Jadhav case: India, Pak lock horns at International Court of Justice

The International Court of Justice, also known as the World Court, will decide whether to order Pakistan to temporarily halt the execution of former naval officer Kulbhushan Jadhav after what India described as a “farcical” military trial in Pakistan, following a day of intense of public hearings at the Peace Palace in the Hague.

During the hearings, India accused Pakistan of “egregious violations” of the Vienna Convention on Consular Access.

Pakistan dubbed Jadhav a “terrorist” and accused India of ambushing it by pushing for provisional measures (the stay on execution) from the court. The decision, in the form of an order, could come within days.

Opening the arguments for India — during a 90-minute session on Monday morning — Deepak Mittal, Joint Secretary (Pakistan-Afghanistan-Iran), MEA, was scathing about the “miscarriage of justice” and the “concocted charges” on which Jadhav had been arrested and sentenced, and described his trial in Pakistan as “farcical.”

He warned that without provisional measures requested by India, Pakistan would execute Jadhav before the court could consider the merits of India’s claim, doing “irreparable damage” to the rights of India and Jadhav.

India had made repeated requests for assistance on consular access, which had been denied and had been eventually told that access would only be given in light of India’s cooperation in the Pakistani investigation. Jadhav’s mother had submitted an appeal but without access to the details of the case and the charge sheet, this was an “act of desperation by a grieving parent.” The family’s application for a visa to travel to Pakistan had to date received no response.

Harish Salve, India’s Counsel, delivered the details of India’s case.

“The situation we find ourselves in is grave and it is urgent and is the reason we have sought the indulgence of this court for a hearing on the indication of provisional measures,” he said as he pointed to a string of past cases heard by the court to establish its jurisdiction in this area, and past precedents on the issue of provisional measures.

He accused Pakistan of “egregious violations of the Vienna convention,” right from the time of Jadhav’s arrest in March 2016. He described as “facetious” a May 12 communication from Pakistan that had outlined the legal avenues open to Jadhav. noting that it had failed to provide an assurance that the sentence would not be carried out.

Speaking after the hearing, Salve expressed his hope that “justice” in the form of provisional measures would be delivered following the hearings, and that India was “here in the hope” that it would lead to annulment of the death sentence.

“We will not be cowed…we will not allow any attempt to malign or misrepresent our processes to go unchecked,” said Moazzam Ahmad Khan, Pakistan’s Ambassador to the UAE, and Agent for Pakistan in the hearing.

Pakistan’s Counsel Khawar Qureshi QC rejected the extreme urgency of the case, and said that questions over the “false passport” on which Jadhav was arrested, allegedly in Balochistan, required further explanation. He also pointed to past hearings where India had sought to challenge the jurisdiction of the court.

The public hearings were held on India’s request for what are known as “provisional measures”, which were made on an urgent basis until the court had time to decide on the substance of the application, made on May 8.

The notice for the hearing was one of the shortest in the history of the court. The 5-member Indian delegation was led by Deepak Mittal, Joint Secretary (Pakistan-Afghanistan-Iran), MEA, with VD Sharma, Joint Secretary of the Ministry of External Affairs, as co-agent, and Harish Salve as Counsel.

The case was heard by 11 of the court’s 15 judges, including President Ronny Abraham, and Indian Judge Dalveer Bhandari. The judges are elected to nine-year terms by the Security Council and General Assembly and are required to put their national loyalties aside in the consideration of cases, being independent magistrates rather than representatives of their government.

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