The judicial review process available to Kulbhushan Jadhav in Pakistan was “hopelessly insufficient,” while Pakistan was basing its case entirely on claims around a passport and an “extracted confession,” India’s counsel Harish Salve told the court as he kicked off the second round of oral arguments in the hearings at the International Court of Justice on Wednesday, with a sharp attack on the tone and content of Pakistan’s presentation on Tuesday.

Concluding the session, Joint Secretary Deepak Mittal called on the court to adjudicate on an “egregious” breach of the Vienna Convention on Consular Relations, and to order that Jadhav be given consular access. And if the court was not able to annul the verdict of the military court and order the release of Jadhav, he called on it to annul the military court verdict and order a civilian trial through the ordinary courts, after excluding the extracted confession from evidence and providing him with consular access.

India insists that contrary to Pakistan’s contention, the Vienna convention is not subject to exceptions on any grounds – including national security and espionage.

Speaking outside the court, Pakistan’s counsel Khawar Qureshi accused India of failing to answer any questions and of engaging in “deflection, diversion and propaganda.”

At the end of Wednesday’s proceedings ICJ President Abdulqawi Ahmed Yusuf had clarified that Chief Justice Tassaduq Hussain Jillani — Pakistan’s ad-hoc judge for the case — did not need to be replaced at this stage, despite being taken ill and not attending the first three days, as he had already been participating in the case ahead of the hearings, and would still be able to continue to participate by watching recordings or reading transcripts of the case.However, he left open the possibility of a replacement at a later stage should Jillani still be unable to attend.

‘Neither facts nor law’

Salve accused Pakistan of failing to accord the proceedings with the “dignity” and “solemnity,” they were due, and criticised the strong language that had been used. “India takes exception to being addressed in this fashion in this court,” he said, pointing to some of the phrases that had been deployed including the use of words such as “arrogance,” “ridiculous,” “disgraceful.” “Humpty dumpty has no place in this court, he said, pointing to a reference made by Qureshi to the nursery rhyme, accusing India of building a “flimsy wall of lies.”

“As an old saying goes “when you have the facts, you hammer the facts, when you have the law you hammer the law, when you have neither the facts nor the law you hammer the table,” Salve told the court.

He attacked the failure of Pakistan – despite India’s repeated requests – to share details of the military court process that convicted and sentenced Jadhav to death. “For good reason Pakistan is shy of sharing these details.” All Pakistan had was the passport, and the “extracted confession,” he told the court, also pointing to inconsistencies between the narrative put forward by Pakistan and some of the media reports that Pakistan itself had cited in its submissions on Tuesday.

He also questioned aspects of Pakistan’s presentation including its contention that India had never confirmed Jadhav’s Indian nationality. “Unlike Pakistan India has never needed to deny,” the nationality of one of their own citizens, Salve told the court. “Pakistan had no doubt that he was an Indian national.”

He also criticised the reference to a Rs 90,605 payment that Pakistan said had been paid by way of pay rather than pension to Jadhav’s account. “Our team has in the time available searched the entire material [submitted by Pakistan] and not found it,’ he noted. He also criticised several last-minute applications that had been made to the court by the Pakistani legal team at the end of proceedings on Monday, including a request to be able to show a video of an alleged further confession, that was subsequently referred to by Qureshi during proceedings. Why had an application to share this only been made at the last minute, when it had allegedly been made in November last year, he asked the court.

‘Wonderland’

In his concluding remarks, Pakistan’s Counsel Khawar Qureshi concluded the Kulbhushan Jadhav called for India’s claim for relief to be dismissed or declared inadmissible. He began with a personal attack on India and a number of senior figures, including National Security Advisor Ajit Doval, and India’s Counsel Harish Salve, accusing India of inhabiting “Wonderland” and engaging in “desperation and total disregard for the truth.”

“India demands words mean what it says they mean,” he said, criticising what he described was “deliberate,” additions or omissions made by India in a number of the legal references used in the case. This included a segment of the 2008 bilateral treaty on consular relations, which Pakistan has argued overrides any obligations for consular access that might have been owed under the 1963 Vienna Convention on Consular Relations. He also criticised India’s representation of the state practice that preceded the Vienna Convention, insisting that espionage exceptions had been made at that time. He also accused India of misrepresenting Pakistan’s military court system.

“India’s position is that of Wonderland. Indeed it is of a rotund character with a fragile cranium. Pakistan is not the one who brought him into this court,” he said, in an apparent reference to Salve’s comments slamming the language and tone of Qureshi’s opening arguments, and his reference to “Humpty Dumpty”.

He also accused India of misrepresenting the introduction of a photograph in one of his presentations – that of Doval – who he described as India’s “self styled super spy.” “If he ever visits London there is a vacancy for an actor to play James Bond.”

India’s changing stance

He accused India of changing its stance on Jadhav’s passport — from initially insisting that it was irrelevant and instead moving to a position saying that all Pakistan had was the passport and the “extracted confession.”

Judgements by the ICJ are made on average within 6 months of the hearings concluding though this can vary from a shorter period to a couple of years. The decision of the court is binding, and non-appealable, though it is possible to make a request for interpretation if there is a dispute between the two sides as to what the judgement means or what its scope is.

There is also a possibility to request a review of the judgement if a “ matter comes to light” that the court was previously unaware of and which could be a “decisive factor.” While requests for interpretation have on occasion been accepted, no requests for review have been successful to date.

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