IN A tense face-off on Monday at the International Court of Justice in The Hague, India sought “annulment” of the death sentence awarded to Kulbhushan Jadhav by a Pakistani military court while Pakistan said the clemency process of 150 days should be exercised first and the plea citing urgency should be “dismissed”.
Pakistan, which wanted to screen a six-minute video of Jadhav’s confession at the ICJ, was denied permission by the court. However, its representative displayed a purported copy of Jadhav’s Indian passport, issued in the name of Hussein Mubarak Patel, on a screen inside the packed courtroom.
After hearing arguments from both sides, the Court’s President Ronny Abraham said the verdict would be announced “as soon as possible” and the date “duly communicated”.
On April 10, Jadhav, a former Indian Navy officer, was given the death sentence by a military court in Pakistan for alleged “espionage and subversive activities”.
On May 8, India approached the ICJ for an urgent hearing, seeking suspension of the verdict.
Arguing before the 11-judge bench at the ICJ, which included former Supreme Court Judge Dalveer Bhandari, India’s counsel Harish Salve stressed that not granting consular access and not giving legal representation of Jadhav’s choosing amounted to “miscarriage of justice” and “violation” of his right to defend himself from “concocted” charges in a “farcical trial”.
Deepak Mittal, joint secretary in charge of Pakistan in the Ministry of External Affairs, said India’s requests to grant consular access “fell on deaf ears” in the neighbouring country.
On behalf of Pakistan, counsel Khawar Qureshi sought the “dismissal” of India’s application, saying there was “no urgency” as the clemency process lasted 150 days. While stressing that the “court’s time is precious”, he said the forum was not for “grandstanding and political point-scoring”.
Qureshi also said that the Vienna Convention’s provisions on consular access were not intended for a “spy” involved in terror activities.
Pakistan’s foreign ministry director general (South Asia & SAARC), Mohammad Faisal, accused India of using the ICJ for “political theatre”, and asked the court not to entertain the application.
In his opening statements, Mittal said, “Jadhav has not got the right to get proper legal assistance and the right to consular access. There is an immediate threat to him to be executed even before a decision is passed.”
He said that there have been as many as 18 executions in Pakistan since April 10, which had got New Delhi worried about Jadhav’s fate. Salve said, “The execution of the death sentence cannot be done while this court is hearing the appeal. Else, it will be a violation of the Vienna Convention.”
Pakistan had denied India 16 requests for consular access, Salve said. “The graver the charges, the greater the need for continued adherence of the Vienna Convention. Jadhav has been in judicial custody without any communication with his family,” he said. The rights of Article 36 of the Vienna Convention on Consular Relations are sacrosanct, Salve said, citing the International Covenant on Civil and Political Rights (ICCPR) that recognises that no one can be arbitrarily deprived of their lives.
Questioning the impartiality of the process, Salve said that although Pakistan claimed that Jadhav had the right to appeal, his mercy plea would be heard by “two-star generals”.
”The result is a foregone conclusion,” Salve said, while questioning the “confession” which was “extracted” from Jadhav in captivity. The right to remedy offered by Pakistan is “illusory”, he said.
Faisal, representing Pakistan, said India’s claim that Jadhav will be executed “within days” is “totally false”. On the alleged confession by Jadhav, he said Pakistan cannot force the “canary” to stop singing. He said the confession video was available publicly, and that he wanted to screen it but the Court had informed him that it had already “seen” it.
Qureshi, Pakistan’s counsel, insisted that India had misrepresented Pakistan’s position on consular access. He cited the bilateral consular access agreement’s clause, where it can be decided on the basis of merit in political and security-related cases. Referring to Jadhav as “Commander Jadhav”, Qureshi sought to emphasise that he was a serving Navy officer, contrary to India’s position that he had retired from its Navy and was running a business in Iran.
Qureshi also claimed that India did not submit the entire dossier on the case to the ICJ, while his side had handed over the names of 13 officials named by Jadhav in his confession.
He said that Pakistan wanted phone records and bank account details of Jadhav and that it had handed over details of the charges against him and a copy of his passport.
Stressing that the request for assistance in investigation was not a “condition” for consular access but a “fundamental requirement”, he said it was misleading to say that Pakistan had put forward a conditionality.
Pakistan also termed as “bizarre” India’s description of the Pakistani military court as a “Kangaroo court”.
Describing as “far-fetched” India’s assertion that Jadhav was abducted from Iran, Pakistan’s counsel said that India and Pakistan have a long border, and there were “millions of people to choose from”.