The second and final round of public hearing on the Kulbhushan Jadhav case began at the Internation Court of Justice on Thursday, with India and Pakistan responding to earlier arguments and presenting their closing statements before the 15-judge Hague tribunal.
The dispute began in 2017 when a retired Indian Navy Officer was arrested on charges of espionage and sabotage, from the restive Balochistan province while illegally crossing the Pakistani border from Iran, although India disagrees with that version.
Suspected to be a RAW spy, Jadhav who insists being in the region for business matters, was awarded the death penaltyin a “farcical trial” by a Pakistani military court in April 2017stayed only after India moved the UN court with an appeal to cancel the order.
A 10-judge ICJ bench had to intervene and stay Jadhavs execution on May 18, May 2017, until the case was heard at the Peace Palace. The four-day hearing began this Monday, February 18, 2019.
The hearing opened at the UN court headquarters on Monday amidst heightened tensions between the two nations in the wake of a devastating terror attack in Kashmir allegedly orchestrated by a Pakistan-based militant group.
Ex-solicitor general of India Harish Salve who represented the MEA built his case for Jadhavs innocence on two broad issues, namely, the breach of the Vienna Convention and the illegality of the process of judicial resolution at Pakistans military court.
The first day of oral arguments concluded with India accusing Pakistan of knowingly, and brazenly flouting the Vienna Convention on Consular Relations, to which Pakistan responded on Tuesday saying, it is not about consular access but a matter of political theatre and grandstanding.
How India responded to Pakistan’s arguments and counter-allegations
Saying Pakistan is responsible for the successive attacks on Kashmir and Balochistan last weeks and is guilty of providing a safe haven to UN-proscribed terrorist entities, Salve in his final arguments stated that Pakistan is under considerable global pressure, especially from the Financial Action Task Force (FATP) that combats money laundering and financing of terror.
As several countries including the US, France, Israel Iran come out in condemnation, Salve claimed that India’s neighbouring nuclear power is using Jadhav’s case as a pawn to try and divert global scrutiny from its own conduct, referring to the state sponsorship of terrorism, which India believes led to the Pulwama attack on February 14, 2019, carried out by Pakistan-based terrorist outfit Jaish-e-Mohammed (JeM).
Mind your language and evidence, India tells Pakistan
Also objecting to the use of abusive language by Pakistan’s counsel Khawar Qureshi on the second day of the hearing, Salve urged the UN to draw a red line to prevent a recurrence of the same.
“The language echoed in this court… perhaps this Court may lay down some , Salve said, expressing his anguish at the fact that the transcript is “peppered with words such as shameless, nonsensical, laughable, breathtaking arrogance.”
“India takes exception to addressed in this fashion. I would let the matter rest as Indian culture prevents me from indulging in a similar language of insults,” Salve said on Thursday.
The Indian legal team also Pakistan’ attempts to produce the video of Jadhav’s purported confession and two new expert witnesses on February 18, before the oral hearings. The Court declined to take the video on record and subsequently denied the cross-examination of Deputy High Commissioner JP Singh.
India had opposed these requests since they required arrangements in advance of the hearings. “This Court doesn’t need experts to help it decide whether Military Courts in Pakistan are due process-compliant,” Salve further claimed, to which Pakistan later expressed contempt.
Outlaw military court trials for foreign nationals, especially civilians: Salve concludes
Speaking out against Pakistan’s culture of trying civilians at military courts once again, Salve criticised the manner in which they function, saying it has been noted by the European Parliament as well. If the military courts don’t measure up to due process then domestic statutory law is irrelevant, he claimed.
In the absence of a fair and public hearing, a competent and independent tribunal and a counsel of their own choosing, Salve submitted that the ICJ must decide if such can be sanctified.
He also pointed out that Pakistan’s argument that judicial review by “experts” is a sufficient safeguard, is presumptuous as such a review is hopelessly insufficient. In the Ajmal Kasab case, the Indian Supreme Court had held that it intended to examine material first-hand and to come to their own conclusions. “This is called a review,” Salve held, adding while Pakistan completed Jadhav’s trial in 4 months, the one on 26/11 is still pending.
Time to make Article 36 a potent weapon to protect human rights: India submits
Salve stressed the importance of Article 36 of the Vienna Convention on Consular Relations 1963, saying that the 2008 bilateral agreement between India and Pakistan cannot take away the rights conferred by the international statute.
It should have the same meaning irrespective of the states involved, he said. “It must mean the same as it means between America and Brazil.”
In consideration of the violation of Vienna Convention, in the absence of due process and various others factors including Pakistan’s use of the confession document as a propaganda tool, this case calls for appropriate relief according to Salve.
Evidence: The of Jadhav’s nationality vis-a-vis his passport & articles by Indian media
Responding to Pakistan’s arguments claiming to have clinching evidence against Jadhav, Salve said on Wednesday, “If Jadhav had been involved in subversive activities, irrespective of whether or not he had an Indian passport, he would have been tried for espionage.” Despite 13 reminders for consular access and repeated demands for evidence and the conviction , Pakistan remained unresponsive.
Instead, Salve claimed, what Pakistan banked on were excerpts of by Indian journalists and Jadhav’s passport under an assumed Muslim identity.
By hanging its case on possession of this passport, Pakistan made the case that India has sponsored terrorism on its soil. “Pakistan claims that Jadhav was an Indian terrorist, sent by India, this a flying leap of faith. Possessing a passport doesn’t make party to those , your role in those gets you conviction. Jadhav is being sent to the gallows on the basis of an extracted confession,” Salve claimed.
Referring to The Quint report by Praveen Swami, cited by Pakistan’s counsel on Tuesday, Salve said the article also mentions that Jadhav was in Iran, which if true, would mean the FIR against him (and by relation, the narrative propagated by the Pakistan Army) is false.
Eloquently, Salve lashed out at what he claimed was an utter lack of evidence. “As old lawyer saying goes, “When you are strong on you hammer the law, when you are strong on facts you hammer the facts and when you are strong on neither you hammer the table.”” Bereft of a case, Pakistan has hammered the proverbial table, claimed Salve.
Pakistan’s closing arguments
“India’s position is as devoid of legal merit now as it was on 8 May 2017… India’s claim of relief remains as far fetched now as it was then,” Qureshi claimed before vacating the floor for Pakistan’s Attorney General Anwar Masoor Khan to make his concluding remarks.
Qureshi also hit out at India’s standards and propensity for twisting facts and breaking the law in order to suit its purpose.
Khan, calling Salve’s criticism of Pakistan’s judicial system uncalled for, said, “Pakistan has a very robust judicial review and reconsideration system.”
“When we talk of the unfortunate incident of Pulwama… India has become the judge and executioner and call themselves the victim without any evidence… Pakistan has the right to ask for proof,” Khan said, also mentioning India’s alleged use of pellet guns in Jammu and Kashmir.
Retiring for deliberations late Thursday, the Court has notified it will declare the date of the judgment “in due time”.
Prarthana Mitra is a staff writer at Qrius