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Kulbhushan Jadhav case: On Day 1, India flays Pakistan for flouting Vienna Convention

Vidya Ram | Updated on February 18, 2019

Indian Lawyer Harish Salve, Dr. V. D. Sharma and Deepak Mittal, Joint Secretaries, Indian Ministry of External Affairs at the International Court of Justice during the final hearing of the Kulbhushan Jadhav case in The Hague, Netherlands.   -  REUTERS

India urges ICJ to annul Pakistan military court verdict

The first day of oral arguments in the Kulbhushan Jadhav case at the International Court of Justice in The Hague concluded with India accusing Pakistan of “knowingly, wilfully and brazenly” flouting the Vienna Convention on Consular Relations.

India also attacked the “farcical” military trial of Jadhav, who was found guilty and sentenced to death by a Pakistani military court in 2017.

It requested the court to annul the verdict of the military court, and direct Pakistan to set Jadhav free on the basis of the “review and reconsideration” process that would be available to him in that country.

The hearing took place without former Pakistani Chief Justice Tassaduq Hussain Jillani, who was taken ill before the proceedings commenced and before he could be sworn in as an ad hoc ICJ judge. He is expected to take part in proceedings on Tuesday. Speaking outside the court following the proceedings, Harish Salve, India’s Counsel on the case, expressed his optimism that “justice will be done,” at the ICJ. However, Pakistan’s lead counsel Khawar Qureshi QC said he had been “disappointed” by India’s arguments, insisting there was “nothing new,” in them, and that “fundamental questions” remained unanswered.

Domestic propaganda

The case stripped of “irrelevances’ put forward by Pakistan boiled down to these two main issues around the military court proceedings and consular access, Salve told the Monday morning hearing.

He said that the 2017 provisional measures introduced by the ICJ that required Pakistan to not execute Jadhav until the full proceedings could take place had saved “the imminent threat of life to an innocent Indian national” and had given “hope” to the whole country.

He rejected Pakistan’s contentions that the circumstances of the case — and the fact that Jadhav is accused of espionage and the case relates to national security — made those consular access requirements redundant, and repeatedly accused Pakistan of using the case of Jadhav for domestic propaganda purposes. India also maintains that it is the 1963 Convention on consular relations rather than the 2008 bilateral agreement on consular relations that applies to the case, putting the case firmly in the jurisdiction of the court.

The lack of consular access had been the prime focus of the 2017 hearing at which India had successfully sought provisional measures from the court requiring Pakistan to stay the execution of Jadhav pending the main hearings.

On Monday, Salve also focussed on the military court system in Pakistan, attacking the increased use of such courts to try civilians, in “opaque and secret” proceedings. 274 civilians — including “possibly children” had been convicted in Pakistan’s military courts over the past couple of years, he said, contrasting it with India which had “never considered amending,” the Army Act to cover civilians. In a detailed account of the events that had unfolded since March 3 2016, when Pakistan said it had arrested Jadhav in Balochistan, Salve noted not only the repeated lack of consular access, despite repeated requests from India but also the lack of information provided to it on the specifics of the trial process and charges against Jadhav.

Instead, he accused Pakistan of engaging in repeated propaganda, and of using the case to build a narrative against India. “We have not seen the evidence against Jadhav, we have seen the doctored confession “over and over again,” he said.

Unexpected development

The high rate of “confessions” from those civilians who had been found guilty by military courts raised questions about the adequacy of safeguards within the military courts, including raising the possibility of torture being used to extract confessions, and the “high risk of mistreatment,” he said.

Rather than pushing for the court to order a review of the case in Pakistan, Salve argued that the evidence suggested that the review and relief mechanisms available to Jadhav and India were “highly inadequate.” Pakistan’s “military courts cannot command the confidence of this court and should not be sanctified,” he told the court, during the opening session that took nearly the entire three hours allocated to the proceedings.

The proceedings commenced with an unexpected development, as the former Chief Justice of Pakistan Tassaduq Hussain Jillani was taken ill ahead of the proceedings and left the court’s grounds by ambulance. He was therefore not sworn in as an ad hoc judge in the case as had been planned. It meant that the proceedings took place before the 15 ICJ judges, including former Indian Supreme Court Judge Dalveer Bhandari.

However, at the start of the proceedings the President of the Court, Somalian judge Abdulqawi Ahmed Yusuf left open the possibility of him taking part in subsequent proceedings, telling the court at the start of the hearing simply that he “will not be sitting today.”

On Tuesday, Pakistan will respond with its opening oral arguments, also set over a three-hour time period. This will be followed by two one and a half hour sessions on Wednesday and Thursday, where India and Pakistan will present their concluding arguments.

There is no set time period for a judgement to be made, though typically such cases take around six months to be considered. Judgements are based on a simple majority decision, and in the case of a tie, the President has the casting vote. The decisions of the court are binding, final and non-appealable, though in exceptional circumstances certain recourses are available to parties, including requests for interpretation of the judgement.

The ICJ is the main judicial arm of the UN, established in 1945 to deal with “contentious” cases submitted to it by member states and to give advisory opinions on legal questions referred to it, but is not a criminal court.

The case is only the fourth one involving a death sentence to be heard by the ICJ since the first in 1999, and the first that does not involve the US. (Those involved Germany, Mexico and Paraguay.

While the Pulwama terrorist attack on February 14 was not specifically mentioned by India during the proceedings, Salve attacked Pakistan’s “feeble” attempts at tackling cross border terrorism.. Ahead of the proceedings, Pakistan attacked India’s response to the terrorist attack and accusations of Pakistani involvement, alleging a “clear dichotomy” in India’s position by denying “when confronted with voluntary confessions and acceptance of responsibility by its serving Naval commander Jadav for perpetrating terrorist violence in Pakistan.”

Published on February 18, 2019

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