ICJ to resume Kulbhushan Jadhav case as Pakistan checkmated Indian stance
The four-day trial will end with Pakistan's closing arguments on Thursday.
THE HAGUE (Dunya News) – The International Court of Justice (ICJ) on Wednesday will resume hearing of a case brought by India against Pakistan to rescue 48-year-old Indian Navy commander Kulbhushan Jadhav who was sentenced to death by a Pakistan’s military court on the charges of espionage.
The United Nation’s top court has been conducting a four-day public hearing of the high-profile case of 48-year-old Indian Navy commander Kulbhushan Jadhav, who had been spying in Pakistan under the directives of Indian intelligence agency RAW.
The four-day trial will end with Pakistan’s closing arguments on Thursday.
Khawar Qureshi, the Queen’s Counsel at Serle Court Chambers and legal advisor to Pakistan, on Tuesday presented strong arguments against India for establishing Pakistan’s standpoint that New Delhi violated the Vienna Convention by sending a spy to Pakistan.
He further concluded that since India was unable to prove the citizenship of Kulbushan Jadhav, hence, the principles of the Vienna Convention did not apply on the convict.
He presented before the court Jadhav’s critical confessional statement in the case.
He literally checkmated India by asking what explanation the Indian government has for Jadhav’s Pakistani passport bearing a Muslim name “Hussain Mubarak Patel”.
“India have not so far clarified whether he is Hussain Mubarak Patel or Kulbhushan Jadhav,” he said.
He stated that India’s conduct in sending Indian Navy commander Jadhav to spy in Pakistan violated the Article 5(a) of the Vienna Convention and stressed that permitting consular access to the convict would be in blatant violation of the fundamental principles of the International Law.
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.
Attorney General of Pakistan Anwar Mansoor Khan said “Jadhav’s presence in Pakistan along with two passports is evidence that he was spying in the country. India has exhibited untrustworthiness during the Kulbhushan probe. His unlawful activities were directed at creating anarchy in Pakistan and particularly targeted the China-Pakistan Economic Corridor."
“Since partition, India has persistently pursued the policy of trying to destroy Pakistan," Khan said.
“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," he went on to say.
Jadhav’s confessional statement "speaks of India’s state policy of sponsoring terrorism in Pakistan," he added.
“India’s proceedings are purely for political theatre and they should be dismissed,” he said.
With these arguments, he asked India to respond to all these queries appropriately, and urged the 15-member bench of the court to dismiss India’s claim for relief.
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.
Contrarily, India is constantly denying that Jadhav is a spy and pleaded with the ICJ to order his release on the grounds that he was denied access to consular help and was not allowed his own defence lawyer.
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.
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.
