Not one jot of evidence provided by India, says Pakistan at ICJ

The Indian delegation at the International Court of Justice in the Kulbhushan Jadhav case.   | Photo Credit: Vidya Ram

The International Court of Justice in The Hague held public hearings on the case of Kulbhushan Jadhav, the former Indian Naval officer, who was arrested and sentenced to death by Pakistan in April over allegations of espionage and abetting terror.

The one-day hearing involved two sessions of an hour-and-a-half, according India and Pakistan an opportunity to make their case, starting with India in the morning. Pakistan’s session followed later in the afternoon. The court’s judgment, which could follow as early as in a few days or take several months, is binding with no appeal.

Vidya Ram sends updates from The Hague:

7.35 p.m.: Mr. Salve speaks to The Hindu outside the court. "Either he is an India spy or he is not an Indian national - I don't know how he is both."

7.20 p.m.: Court will render its order as soon as possible. The date of the delivering of the order will be duly communicated, says Judge Ronny Abraham. With that, the sitting is closed.

7.10 p.m.: Mr. Qureshi brings up the question of the "palpably false passport". " India says Jadhav is an Indian national. What has India done to prove that or establish that?," he asks. "It may not be surprising why that is the case."

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Mr. Qureshi brings up the 2008 agreement, "which we've been told is not relevant. It is unfortunate that a technical argument is being brought before this court. 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 says kidnapping Mr. Jadhav from Iran for the sole purpose of getting a confession out of him seemed "far fetched". Says there is a long border between India and Pakistan, they could have taken anyone they wanted, so why would they take Jadhav from Iran?

It was said at this court that the Govt of Pakistan was denying consular access to Jadhav. Nothing can be further from the truth, says Mr. Qureshi. 

6.40 p.m.: Pakistan accuses India of ambushing it by bringing this case and rejects the need for urgency on this case. Q.C. Khawar Qureshi is presenting Pakistan's case.

Mr. Qureshi - India should have only brought this application in extreme emergencies. It is clear after our arguments that there is no urgency with this. Govt of Pakistan is confident that law will prevail and India will find its claim has been dismissed. The question of access to Jadhav will be decided on the merits. The Indian authority were provided with the detailed copy of the FIR. Jadhav was arrested from Balochistan. He crossed in from Iran. His confession video was aired on 25 of March.  Provisional measures cannot and will not flow if the relief that India is seeking cannot be granted in this court. These provisional measures sought by India are "boot straps argument". India's only goal is the stay order.

Pakistan brings up past cases where India had questioned jurisdiction of the court in 1974, and 1999/2000.

6.35 p.m.: Pakistan responds to India's charges.

6.30 p.m.: Pakistan will not broadcast the confession video as speculated earlier.

6.15 pm:  The hearings are being held in front of 11 of the court’s 15 judges, including President Ronny Abraham of France, and Indian Judge Dalveer Bhandari. The judges are elected to nine year terms by the Security Council and General Assembly and are required to put their national loyalties aside in the consideration of cases, being independent magistrates rather than representatives of their government.  As none of the judges include a Pakistani judge, Pakistan would theoretically have the right to appoint a person to sit as a judge ad hoc for the purpose of the case. However, this has not happened so far.

5.10 pm: Speculations are rife that Pakistan might broadcast the video of the alleged confession at second half of the hearing at the ICJ.

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4.30 pm: With the Pakistan session a few hours away, Pakistan channels are reporting that their delegation will accuse India of terrorism in its arguments later in the day.

3.40 pm: Harish Salve says to the media outside the court, "We are here in the hope that Jadhav will not be executed. At present, we are looking for provisional measures."

3.20 pm: The Delegation from Pakistan is:

Moazzam Ahmad Khan, Ambassador of Pakistan to UAE as Agent

Mohammad Faisal, DG (South Asia & SAARC) as Agent

Syed Faraz Hussain Zaidi, Counsellor of the Pakistan Embassy in the Netherlands as Adviser

Q.C. Khawar Qureshi as Counsel

Asad Rahim Khan as Junior Counsel

Joseph Dyke as Legal Assistant

3.10 pm: The ICJ judge closes the session. Pakistan will present its case later in the day. 

