India concludes arguments in Jadhav case before International Court of Justice

Deepak Mittal, the joint secretary of India's Foreign Ministry, presents oral arguments.

THE HAGUE, Netherlands (Dunya News / AP) — India on Monday accused Pakistan of breaching the rights of an alleged spy who was sentenced to death by a Pakistani military court, a case at the U.N.’s highest court that has exacerbated tensions between the longtime rivals.

Indian lawyer Harish Salve told judges at the International Court of Justice that Pakistan’s claims of espionage and sabotage against Kulbhushan Jadhav have “always been strong on rhetoric and blurry on facts.”

Jadhav was arrested by Pakistan in March 2016 after he entered the country from Iran. He is linked to 1,345 deaths in acts of terrorism in Pakistan, making secret trips to the country from Iran.

He was convicted in Pakistan by a military tribunal and sentenced to death in April 2017. The U.N. court last year ordered Pakistan not to execute him pending the outcome of the case in The Hague.

Pakistan’s attorney general Anwar Mansoor Khan, right, greets Deepak Mittal, the joint secretary of India’s Foreign Ministry, as he present oral arguments at the International Court of Justice in The Hague. --- AP

Monday’s hearings played out against a backdrop of already high tensions between the neighbors over a deadly attack last week when a militant in India Occupied Kashmir region rammed an explosive-laden van into a paramilitary bus, killing at least 40 soldiers. It was the worst attack against Indian government forces in Occupied Kashmir’s history.

As hearings opened Monday in the Great Hall of Justice in The Hague, Salve said that Jadhav’s court martial “hopelessly fails to satisfy even minimum standards of due process and ... should be declared unlawful.”

He urged judges to declare Jadhav’s continued custody unlawful and “considering the trauma to which he has been subjected for over three years, it would be in the interests of justice, of making human rights a reality, to direct his release.”

India says Pakistani authorities ignored repeated requests to grant Jadhav access to consular officials and let him choose his own lawyer for the trial.

Pakistan lawyers are to set out their case on Tuesday.

After Monday’s hearing, a member of the Pakistan delegation told reporters outside the court said India had not answered key questions about the case in its presentation to judges.

“You will hear what we have to say about this tomorrow,” said lawyer Khawar Qureshi. “Today, we are disappointed with India’s position. They’ve said nothing new.”

The court’s judges will likely take months to issue a ruling and their decisions are final and legally binding. 

STANCE OF PAKISTAN

Earlier, Pakistan through its counter-memorial told the ICJ that the Vienna Convention on Consular Relations 1963 applied only to legitimate visitors and did not cover clandestine operations.

Pakistan had said that "since India did not deny that Jadhav was travelling on a passport with an assumed Muslim name, they have no case to plead."

Pakistan’s attorney general Anwar Mansoor Khan, left, Mohammad Faisal, director general at Pakistan’s Foreign Ministry, second left, and lawyer Khawar Qureshi, third from left, wait for judges to enter and India to present its oral arguments at the International Court of Justice in The Hague. --- AP

Pakistan said that India did not explain how "a serving naval commander" was travelling under an assumed name. It also stated that "since Jadhav was on active duty, it is obvious that he was a spy sent on a special mission".

In its submission to the ICJ, Pakistan had stated that Jadhav is not an ordinary person as he had entered the country with the intent of spying and carrying out sabotage activities.

SIX OF THE KEY POINTS WHICH INDIA WILL NEED TO ANSWER

1. India says Commander Jadhav was an innocent Indian national who was kidnapped from Iran to make him confess to being an Indian RAW agent. India has failed to make good this allegation despite repeated requests for evidence that he was kidnapped - Why not? 

2. India says Commander Jadhav retired from the Indian Navy - India has failed to explain when/why he retired (he was only 47 years old when arrested). Why not?

3. India refuses to explain how Commander Jadhav was in possession of an authentic Indian passport issued in a false ‘cover’ Muslim name ‘Hussein Mubarak Patel’ which he had used at least 17 times to enter/exit India. India has been asked this question many times (even by highly respected Indian senior journalists such as Praveen Swami and Karan Thapar) but simply says this is "irrelevant" or "mischievous propaganda". India eventually said the passport was "clearly a forgery" but refuses to explain this statement, or why a highly credible independent UK expert is wrong when he says it is an authentic Indian passport issued by the Indian authorities. Why not?

4. India demands that the ICJ orders the "return" of Commander Jadhav to India. However, the ICJ has repeatedly stated it is not a criminal court of appeal. It has always so far made it clear in all its decisions that, even if consular access was denied, the proper order is for there to be effective review and reconsideration by the local Courts. Commander Jadhav and his family have been able to seek this at any time since 10 April 2017 in accordance with Article 199 of the Constitution of Pakistan. Instead, India launched proceedings in the ICJ 14 months after he was arrested and a month after he was convicted to seek a ‘stay’ order without a hearing. Why is India asking for an order for "return" in the face of the ICJ’s decision and the independent expert evidence confirming Pakistan has effective review and reconsideration before the High Court and Supreme Court?

5. India has failed to explain why the Agreement on Consular Access between India and Pakistan dated 21 May 2008 (which India drafted), and which provides (at Article (vi)) for either State to be entitled to consider a request for consular access "on its merits" where it involves a person implicated in national security matters, does not apply in this case. Why not?

6. India fails to explain why highly respected UK based Military Law experts are wrong when they say that Pakistan’s High Court and Supreme Court provide an effective review and reconsideration of the Military Court process.