The Hague – Zuid Holland – The Netherlands, 19 February 2019. Pakistan on Tuesday accused India of using the International Court of Justice (ICJ) for “political theatre” as it urged judges to dismiss India’s case seeking to save spy Kulbhushan Jadhav from execution.
The top United Nations court’s four-day public hearing in the case of the 48-year-old Indian national began on Monday, with India presenting its case first. Pakistan presented its arguments in the case today. The four-day trial will end with Pakistan’s closing arguments on Thursday.
The case centres on the fate of Jadhav, who was convicted of espionage by a Pakistani military court and sentenced to death in April 2017. India denies Jadhav is a spy and has asked the ICJ to order his release because he was denied access to consular help and not allowed to choose his own defence lawyer.
Attorney General of Pakistan Anwar Mansoor Khan on Tuesday argued that Jadhav was an Indian spy sent to Balochistan to destabilise the country. He said that “India’s claim for relief […] must be dismissed.”
Khan told the court that Jadhav ran a network “to carry out despicable terrorism and suicide bombing, targeted killing, kidnapping for ransom and targeted operations to create unrest and instability in the country”.
“His unlawful activities were directed at creating anarchy in Pakistan and particularly targeted the China-Pakistan Economic Corridor,” Khan told the 15-judge bench.
But Jadhav did not act on his own, Khan added. “Rather they were committed at the behest of the Indian state and the government.”
A confession by Jadhav obtained by Pakistani officials “speaks of India’s state policy of sponsoring terrorism in Pakistan,” he said.
Since partition, “India has persistently pursued the policy of trying to destroy Pakistan,” Khan said.
Another Pakistani lawyer Khawar Qureshi told the court: “India’s proceedings […] are purely for political theatre… and they should be dismissed.”
He termed India’s arguments, presented a day earlier, as an opportunity wasted, saying India failed to answer fundamental questions regarding subversive activities of its serving navy commander inside Pakistan.
Qureshi questioned India’s demand of provisional measures without conduct of any hearing since it invoked ICJ’s jurisdiction on 08 May 2016 and termed the Indian claim for acquittal, release and return of Jadhav as “outlandish”.
Calling India’s proposition as “absurd and nonsensical”, he said India was showing a lack of good faith and sponsoring terrorism in Pakistan through Jadhav.
Qureshi also referred to a few cases of Russia and China where states were free to modify their own practice in dealing with espionage as special case.
He said India and Pakistan entered into a clearly worded agreement on consular access (operative since 1982 and amended in 2008) which identified the basis to consider the option of consular access in cases of espionage.
He emphasized that India’s conduct in sending Commander Jadhav to engage in acts of espionage violated the Article 5(a) of Vienna Convention and said permitting consular access would be in blatant violation of the fundamental precepts of international law.
He requested the court to declare India’s petition inadmissible by reason of its conduct manifesting abuse of rights, illegality and misrepresentation.
Furthermore, Qureshi said that even if the court were to hold that Vienna Convention’s Article 36 was engaged and a right to consular access was denied, the appropriate remedy would be filing a review before Pakistan’s High Court, any time by Jadhav and his family.
India’s arguments in yesterday’s hearing
A 15-member panel of ICJ judges heard India’s Counsel Advocate Harish Salve at the Peace Palace (Vredespaleis), the seat of the Court, from 2 pm to 5 pm PST.
Salve began his case yesterday by identifying it as an “unfortunate” matter relating to the life of an “innocent Indian national”. He based his arguments on two broad issues in what he essentially saw as a “simple” case, breach of Vienna Convention on consular access (VCCR) and the process of resolution.
India’s lawyer was quick to label Pakistan strong on rhetoric and blurry on facts, and failing in its propaganda to malign his country. Pakistan was bound to grant consular access at the earliest, but in fact refused to reply to 14 requests made by the Indian government at different times, he said.
Salve said a First Information Report (FIR) was registered against Jadhav as late as April 8 and his confession obtained before the FIR was used as a propaganda machine by Pakistan.
India’s counsel quoted Pakistan’s then adviser on foreign affairs, Sartaj Aziz, several times including his statement regarding the transparency of the trial.
The fact that Jadhav was given a state officer for defence, allowed to question witnesses and all political parties of Pakistan being unanimous in granting the death penalty to a spy, according to Salve, highlighted the political odds against a fair trial.