3.10 pm: Mr. Mittal presents his closing statements and thanks the ICJ.

3.00 pm: Mr. Salve says -  In its letter of 21st March, Pakistan said to India that the request of consular access can be entertained if India assists in the investigation.  The more serious the charge the greater the need to ensure procedural safeguards to ensure that the accused gets a fair trial.  The confession played a significant part in the case. The allegations were made even as Jadhav's basic rights were denied.  India has a strong case that provisional measures be executed that Pakistan take all measures to ensure Jadhav is not executed; that the Pak. government ensure that no action be taken that might prejudice the rights of India or of Jadhav.

2.55 pm: Mr. Salve says," The rights of Article 36 are sacrosanct. The rights of consular access are a significant step in the evolution of human rights in international law. Article 6 of the ICCPR recognises that no one can be arbitrarily deprived of their lives.  In determination of criminal charges, everyone can be entitled to a fair hearing. The person should be given Legal assistance of his own choosing and should be informed of  his rights in the interest of justice. In order to make this principle a reality, adherence to rules of Vienna Convention becomes vital. The graver the charge greater is the need for punctilious adherence to the Vienna Convetion.

 

2.45 pm: Mr Salve: On obtaining information on Jadhav's detainment India sought consular access on the same day. Following that, many  requests for access has been made by India.  Indian Nationality of Jadhav of has never been in doubt. Thus the Vienna Convention has been breached by Pakistan in the issue of consular access to Jadhav. There was a purported confession by him that was the basis of their case.  The Vienna Convention does not include any exceptions in respect to Consular access.  This underlines the farcical nature of the trial.  On 19th April India handed over a note to Pakistan seeking details of the charges and the summary of the trial proceedings. 

2.33 pm: Mr. Salve says,"India relies on the Vienna Convention. Mr. Salve refers to the case between Bulgaria and Belgium as precedent in the issue of jurisdiction.  The agreement between India and Pakistan on consular access is irrelevant.  India does not rely and does not need to rely on this agreement. It bases its case solely on the Vienna Convention. 

2.20 pm: Mr. Salve says," India asserts in the application that Pakistan denied consular access to Jadhav. The reasons for the said denial was also not given to India.  India has not been given a copy of the charges or the verdict and hence  has been unable to check the charges. The Vienna Convention offers no exception. India asserts that the breach of the Vienna Convention is fatal.  Under Article 36, jurisdiction exists in respect of all cases that parties refer to and in respect of all matters specially provided for in treaties and conventions."

1.58 pm: Harish Salve as India's counsel starts presenting his statement -  I am grateful to the ICJ for taking up the case at such short notice.  India has moved ICJ under  Article 14 seeking suspension of the sentence awarded to Mr. Jadhav.  The case is grave and urgent. Mr. Salve refers to precedent of past cases including LaGrand case between Germany and US in 1982.  The case refers to the hearing before the ICJ which concerned the Vienna Convention on Consular Relations. 

Harish Salve says,"Jadhav's mother has filed for an appeal which was transmitted to Pakistan via diplomatic paths.  The communication of 12th May does not clarify on what his charges are or any clarity on the request for clemency.  Pakistan said that Jadhav's sentence is based on credible evidence in espionage against Pakistan. India refuses these allegations and says that Jadhav was kidnapped and framed.  India has taken measures to ensure appropriate legal measures for Jadhav.  It is not known whether Jadhav will seek clemency in the present circumstances.

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1.52 pm: V.D. Sharma, Joint Secretary, MEA as co-Agent presents statement:  Pakistan failed to comply to all its obligations under Article 36. It denied consular access to Mr. Jadhav ever since his arrest. India and Pakistan are both parties to the case and the issue has been brought to ICJ by ICJ. The bilateral agreement between India and Pakistan is irrelevant at this juncture, says Mr. Sharma. 

