Under fire over the loss of face at The Hague where the International Court of Justice stayed the execution of Kulbhushan Jadhav till a final decision is taken on India’s appeal, Pakistan is considering the appointment of an “ad hoc judge” to the global court. Justice Dalveer Bhandari of India is on the bench of the ICJ.
Sartaj Aziz, Advisor on Foreign Affairs to the Pakistan Prime Minister, said a new team of lawyers will be constituted to “present Pakistan’s stance vigorously” at the ICJ.
“Pakistan’s security is so important and we have to maintain our fundamental sovereign right,” Aziz told Samaa TV news channel on Friday. In the same breath, he defended the current legal team, saying it had “courageously presented Pakistan’s stance”.
A top Pakistan government functionary said Islamabad is considering the option of appointing an ad hoc judge. “This stems from a belief in Pakistan right now that India had an advantage due to the presence of former Supreme Court judge, Justice Dalveer Bhandari,” the functionary said.
According to this functionary, the ad hoc appointment provision lies in Article 31, paragraphs 2 and 3, of the Statute of the ICJ: “a State party to a case before the International Court of Justice which does not have a judge of its nationality on the Bench may choose a person to sit as judge ad hoc in that specific case under the conditions laid down in Articles 35 to 37 of the Rules of Court”.
According to ICJ rules, the ad hoc judge does not necessarily have to be of the nationality of the designating State. At present, there are many ad hoc judges, depending on the case – in a case between Nicaragua and Costa Rica, for example, both have appointed judges.
Similarly, in a case between Congo and Uganda, Congo has named an ad hoc judge. Again in a case of certain Iranian assets, the US appointed a judge of its choice.
The ICJ rules also say that a party must announce as soon as possible its intention to choose a judge ad hoc – a criticism which the Pakistan government is facing right now.
Taimur Malik, Pakistan-based lawyer and former Executive Director of the Research Society of International Law (RSIL) Pakistan, wrote in Dawn on Friday: “It should be noted that Pakistan now has a right to appoint an Ad Hoc Judge of the ICJ for this specific case…. pundits have shown concern regarding the presence of an Indian Judge at the ICJ and the appointment of an Ad Hoc Judge by Pakistan should put to rest any concerns of the ICJ being influenced by one of its members.”
He also mentioned a few names, which could be possible options. “Pakistan will have to select its nominee wisely. Possible options could include a retired Chief Justice of Pakistan (e.g. Justice Tassaduq Hussain Jillani), Pakistan’s leading international law expert, Ahmer Bilal Soofi (who is also an elected member of the UN Human Rights Council Advisory Committee), or an international candidate such as Judge Bruno Simma (former Judge of the ICJ) who was appointed as an arbitrator by Pakistan in the Indus Water Kishenganga Arbitration.”
The Express Tribune reported that Pakistan’s law ministry was considering name of Jordan’s former Prime Minister Awn Shawkat Al-Khasawneh – who has already been an ICJ judge in the past – as Pakistan’s ad hoc judge.
Indian officials said they were yet to hear an official response to the appeal filed by Jadhav’s mother, Avanti. There was also no word from the Pakistan government on the consular access request. The 40-day appeal period ends on May 19, since Jadhav’s sentencing was done on April 10.
In South Block, officials said if the appellate court in Pakistan rejects Jadhav’s appeal, he has two more options – he can file a mercy petition to the Pakistan Army chief within 60 days of the appellate court’s decision, and he can file another mercy petition with Pakistan’s President within 90 days of the Army chief deciding on his appeal.
Sources said that despite several pleas, the Indian government has also not been provided the FIR, chargesheet, or a copy of the Pakistani military court’s verdict against Jadhav. “We hope Pakistan’s approach changes after the ICJ verdict,” an official said.