draft Basic Principles Governing the Administration of Justice through Military Tribunals. They provide that every state has an obligation to ensure that civilians accused of a criminal offence of any nature are tried by civilian courts. Additionally, they also prohibit military courts from sentencing parties to death, and impose an obligation on them to uphold both the standards of international law and humanitarian rights.
In the aftermath of the Peshawar school bombings in 2015, Pakistan introduced the 21st amendment (now the 28th amendment) to its Constitution, along with amendments to its Army Act, that allowed military courts to extend jurisdiction over civilians accused of terrorism related offences. The amendment contained within itself a sunset clause that would terminate it on 6 January, 2017. However, by an overwhelming vote in the National Assembly, this amendment has now been extended for another two years, considering the “efficacy of the military tribunals in combating terrorism”. The Supreme Court of Pakistan has also upheld the constitutionality of this amendment as on August 2015.
An examination of the conduct of trials in Pakistan’s military courts by the International Commission of Jurists in January 2016 revealed that, “Military courts in Pakistan are not independent or impartial. Judges of military courts are military officers who are a part of the executive branch of the State and do not enjoy independence from the military hierarchy. They are not required to have judicial or legal training, or even a law degree, and do not enjoy any security of tenure, which are prerequisites of judicial competence and independence.” In addition, the secrecy with which such hearings are held, and the bar on civilian courts from exercising their appellate jurisdiction were also noted to be significant violations of the right to fair trial. Thus, the commission has called on the Pakistani authorities to repeal the 21st amendment and subsequent amendments to the Army Act- a plea which has gone largely unheard in the clamor that followed the Jadhav decision.
The 21st and 28th amendments are thus in violation of the principles espoused by the international covenants and declarations examined earlier, meaning that Jadhav’s trial was conducted in clear disregard of the norms of international law. Thus, the Jadhav Case provides the ICJ with an opportunity to examine the state of affairs in Pakistan and its military trials that have been conducted against civilians since 2015, and possibly hold the amendment and its extension as contrary to international law.
[*Athira Sankar P.K. is a fourth year student at National Law University, Jodhpur. Her areas of interest include Public International Law, International Trade Law and Intellectual Property Law. She can be contacted at firstname.lastname@example.org.]