1.45 pm: India has been reiterating its request to Pakistan on consular access to Jadhav, says Mr. Mittal. India learnt from press reports that death sentence was awarded to Mr. Jadhav on the basis of a alleged confession. Pakistan has not provided the chargesheet, any documents on the case despite repeated requests. It is clear that Mr. Jadhav has been denied of his right to seek legal counsel.  Mr. Jadhav's parents have applied for visa to travel to Pakistan which has fallen on deaf ears: Mr. Mittal.

1.40 pm: Deepak Mittal as India's Agent starts his opening statements seeking immediate suspension of the death sentence awarded to Kulbushan Jadhav.  Calling Pakistan's trial as 'farcical', Mr. Mittal introduces the Indian delegation at the Court. 

India has been reiterating its request to Pakistan on consular access to Jadhav. India learnt from press reports that death sentence was awarded to Mr. Jadhav on the basis of a alleged confession. Pakistan has not provided the chargesheet, any documents on the case despite repeated requests, says Mr. Mittal.

1.30 pm:  The judges read out the demands of both the countries. Each of the parties will have full 90 minute sitting - India may avail itself of short extension beyond 11.30 am (local time) this morning. 

1.20 pm: The Delegation from Pakistan includes:

Moazzam Ahmad Khan, Ambassador of Pakistan to UAE as Agent

Mohammad Faisal, DG (South Asia & SAARC) as Agent

Syed Faraz Hussain Zaidi, Counsellor of the Pakistan Embassy in the Netherlands as Adviser

Q.C. Khawar Qureshi as Counsel

Asad Rahim Khan as Junior Counsel

Joseph Dyke as Legal Assistant

(An earlier version of this report said that Moazzam Ahmad Khan, is the Ambassador of Pakistan to The Netherlands. Mr. Khan is actually Pak. Ambassador to UAE.)

1:15 pm: Here are India's demands in the case:

  • India has sought relief in the form of immediate suspension of the death sentence, and a declaration that the sentenced handed to Mr. Jadhav was in defiance of Vienna Convention rights 
  • India says that without provisional measure, Pakistan will execute Jadhav before the court can consider merits of his claim
  • It also calls for the court to restrain Pakistan from “giving effect to the sentence awarded by the military court” and to direct it to annul the decision of the military court.

The International Court of Justice at The Hague, Netherlands.

The International Court of Justice at The Hague, Netherlands.   | Photo Credit: Vidya Ram

 

1:00 pm: Joint Secretary (Pakistan-Afghanistan-Iran) MEA, Deepak Mittal, is India's principal agent, who opens and closes the arguments. Others in the delegation will contribute.

Deepak Mittal as Agent

V.D. Sharma,Joint Secretary, MEA as co-Agent

Harish Salve as Counsel

Kajal Bhat, First Secretary, Embassy of India in the Netherlands as Adviser

Chetna N. Rai as Junior Counsel

12:45 am: Pakistan's delegation has arrived at the venue. Today's proceedings is expected to begin by 1:30 pm  and will be heard by 11 judges.

12:40 pm: Pakistan will be presenting its case using past precedent where India has refused the ICJ jurisdiction, including in the 1999 Atlantique case of a plane that was shot down by India.

12:30 pm: Ahead of the hearing, legal teams from India and Pakistan arrived at The Hague. The Indian team, led by former solicitor general Harish Salve who won the stay at the ICJ last week, is expected to focus on the violations of the Vienna convention by Pakistan on the issue of consular access, and on the lack of transparency in the Pakistani military court, which India has said, in its 12-page appeal, qualifies for the trial to be pronounced “illegal”.

12:20 pm: The case of Mr. Jadhav — whom Pakistan accuses of being a spy for India’s Intelligence Agency Research and Analysis Wing, but who India says is innocent and has been kidnapped by Pakistani agents from Iran — has become a proxy for tensions between the two countries. n

(With inputs from Kallol Bhattacherjee)

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Printable version | Jan 22, 2021 12:14:24 PM | https://www.thehindu.com/news/international/live-kulbushan-jadhav-hague-icj-hearing/article18456024.ece

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