Kulbhushan Jadhav at ICJ Hearing: India Presents Final Arguments

India on Wednesday, 20 February, questioned the functioning of Pakistan's notorious military courts and urged the International Court of Justice (ICJ) to annul Kulbhushan Jadhav's death sentence, which is based on an "extracted confession".

During the first round of hearing, advocate Harsh Salve representing India had said the trial of its national Kulbhushan Jadhav by a Pakistani military court "hopelessly failed" to satisfy even the minimum standards of due process and requested the ICJ to declare it "unlawful".

Jadhav, 48, a retired Indian Navy officer, was sentenced to death by a Pakistani military court on charges of "espionage and terrorism" after a closed trial in April 2017.

India questioned the functioning of Pakistan's "notorious military courts" and urged the ICJ to annul Kulbhushan Jadhav's death sentence, which is based on an "extracted confession".

"Annul the decision of the military court and restrain Pakistan from giving effect to the (death) sentence. Release Jadhav and ensure safe release forthwith. If not then direct a trial under normal law with full consular access," said Deepak Mittal, Joint Secretary, the Ministry of External Affairs, making the final submission in the court on the third day of the hearing.

He requested the court to declare that Pakistan acted in breach of Article 36 of Vienna Convention and failed to inform Jadhav of his rights.

"Government of India requests this court to adjudge and declare that Pakistan acted in egregious breach of Article 36 of Vienna Convention," he said.

Harsh Salve representing India strongly objected to the abusive language used by Pakistan's counsel in the Kulbhushan Jadhav case at the International Court of Justice (ICJ), urging the UN court to draw a redline.

He drew the court's attention towards the abusive language used by Pakistan through its counsel Khawar Qureshi on the second day of the hearing.

"The language echoed in this court... perhaps this Court may lay down some redlines. The transcript is peppered with words such as shameless, nonesense, disgraceful... India takes exception to being addressed in this fashion in an international court,” Salve said.

Counsel Khawar Qureshi is now presenting Pakistan’s arguments at ICJ.

He claimed that no other country has approached the ICJ and said “Vienna Convention on Consular Relations applies to spies.”

"We will demonstrate that India's case is subterfuge, he added.

Qureshi then continued saying that India was required to assist with Pakistan's request for evidence, despite there being no Mutual Legal Assistance Treaty 'because of a UN Security Council Resolution obliging them to do so.'

Mansoor alleged that NSA Ajit Doval had made no secret of India's plan to encourage terrorism. He further termed it as "double squeeze" strategy.

Pakistan's attorney general Anwar Mansoor begins arguments and says that National Security Advisor Ajit Doval has made no secret of India's plan to encourage terrorism, has called it the "double squeeze" strategy.

He also links the terror attack on the Baluchistan high court to a speech by Ajit Doval on India's plans to teach them a lesson.

Pakistan began its first round of arguments on Day 2 and has raised concerns over the absence of the Ad hoc judge selected by Pakistan Mr Geelani.

The ICJ proceedings on Kulbhushan Jadhav adjourned till Tuesday, 19 February. Pakistan on Tuesday will submit their response to Harish Salve’s claims.

Subsequently, India will reply on 20 February, and Islamabad will make its closing submissions on 21 February.

During the hearing, Harish Salve argued that India has always offered consular access to Pakistan even when its citizens have been caught in acts of terrorism.

"It is another matter that Pakistan has never availed of the same," Salve added.

As ICJ reconvenes, Harish Salve began arguing that Jadhav’s trial by Pakistan military court hopelessly failed to satisfy even minimum standards of due process.

"Jadhav's trial by military court hopelessly fails to satisfy even minimum standards of due process and should be declared "unlawful," he said, "Failure to fulfill obligations of the Vienna Convention is prejudicial to the guarantees of due process of law."

He continued explaining the way in which the court needs to view the current case, emphasizing decisions of international courts like the Inter-American Court of Human Rights which say the right of consular access is a human right of high importance.

Harish Salve argued that Pakistan did not uphold the Article 36 of the Vienna Convention that states consular access applies all nationals, regardless of espionage claims in Jadhav’s case.

Salve said that ICJ has already upheld the importance of consular access under Article 36 in two previous cases – LaGrand (Germany vs USA) and Avena (Mexico vs USA).

"This quite plainly, is an egregious violation of Pakistan's obligations under Article 36 of the Vienna Convention," said Salve.

Salve argued that Pakistan had ignored 13 requests for "consular access" to Kulbhushan Jadhav.

"They at one point said they might consider it if India assisted their investigation into him being an Indian spy, asked for evidence of bank accounts, phone numbers, etc," he said.

“Pakistan has not provided any evidence,” he added.