Former Solicitor General Harish Salve was not only quick to reject all of Pakistan’s claims regarding Jadhav’s role in fomenting terrorism and engaging in espionage within Pakistan, but also to ask the ICJ not to allow Pakistan to indulge in the “passport issue”, as that stood “irrelevant and alien” to today’s proceedings.
Terming Article 36 a vital cog in the wheel of justice, Salve continued to make a case based on human rights, protection of aliens on foreign land and pleaded the court to uphold VCCR, as a powerful tool that ensures the facility of consular access to foreign nationals that have been put to trial in a foreign country.
Pakistan’s frequent reminder of the express agreement signed by the two countries on Consular Access dated, 21 May, 2008 was also rubbished by Salve. The agreement that allows each state to consider a request for consular access “on its merits” in a case involving national security, does not make any reference to the VCCR.
Salve argued that VCCR could be clarified or supplemented by bilateral treaties but by no means diluted, modified or undermined. Neither can any article of a bilateral agreement destroy Article 36 of VCCR, nor does Article 36 commit to any exceptions, charges of espionage included.
“If Article 36 grants rights of consular access in all cases including where allegations of such kind are levelled, then demanding those can’t be an abuse of those rights,” he added.
Stressing the importance of granting consular access before commencement of trial, he regretted that Jadhav was “kidnapped”, detained, interrogated, tried and convicted without being granted consular access. He maintained Pakistan’s approach was regrettable in that the severity of charges did not justify violating the procedural processes of law.
A significant last chunk of Salve’s argument was dedicated to Pakistan’s military courts as he demanded annulment of Jadhav’s conviction and his release.
Salve insisted Pakistan could not hide behind domestic law to violate international obligations. Review and reconsideration was an unworkable remedy in the present Pakistani system, one absent of any due processes, where the institutional bias against Jadhav was unmistakable, he said.
Real relief would be, he added, Pakistan being directed to acquit Kulbhushan Jadhav who Pakistan claims had travelled at least 17 times with his cover name as Hussein Mubarak Patel.
Following the proceedings, Director General for South Asia and Saarc Dr Mohammad Faisal, who attended the Monday hearing, said India’s lawyer had failed to answer any of the questions raised by Pakistan regarding the service or retirement of the Indian navy commander; the authenticity of the Indian passport that facilitated his travel 17 times with a cover name; his sabotage, espionage and terrorism activities that resulted in the killing of thousands of Pakistanis in Karachi and different areas of Balochistan where he was finally arrested.
https://www.dawn.com/news/1464788/indian-spy-kulbhushan-jadhav-sought-to-create-anarchy-in-pakistan-at-delhis-behest-icj-told
The Hindu – Takeaways from the Kulbhushan Jadhav case ruling
India’s more successful legal journey to the ICJ must now reshape New Delhi’s approach to potentially difficult situations
Arjun Subramaniam
New Delhi – India, 18 July 2019. Kulbhushan Jadhav, the former Indian Navy officer, who was allegedly abducted by Pakistani intelligence from Iran and sentenced to death on charges of espionage and terrorism by a farcical military court in Pakistan, has been given a glimmer of hope by the ruling of the International Court of Justice (ICJ).
Responding to a petition by India that sought an annulment of his death sentence because Pakistan had violated numerous international treaties and extracted irregular confessions under coercion, the ICJ, on July 17, 2019, ruled with a decisive vote (15-1) that Mr. Jadhav cannot be executed by Pakistan, and that he must be given adequate consular access and a fair trial.
The ruling also urged Pakistan to review his conviction. This constitutes a major diplomatic and legal victory for India, with Pakistan accusing India of ‘ambushing’ it at The Hague.
Focussed strategy
Given its rather lukewarm record in the past of securing the release of Indian detainees in Pakistan through bilateral negotiations, India’s strategy in this case has been to exploit increasing international acceptance that Pakistan was an emerging ‘rogue’ state.
Laying stress on Pakistan’s scant regard for Article 36 of the Vienna Convention on Consular Relations, it deals with the arrest, detention and trial of a foreign citizen, India’s counsel, Harish Salve, highlighted two compelling arguments. First was the arrest process, which was not accompanied by an immediate notification to Indian consular officials in Islamabad.
