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.
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.
On Nationality
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.
Opening the case on Monday Salve had accused Pakistan of “knowingly, wilfully and brazenly” flouting Article 36 of the Vienna Convention on Consular Access and attacked the “farcical” military trial of Jadhav who was found guilty and sentenced to death by a Pakistani military court in 2017. He called on the court to annul the verdict of the military court and to direct Jadhav’s relief because of the review and reconsideration process available to him “India submits that the military courts of Pakistan cannot command the confidence of this court and should not be sanctified by a direction to them to review and reconsider the case,” he said. He had insisted that Pakistan’s repeated reference to an authentic passport under a false Indian name was an irrelevance in the face of the two main issues. On the second day, Pakistan responded with a heated presentation by Qureshi who insisted that the issue of the passport remained highly relevant, as well as what he alleged was India’s failure to explain the circumstances under which Jadhav – who India maintains was retired and conducting legitimate business interests – was in Iran. Among other things he had received Rs. 90,605 “by way of pay. Not pension,” he insisted.