Arguing for India, Harish Salve said that Pakistan had extracted the confession out of Jadhav and claimed that he was made to endure trauma for three years despite the country having no substantial evidence against him.

Senior lawyer Harish Salve, while representing India at the ICJ trial of Kulbhushan Jadhav, said that “if not at an international court, then where will we get justice?”

He also said that Pakistan’s treatment of Jadhav was an “egregious violation of the Vienna Convention.”

"Jadhav's continued custody without consular access should be declared unlawful," he added.

Deepak Mittal, joint secretary of the Ministry of External Affairs of India, while addressing the ICJ, accused Pakistan of violating the Vienna Convention by not giving consular access to Jadhav.

“I raise issued to the conduct of Pakistan through the course of this case,” Mittal said.

The ICJ hearing will be live streamed on its official website and the web television of the United Nations. The trial is scheduled to start at 2:30 pm IST.

Ahead of the ICJ hearing on Monday, 18 February, India has presented an over 100 note verbales seeking consular access to Kulbhushan Jadhav, CNN-News18 reported.

India will have three hours to present its arguments in today’s court, where it is seeking an annulment of Jadhav’s death sentence.

With the ties between Indian and Pakistan being strained further post the terror attack in Pulwama, that left 40 CRPF personnel dead, the ICJ hearing on Monday assumes added significance.

The Indian side is expected to push its point that Pakistan has been breaking international rules and human rights laws, citing the latest attack – for which it hold Islamabad responsible, Indian Express reported.

According to News18, India will get three hours to present their side of argument before the ICJ.

In a statement released on the eve of the ICJ hearing, Pakistan’s Foreign Office (FO) slammed India for not accepting that Jadhav was in Pakistan to “perpetrate violence”.

The FO statement also said that India blaming Pakistan for the Pulwama attack was part of its “well-rehearsed tactics from playbook, which they resort to after such incidents”, News18 reported.

“These are knee-jerk and pre-conceived accusations. India needs to introspect and respond to questions about its security and intelligence lapses,” a spokesperson said.

According to Dawn newspaper, Pakistan’s delegation at the ICJ would be led by Attorney General Anwar Mansoor whereas Director General South Asia Dr Mohammad Faisal will lead the Foreign Office side.

A senior Pakistani official, meanwhile, said that his country is fully committed to implement the decision of the ICJ.

“We are fully prepared with our strongest evidence being the valid Indian passport recovered from Commander Jadhav with a Muslim name,” the newspaper quoted an official, as saying.

(Source: ANI)

While maintaining that India remains committed to make all possible efforts to secure and protect the rights of Jadhav, the spokesperson of the Ministry of External Affairs Raveesh Kumar did not make public the stance New Delhi would take at The Hague.

"India will present its case before the court. Since the matter is sub-judice it is not appropriate for me to state our position in public. Whatever we have to do, we will do at the court," Kumar said last week in New Delhi in response to a question.

Pakistan facilitated a meeting of Jadhav with his mother and wife in Islamabad on 25 December 2017.

In the pictures issued by Pakistan after the meeting, Jadhav was seen sitting behind a glass screen while his mother and wife sat on the other side. They spoke through intercom.

Later, India accused Pakistan of disregarding cultural and religious sensibilities of Jadhav's family members under the pretext of security by removing the mangal sutra, bangles and bindi of his mother and wife before they could meet him.

India also asserted that Jadhav appeared coerced and under considerable stress during the tightly-controlled interaction at the Pakistan Foreign Office.

In its written pleadings, India accused Pakistan of violating the Vienna Convention by not giving consular access to Jadhav arguing that the convention did not say that such access would not be available to an individual arrested on espionage charges.

In response, Pakistan through its counter-memorial told the ICJ that the Vienna Convention on Consular Relations 1963 applied only to legitimate visitors and did not cover clandestine operations.

Pakistan had said that "since India did not deny that Jadhav was travelling on a passport with an assumed Muslim name, they have no case to plead." Pakistan said that India did not explain how "a serving naval commander" was travelling under an assumed name. It also stated that "since Jadhav was on active duty, it is obvious that he was a spy sent on a special mission".

In its submission to the ICJ, Pakistan had stated that Jadhav is not an ordinary person as he had entered the country with the intent of spying and carrying out sabotage activities.

Pakistan claims that its security forces arrested Jadhav from restive Balochistan province on 3 March 2016 after he reportedly entered from Iran.

However, India maintains that Jadhav was kidnapped from Iran where he had business interests after retiring from the navy. Jadhav's sentencing had evoked a sharp reaction in India.

Pakistan had rejected India's plea for consular access to Jadhav at the ICJ, claiming that New Delhi wants the access to get the information gathered by its "spy".