There was a delay of over three weeks before India was informed, and it was during this period, according to reliable sources from within Pakistan, that Mr Jadhav was subjected to all means of coercion and forced to sign a ‘confession taken under custody’ without adequate legal representation.
Second was the two-way denial of access and communication by any means between Mr. Jadhav and consular officials and a failure to inform him of the rights he enjoyed under the convention.
The legitimacy of military courts has always been controversial within the international legal system that emerged in the post-World War II era as a fast-track system of delivering skewed justice by authoritarian regimes and military dictatorships.
Purportedly set up in Pakistan in 2015 as a counter-terrorist and anti-corruption initiative, Mr Jadhav’s sentencing in April 2017 was based on confessions taken in captivity and is part of several arbitrary sentences by Pakistan’s Military Court.
Violation of rights
The International Covenant on Civil and Political Rights (ICCPR) recognises the right to an effective defence against criminal charges, and to a fair and impartial trial, in which the accused is represented by a lawyer of his choice.
By denying consular access, Pakistan has stood in gross violation of both the Vienna Convention and the ICCPR. Had due process been followed, and then had Mr. Jadhav been charged with espionage, India may not have had the necessary room to take the matter to the ICJ.
By attempting to circumvent the ‘due diligence’ process, Pakistan has exposed serious chinks in its legal environment and jeopardised its standing in the comity of nations. The Jadhav case has also revealed Pakistan’s desperation in its search for ‘proxies’ as drivers of the internal unrest in Balochistan.
Reliable sources within India’s intelligence agencies hint at the possibility of Mr Jadhav having been abducted by armed groups operating on the border between Iran and Balochistan.
Pakistan is known to have used proxy Sunni groups such as the Jaish al-Adl against Iran, and Iranian officials have often spoken to their Indian counterparts about Pakistan’s sponsorship of terrorist activities along the Iran-Pakistan border.
A testimony to the growing menace of this group is its recent designation as a front of Jundullah, which is a ‘Specially Designated Global Terrorist’.
India has shown both intent and resilience in attempting to secure the release of Mr. Jadhav despite the many hiccups along the way. Following a synergised approach steered by the National Security Adviser and the External Affairs Minister, India fought the kidnapping of Mr. Jadhav, an Indian national who was legitimately residing in Iran after retirement from the Indian Navy.
Realising, in 2017, following his death sentence that the overall deteriorating relations between India and Pakistan had closed the door on any bilateral way of securing his release, India rightly chose to go the ‘international way’ by fielding a formidable legal team led by the jurist, Harish Salve.
Sparing no efforts on the human aspects of the case too, India managed to get Mr Jadhav to meet his mother and wife after the death sentence was pronounced. The first success achieved by the Indian legal team was on May 9, 2017 when the ICJ sent an urgent message to the Prime Minister of Pakistan, urging him to stay the execution till India’s case was heard fully and the ICJ arrived at a verdict.
Moving slowly but surely through the legal battle for over two years, India, has been demonstrating significant synergy between various stakeholders in the case.
The final verdict will, hopefully, galvanise the Indian establishment to step on the pedal and exert pressure on Pakistan to rescind the death sentence and allow Mr Jadhav consular access and legitimate legal platform to mount his defence.
While it would be wishful thinking to assume that Mr Jadhav would return to India soon, there is a glimmer of hope on the horizon that the Indian strategic establishment would do well to exploit.
Having deftly navigated the legal and diplomatic channels and restrained the Pakistan military by securing manoeuvring space following the ICJ verdict, a leading power such as India must demonstrate its intent and capacity to extract desirable outcomes out of potentially difficult, or seemingly impossible situations. Kulbhushan Jadhav’s case is one such challenge.
Arjun Subramaniam is a strategic commentator and Visiting Professor at Ashoka University
This is an Indian reaction to the ruling of the International Court of Justice
I will look today for an article that reflects the Pakistani view
Man in Blue
https://www.thehindu.com/opinion/op-ed/takeaways-from-the-kulbhushan-jadhav-case-ruling/article28524139.ece?homepage=true
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on July 19, 2019 at 4:28 am Leave a CommentTags: Arjun Subramaniam is a strategic commentator and Visiting Professor at Ashoka University, Focussed strategy, International Court of Justice - Den Haag - The Netherlands, New Delhi - India, Takeaways from the Kulbhushan Jadhav case ruling, The Hindu, Violation of rights