The International Court of Justice (ICJ) in The Hague on Monday began a four-day public hearing of the case of Kulbhushan Jadhav, who has been sentenced to death by a Pakistani military court on charges of espionage and terrorism in April 2017.
India moved the ICJ in May in 2017 against the “farcical trial” by the military court against 48-year-old Jadhav, a retired Indian Navy officer.
The first day of oral arguments concluded with India accusing Pakistan of “knowingly, wilfully and brazenly” flouting the Vienna Convention on Consular Relations.
Pakistan, on day two of the hearing, asked that India’s application to have the ICJ order Kulbhushan Jadhav’s release be dismissed as inadmissible.
Pakistan’s counsel Khawar Qureshi argued on Tuesday in a heated, and often personal presentation that repeatedly referenced Prime Minister Narendra Modi and accused India of engaging in “political theatre,” “grandstanding,” and presenting its case in “bad faith.”
On the third day, India said that the judicial review process available to Kulbhushan Jadhav in Pakistan was “hopelessly insufficient,” while Islamabad was basing its case entirely on claims around a passport and an “extracted confession.”
Mr. Khan says that the process of judicial review in Pakistan is robust. India seeks relief, which they cannot claim in this court, hey says. It is the convict’s choice to seek review and reconsideration, adds Mr. Khan.
With Mr. Khan’s arguments, the hearing comes to an end. The court retires for deliberation, as oral arguments have come to a close.
He hits out at India for the counsel's remarks about lack of "trained independent judge" in Peshawar High Court. Just because an appeal has been filed against a court's decision, it doesn't mean the country doesn't possess an effective review, he says.
Kulbhushan Jadhav was tried under the espionage law in the military court, says Mr. Qureshi. India’s claim for relief remains as “far-fetched now as it was then,” he says. He concludes that India’s claim for relief must be dismissed or declared inadmissible.
Anwar Masoor Khan, for Pakistan, says that some trials cannot be made public for reasons of national security. But, he says that fair trials are an absolute right in Pakistan. He brings up the case of Afzal Guru. He calls India’s allegations “unwarranted and concocted” and brings up the case of the Samjhauta Express which was burnt, and the 2002 violence in Gujarat. He says India has become the judge and executioner in the Pulwama attack.
He also cites the use of pellet guns by the Indian Army, and rape of the 8-year-old girl in Kashmir. The Indian Army’s court of inquire dismissed all charges against officers charged with killing civilians, he says.
The Preamble the VCCR makes it clear that the position as at customary international law was unaffected in the absence of express provisions to the contrary in the VCCR.
He argues that there is no need to read down Article 36. He says the Preamble of Vienna convention is not the actual law and international law prevails when matters are not expressly regulation by the VCCR.
Mr. Qureshi argues India has adopted a "blatantly contradictory position" unlike Pakistan. Referring to the passport of Jadhav, he says it was rhetoric that has been used throughout by India by way of pure and hollow response on this issue.
He accuses India of seeking to twist the facts and break the law to suit its purpose. "India's conduct connot go unchecked, " he says.
Mr. Qureshi calls NSA Ajit Doval as “India’s self-styled superspy.” He also says that if Mr. Doval went to London, there is a vancancy for an actor to play James Bond.
Mr. Qureshi says that providing an explanation for India’s statement that Jadhav was kidnapped from Iran would expose the fiction that it was. Pakistan asks how India’s approach can be anything other than wholly improper, if not absurd. Is the approach of India as it suggests really to “hammer the facts, hammer the law”? he asks. He says that India seeks to break the law ti suit itself.
Mr. Qureshi says, “India now, finally, asserts that the report of the Military Law Experts is ‘irrelevant’ and should be ‘completely disregarded’... After having doctored the report, India enthusiastically embraced the report as being supportive of its conclusions.”
He also says that case is not only about denial of consular access to Kulbhushan Jadhav. He adds that India believes it has no duty to ensure accuracy in its pleadings or to effect timely corrections, and there are no consequences for its blatant inaccuracies otherwise. “India must accept that it placed an inaccurate document in the court,” says Mr. Qureshi.
“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 says in an apparent reference to India’s Counsel Harish Salve, who had on Wednesday slammed the language and tone of Qureshi’s opening arguments, and his reference to Humpty Dumpty.
The court convenes, and Justice Jillani has arrived. He is introduced to the court. The court rises as Justice Jillani makes the solemn declaration. He has now been sworn in.
Khawar Qureshi, counsel for Pakistan begins his counter-arguments. He says that India did not reply succinctly to his arguments. Instead India criticised Pakistan for not embracing “studied moderation” in response to India’s repeated excursions from truth and reality to, the realms of irrelevance and fiction, he says.
Mr. Qureshi says that India’s attempt to drown out the truth with background noise will not work. “India persists in contumelious conduct. India fails to engage with the evidence that states made an exception to espionage prior to the VCCR being adopted — that state practice was unaffected by VCCR.”
He also says that India is driven to deny the Peshawar High Court decision of October 18, 2018 any meaning or relevance..
Pakistan media reports state that Chief Justice Jillani is expected to attend the hearing today.
He had been unable to be here for the first three hearings, but he hasn’t been replaced as ad hoc judge because he’s been taking part in proceedings and could continue to do so by following the proceedings either via transcripts or watching the video.
Judgements by the ICJ are made on average within six 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 “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.