Surprised by ICJ order, Pak. mulls next move

Published - May 13, 2017 07:23 pm IST - Karachi

New Delhi: File photo of former Indian naval officer Kulbhushan Jadhav who has been sentenced to death by a Pakistani military court on charges of 'espionage'. PTI Photo (PTI4_11_2017_000103B)

New Delhi: File photo of former Indian naval officer Kulbhushan Jadhav who has been sentenced to death by a Pakistani military court on charges of 'espionage'. PTI Photo (PTI4_11_2017_000103B)

Pakistan’s Attorney General’s Office in the Supreme Court building in Islamabad is witnessing unusual late sittings these days. India’s application in the International Court of Justice against the hanging of Kulbhushan Jadhav, who has been convicted of espionage in Pakistan, and the ICJ intervention have caught many by surprise in Islamabad.

After a military court in Rawalpindi sentenced Jadhav to death on April 10, Pakistani authorities had turned a blind eye to India’s responses. India was denied consular access to Jadhav. No lawyer in Pakistan was willing to take up his appeal. Just when the Pakistani government thought the Jadhav case is almost closed, India moved the ICJ at The Hague.

The prime Minster’s Senior Adviser on Foreign Affairs Sartaj Aziz told reporters that Pakistan is examining the Indian move and the Foreign Office will soon respond in detail. The response is yet to come.

On the other hand, Attorney General Ishtar Ausaf’s office is combing through bilateral treaties and agreements. Pakistan’s first line of defence to counter India’s plea was an agreement reached in 2008 on consular access. Clause VI of the agreement says a ‘decision to grant consular access in cases where detentions and arrests relate to political or security matters” will be taken “on the merits of the case”.

The Atlantique incident of 1999, when a Pakistan Navy plane was shot down by India in the disputed Rann of Kutch area, is of special interest to Pakistan. After the incident, Pakistan invoked ICJ jurisdiction against India. But India got a reprieve in a 14-2 majority verdict as ICJ held that the international court has no jurisdiction in the presence of bilateral agreements. Pakistani lawyers believe the precedence of Atlantique case can be the first obstacle for India in the Jadhav case.

Besides, Pakistani officials say the military court verdict on Jadhav is not final. “There are at least three forums of appeals left. One is the review in FGCM (Field General Court Martial), the second is the Supreme Court and the final is the mercy petition. Pakistan will argue before the ICJ that since appeals are available in Pakistan therefore the ICJ cannot take up the case,” a lawyer associated with finalising Pakistan’s response said.

Ali Nawaz Chohan, who served as a judge at ICJ during 2006-09, shares the same view. “Pakistan’s best defence is that India should exhaust all forums of appeals in Pakistan before contacting the ICJ,” he said.

But he feared that the ICJ being very sensitive to human rights cases can overlook its jurisdiction. “It can apply the Vienna Convention of the law of treaties of 1969 (VCOLT) to which Pakistan is a signatory to override all local laws of the country if it is convinced that any violation of human rights has taken place,” he pointed out.

He stressed that a consular access by Pakistan at any level to Jadhav would have closed this small window of opportunity for India.

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