Kulbhushan Jadhav case: How India and Pakistan presented their cases at The Hague, verdict pending

The four-day public hearing of the case of Kulbhushan Jadhav began at the International Court of Justice (ICJ) in The Hague on February 18, as India and Pakistan presented their respective arguments regarding the retired Indian Navy Officer 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 2017, against the “farcical trial” convicting the 48-year-old Jadhav, whom Pakistan insists is a RAW spy, not a businessman. 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.

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.

Key points from Salve’s submission

Harish Salve who was representing India built his case for Jadhav’s innocence on two broad issues, namely, the breach of the Vienna Convention and the illegality of the process of judicial resolution at Pakistan’s military court.

Requesting the ICJ to annul Jadhav’s death sentence and declare his trial in Pakistan “unlawful”, the ex-solicitor general began his arguments saying, “It is an unfortunate case where the life of an innocent Indian is at risk.”

Jadhav had been convicted by the military court based on a “farcical case” which “hopelessly failed” to comply with even the minimum standards of due process, Salve told the ICJ. He informed the Hague tribunal that Pakistan’s constitution was recently amended to try civilians at military courts, traditionally meant to try military officials only.

A foreign detainee has right to life, right to fair trial and an impartial judiciary, Salve argued, but Pakistan’s military courts have put 161 civilians to death over the last two years shrouded by a process designed for opacity.

“Pakistan’s story is solely based on rhetoric and not facts,” he added saying that Jadhav’s purported confession appears “coerced” and “no credible evidence” has been provided by Pakistan yet that proves his involvement in any terrorist activity.

Pakistan has not yet disclosed the judgment convicting Jadhav as they are embarrassed to disclose the charges for the lack of material against him, claimed Salve.

By using his confession document as a propaganda tool and in refusing India “consular access without delay” when Jadhav was under detention, Pakistan has disrespected and disregarded its obligations under Article 36 of Vienna Convention on Consular Relations 1963, he claimed.

Article 36 is a powerful tool which ensures the facility of consular access to foreign nationals who have been put on trial in a foreign court. India has always given consular access to Pakistan whenever its citizens were caught by India on charges of terrorism but Pakistan did not reciprocate in Jadhav’s case, Salve lamented. Not only that; Pakistan also failed to inform Jadhav of his right to consular access and notify India of his arrest, said in his submissions.

The counsel further pointed to the discrepancy that Pakistan waited almost a month after his arrest before filing the FIR. His confession was obtained before registration of the FIR, Salve claimed.

History of the case: Pakistan’s version

On March 3, 2016, Jadhav was captured while illegally crossing the Pakistani border from Iran, claim Pakistani officials. He was apprehended by security forces in the restive Balochistan province.  

Pakistani military accused Jadhav of entering the country to carry out espionage activities in Balochistan and sentenced him to death. According to News18, Pakistan said, “Jadhav was not an ordinary person as he had entered the country with the intent of spying and carrying out sabotage activities.”

His sentencing evoked a sharp reaction in India and among Indians across the world. In December 2017, Jadhav was allowed a meeting his mother and wife in Islamabad. Although both countries had an understanding of the manner in which this family meeting would be conducted, India accused Pakistan of reneging on the conditions.

The MEA released a statement saying Pakistani officials stood by as Jadhav’s family was harrassed; his wife was forced to remove her mangalsutra, bindi, and bangles, and his mother was disallowed from speaking in her mother tongue.

The statement also says that contrary to the terms of the family meeting, Pakistan created an atmosphere of fear and intimidation by allowing the press unfettered access and starting the meeting in the absence of the Deputy High Commissioner.

“From the feedback we received, it appears Shri Jadhav was under considerable stress and speaking in an atmosphere of coercion. Most of his remarks were clearly tutored and designed to perpetuate the false narrative of his alleged activities in Pakistan. His appearance also raises questions of his health and well being,” said the MEA.

India’s version of events

India maintains Jadhav’s innocence, claiming that he was kidnapped in Iran where he had business activities following his retirement from active service in the Navy, and brought to Pakistan against his will.

When Jadhav was sentenced to death, India moved the ICJ for the “egregious violation” of the provisions of the Vienna Convention by Pakistan, which repeatedly denied New Delhi consular access to the Indian national despite 13 reminders.

