Pakistan's strong arguments against Kulbhushan Jadhav disintegrates Indian standpoint in ICJ
Jadhav was sentenced to death by a Pakistani military court after he was convicted of espionage.
THE HAGUE (Dunya News) – The International Court of Justice (ICJ) on Tuesday has resumed hearing of a case brought by India against Pakistan to rescue Kulbhushan Jadhav who was sentenced to death by a Pakistan’s military court on the charges of espionage.
Pakistan’s delegation is being led by Attorney General for Pakistan Anwar Mansoor Khan while comprising other officials including Foreign Office Spokesperson Dr Mohammad Faisal, Director Foreign Affairs Fareha Bugti, Pakistan’s Ambassador to the Netherlands Shujjat Ali Rathore.
Whereas, India’s delegation includes officials from Ministry of External Affairs Deepak Mittal, VD Sharma, S Senthil Kumar and Sandeep Kumar, and India’s Ambassador to the Netherlands Venu Rajamony.
As the ICJ resumes public hearing of the case at The Hague, Pakistan submitted a request to appoint a replacement for Pakistan’s adhoc judge former chief justice Tassaduq Hussain Jillani.
“We have been told that Jillani is unwell. We wish him a speedy recovery,” said Pakistan’s Attorney General Anwar Mansoor Khan.
While expressing certain reservations over Jillani’s absence from the bench, he stressed that a state had the right to appoint an adhoc judge.
“Pakistan is ready to present its case,” he added.
Meanwhile, the ICJ began hearing in the absence of Pakistan’s adhoc judge and directed the delegation to continue arguments.
The bench reserved verdict on Pakistan’s request. The president remarked that the court will respond to Pakistan’s queries in due time.
The arguments
Anwar Mansoor Khan told ICJ judges 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 corridor," Khan told a 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 independence from Britain in 1947 "India has persistently pursued the policy of trying to destroy Pakistan," Khan said.
He maintained that India backed terrorist activities and sent spies in Pakistan. “Pakistan is fighting the war against terrorism despite being a victim of terrorism.”
“Many lives have been lost due to India’s interference and malicious acts. Jadhav worked for RAW – he was sent to incite militancy in Gwadar, Karachi. He confessed before a magistrate that he was involved in terrorist activities in Pakistan. India is funding terrorist-elements against Pakistan.”
To support his arguments, the attorney general recalled militant attacks in Karachi and said “New Delhi is using Afghan soil to propagate violence across the border”.
He further maintained that Kulbhushan Jadhav has confessed that the Indian intelligence agency RAW had entered into Pakistan with a pre-determined cause of spreading terrorism in Baluchistan.
Pakistan’s lawyer Khawar Qureshi stated that India has been unable to reply to critical queries of Pakistan. “India have not so far clarified whether he is Hussain Mubarak Patel or Kulbhushan Jadhav,” he added.
“I have also represented India in the past, and India have refused to respond to the queries of Pakistan,” he said. He said that how could India demand consular access to Yadhav if its standpoint over his citizenship is not clear.
“Did India investigate into the matter after Yadhav was arrested?” he went on to say.
“What evidence does India have that he was kidnapped by Pakistan from Iran?” he questioned, asking for evidence on nine hours of travelling from Iran to Pakistan.
Qureshi referred to reports of three Indian journalists regarding Yadhav, and said that he had a passport with Muslim identity while India could not clarify its standpoint on the matter.
The court has also been presented with a report from Britain regarding his passport. "India’s proceedings... are purely for political theatre... and they should be dismissed," Qureshi told court.
Here are six of the key points which India 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.
India argues that it was entitled to obtain consular access to Commander Jadhav as soon as his detention was made public by Pakistan on 25 March 2016.
India argues that the trial and conviction of Commander Jadhav for espionage and terrorism offences by a Military Court on 10 April 2017 was "a farce".
India contends that the denial of consular access requires the ICJ to "at least" order the acquittal, release and return to India of Commander Jadhav.
Pakistan rejects all of India’s assertions. Pakistan points to evidence obtained from Commander Jadhav after his arrest, and during the criminal process leading to his conviction as amply demonstrating his activities in fomenting terrorism and engaging in espionage within Pakistan.
Pakistan maintains that it would be incompatible with international law for someone sent as a spy/terrorist by a State to be afforded access to officials of that State, as India asserts.
Pakistan also points to an express Agreement on Consular Access dated 21 May 2008 between India and Pakistan, which allows each State to consider a request for consular access "on its merits" in a case involving national security.
Furthermore, Pakistan points to the uncontradicted evidence that Commander Jadhav was provided with an authentic Indian passport in a ‘cover’ Muslim name by the Indian authorities, as a clear and obvious link between his conduct and the Government of India.
Such conduct being a blatant violation of international law should bar any claim for relief from a court. India refuses to reply on this issue and (unconvincingly) describes it as "mischievous propaganda".
In addition, Pakistan points to the fact that, in all of the ICJ’s previous decisions concerning Article 36 of the Vienna Convention on Consular Relations 1963 (which involved death sentences imposed by the USA), the Court made it clear that it was not a court of criminal appeal and the presence of "effective" "review and reconsideration" by domestic courts was an appropriate remedy, even if a breach of the right to consular access had been established.
