The International Court of Justice will decide whether to order Pakistan to temporarily halt the execution of former Indian naval officer Kulbhushan Jadhav after what India termed a “farcical” military trial in Pakistan, following a day of intense public hearings at the Peace Palace here.
During the hearings, India’s Counsel Harish Salve accused Pakistan of “egregious violations” of the Vienna Convention on Consular Access.
‘Situation is grave’
“The situation we find ourselves in is grave and it is urgent and is the reason we have sought the indulgence of this court for a hearing on the indication of provisional measures,” he told the court during a 90-minute session on Monday morning. “The Vienna Convention offers no exception.”
In its presentation, Pakistan dubbed Mr. Jadhav a “terrorist” and accused India of ambushing it by pushing for provisional measures (stay on execution) from the court, denying the need for extreme urgency in the case. It asserted that Mr. Jadhav had 150 days to legally challenge his sentence, while stating that the Vienna Convention provisions were not intended for a ‘spy’ involved in terror activities.
Kulbhushan Jadhav: the story so far
The decision of the court, in the form of an order, could come within days, with the shortest period ever taken by the court on an order being the day after the hearing.
Opening the arguments for India, Joint Secretary (Pakistan-Afghanistan-Iran) in the Ministry of External Affairs (MEA) Deepak Mittal was scathing about the “miscarriage of justice” and the “concocted charges” on which Mr. Jadhav was arrested and sentenced.
Mr Mittal warned that without provisional measures requested by India, Pakistan would execute Mr. Jadhav before the court could consider the merits of India’s claim, doing “irreparable damage” to the rights of India and Mr. Jadhav.
Later in the afternoon, Pakistan’s Ambassador to the UAE and Agent for Pakistan at the hearing Moazzam Ahmad Khan said, “We will not be cowed…we will not allow any attempt to malign or misrepresent our processes to go unchecked.”
Ahead of Pakistan’s session in the afternoon, speculation centred on whether it would be able to air the video of Mr. Jadhav’s alleged confession, already available online. The court, however, denied permission.
On consular access
Addressing the court, Mr Mittal said India had made repeated requests for assistance on consular access, which was denied and eventually told that access would only be given in light of India’s cooperation in the Pakistani investigation.
Mr. Salve accused Pakistan of “egregious violations of the Vienna convention,” right from Mr. Jadhav’s arrest in March 2016. He described as “facetious” a May 12 communication from Pakistan that outlined the legal avenues open to Mr. Jadhav, noting that it had failed to provide an assurance that the sentence would not be carried out. India relied solely on the Vienna Convention and not the agreement between India and Pakistan on consular access, he said.
“Boot straps” argument
Pakistan’s counsel Khawar Qureshi QC rejected the extreme urgency of the case, arguing that the demand for provisional measures amounted to a “boot straps’ argument. He added that questions over the “palpably false passport” on which Mr. Jadhav was arrested, allegedly in Balochistan, required further explanation.
He also pointed to past hearings where India had sought to challenge the jurisdiction of the court, and questioned the characterization of the 2008 agreement as not relevant. “Serious allegations have been made against a member state of the United Nations and not one jot of evidence has been provided by India,” he said and described India’s allegations that Mr. Jadhav was kidnapped in Iran as “far fetched.”