India says that since the case involves the interpretation and application of a multilateral international treaty – Vienna Convention on Consular Relations- ICJ can exercise jurisdiction, regardless of Pakistan’s consent. 

Pakistan has countered saying the convention only applied to legal visitors, not convicted spies, further citing that Jadhav with a passport bearing an assumed Muslim identity left no basis for India to refute the sentence.

Pakistan’s counsel on Tuesday brought up the issue of the false passport, saying, “A passport in the name of Hussain Mubarak Patel was issued in 2003 and renewed in 2014. The address mentioned on the passport is that of the property owned by Jadhav’s mother.”

However, Salve on Monday said that Article 36 does not give any exception to charges of espionage.

How Pakistan responded to India’s accusations at The Hague

Pakistan on Tuesday accused India of “sitting on a wall of lies” and using the International Court of Justice (ICJ) for “political theatre,” urging the 15-judge bench to dismiss India’s case seeking respite from execution for Jadhav.

Attorney General of Pakistan Anwar Mansoor Khan on Tuesday argued that Jadhav was an Indian spy sent to Balochistan to the country, a sentiment echoed by the English Queen’s Counsel Khawar Qureshi who represented Pakistan. Under Narendra Modi’s tenure, RAW has reinforced its attempts to Balochistan, Qureshi argued.

Accusing India of persistently pursuing “the policy of trying to destroy Pakistan,” Khan added, “India’s claim for relief […] must be dismissed.”

Qureshi questioned if India ever investigated Jadhav’s arrest from Iran, referring to the “baseless” allegation that he had been abducted in Iran before being brought to Pakistan.

Asking for evidence of the alleged nine-hour trip between Iran and Pakistan, he further clarified, “Iran has nothing to do with the Jadhav case. Jadhav was arrested from Balochistan and not Iran and the story regarding his kidnapping from Iran is baseless.”

Iran is also reportedly in touch with both countries over the issue. However, its foreign minister, Javad Zarif, said, “We do not want Iran to become a theatre of animosity between our two friends—India and Pakistan. We will work with both sides to bring the region closer to peace and security.”

Pakistan’s questions

Khan further told the court that Jadhav ran a network “to carry out despicable terrorism and suicide bombing, targeted killing, kidnapping for ransom and targeted operations to create unrest and instability in the country”.

“His unlawful activities were directed at creating anarchy in Pakistan and particularly targeted the China-Pakistan Economic Corridor,” Khan said, adding that they were committed “at the behest of the Indian state and the government.”

A confession by Jadhav obtained by Pakistani officials “speaks of India’s state policy of sponsoring terrorism in Pakistan,” he said, while Qureshi furnished excerpts from articles by Indian journalists Karan Thapar and Parween Swami to claim Jadhav was a spy.

Qureshi further asserted that India has failed to answer important questions like clarifying if Hussain Mubarak Patel — as Jadhav is referred to in his other passport — is his real identity. Since a decision cannot be made about his nationality, Pakistan has not been able to respond to the requests for consular access, claimed Qureshi.

Why it matters and what’s next

A 10-judge ICJ bench had stayed Jadhav’s execution on 18th May 2017, until the case was heard at the Peace Palace. On January 23, 2018, the ICJ gave India and Pakistan a timeline to prepare arguments; both countries have submitted their pleas and responses in the world court.

Just ahead of the hearing, Pakistan, however, appealed to adjourn the hearing citing the illness of its ad-hoc judge, a request that was not entertained by the ICJ. One of the ICJ judges – Dalveer Bhandari – is Indian, while the former Chief Justice of Pakistan Tassaduq Hussain Jilani was supposed to serve as an ad hoc judge on the case before he suffered a cardiac arrest.

This is the fourth time the ICJ is hearing on a case involving a death sentence and the first time that the US isn’t involved. The previous three cases involved Germany, Mexico Paraguay.

The four-day trial will end with Pakistan’s closing arguments on Thursday. ICJ’s decision is expected to be delivered by the summer of 2019. The outcome of the trial is expected to further exacerbate the relations between the two South Asian nations, currently reeling under the military, economic and diplomatic aftermath of the Pulwama terror attack.

Prarthana Mitra is a staff writer at Qrius

EspionageHagueHarish SalveIndo-PakKulbhushan JadhavPulwama