Kulbhushan Jadhav verdict today — a look at India’s arguments and Pakistan’s defence

Referring to “the extreme gravity and immediacy of the threat that authorities in Pakistan would execute an Indian citizen”, India asked for the execution to be put on hold.

On May 9, 2017, the ICJ asked the two countries to present their arguments and until such time, asked Pakistan not to do anything. On May 15, the two sides presented their arguments; on May 18, the 10-member-bench of the ICJ restrained Pakistan from executing Jadhav until a final verdict is given.

On June 13, the court fixed September 13 for filing of memorial (petition) by India and December 13, 2017 as the time-limit for a counter-memorial by Pakistan. These were filed within the time-limits. The court fixed April 17 and July 17, 2018 as the respective time-limits for written replies by India and Pakistan. These too were filed within the deadlines.

Kulbhushan Jadhav during the meeting with his mother and wife at the Pakistan Foreign Office in Islamabad.

Kulbhushan Jadhav verdict today: Has there been contact with Jadhav?

In December 2017, Pakistan allowed Jadhav’s mother Avanti and wife Chetna to meet him on what it called “humanitarian grounds”. India, however, said the Pakistan government created an “intimidating” atmosphere where Jadhav’s mother and wife were “harassed” and “hectored”.

India said they were asked to change their attire as well as remove their mangalsutra, bindis and bangles, and repeatedly interrupted from speaking in Marathi and Hindi. Contrary to the understanding, Indian Deputy High Commissioner J P Singh was initially separated from the meeting; it was only after his insistence that he was allowed to observe the proceedings from behind a glass partition and he could hardly hear anything.

The family members said Jadhav was not his usual self and gave “tutored answers”. According to the External Affairs Ministry, he gave scripted answers “designed to perpetuate the false narrative of his alleged activities in Pakistan”.

What happened after the written submissions in the ICJ?

The court fixed oral arguments from February 18 to 21, 2019. As it turned out, the hearings took place in the backdrop of the Pulwama terrorist attack on February 14, 2019.

(L-R) Indian Lawyer Harish Salve, Dr. V. D. Sharma and Deepak Mittal, Joint Secretaries, Indian Ministry of External Affairs at the International Court of Justice during the final hearing of the Kulbhushan Jadhav case in The Hague. (REUTERS File)

While India argued on February 18 and 20, Pakistan responded on February 19 and 21. India was represented by former Solicitor General Harish Salve and External Affairs Ministry Joint Secretary (Pakistan-Afghanistan-Iran) Deepak Mittal, and Pakistan by Attorney General Anwar Mansoor Khan while Khawar Qureshi was legal counsel.

Since there was a former Supreme Court of India judge, Justice Dalveer Bhandari, on the 10-member ICJ Bench, Pakistan was allowed an ad hoc judge on the Bench — Tassaduq Hussain Jillani, a former Chief Justice of Pakistan.

Kulbhushan Jadhav case: What arguments has India made?

India has said the sentence is based on an “extracted confession”. Citing international bodies like the European Parliament and the International Committee of Jurists, Salve questioned military courts in Pakistan, saying they do not follow due process. He argued that the Vienna Convention, which guarantees consular access, cannot be selectively given and the ICJ should make it a “human right”. He said Article 36 of the Vienna Convention doesn’t exclude espionage.

Broadly, India has argued:

*The sentence violates international law and provisions of the Vienna Convention;
* India is entitled to restitutio in integrum (restoration to original condition);
* The ICJ should annul the military court decision and restrain Pakistan from giving effect to the sentence or conviction; and
* Pakistan should be directed to release Jadhav immediately and facilitate his safe passage to India.

If the ICJ were to find that Jadhav is not to be released, then India has requested:

*Annul the military court decision and restrain Pakistan from giving effect to the sentence; or
* Direct it to take steps to annul the military court decision; or
* Direct a trial under ordinary law in civilian courts, after excluding his confession and in strict conformity with provisions of the International Covenant on Civil and Political Rights, with full consular access and a right to India to arrange for his legal representation.

(L-R) Attorney Anwar Mansoor Khan, Pakistani foreign office spokesperson Mohammad Faisal and Queen’s Counsel Khawar Qureshi at the International Court of Justice during the final hearing of the Kulbhushan Jadhav case in The Hague. (Reuters/File)

Kulbhushan Jadhav case: And what has Pakistan argued?

Pakistan has asked the ICJ to “dismiss or declare inadmissible” India’s claim. It rejected India’s argument that the military courts don’t have officers with judicial expertise and experience, and said Pakistan’s courts are “extremely independent”.

Pakistan’s Attorney General said, “India seeks relief which they cannot claim from this court.” He assured the ICJ that the process of judicial review in Pakistan was robust and Jadhav can avail it if he chooses.

“The military courts have sufficient proof of espionage and the said military court on the available evidence and the judicial confession proceeded to convict him despite he being given the option of going for a judicial review, he has refused to do so,” the AG told the court.

On India’s claims of consular access, he said: “Surely (it) was not allowed for good reason in terms of the agreement of 2008, specially for the reason that commander Jadhav being involved in espionage.”

How binding are ICJ judgments?

According to ICJ, judgments delivered by the court (or by one of its chambers) in disputes between states are binding upon the parties concerned. Article 94 of the United Nations Charter provides that “each Member of the United Nations undertakes to comply with the decision of [the court] in any case to which it is a party”. Judgments are final and without appeal.

If there is a dispute about the meaning or scope of a judgment, the only possibility is for one of the parties to make a request to the court for an interpretation. In the event of the discovery of a fact hitherto unknown to the court which might be a decisive factor, either party may apply for revision of the judgment.

However, there have been instances when the ICJ’s rulings have not been followed. The most famous one was in 1986, when the ICJ ruled in a petition by Nicaragua, which alleged that the US had waged a covert war against it by supporting a rebellion.

The ICJ ordered reparations from the US in favour of Nicaragua. The US, in response, cancelled its declaration of the ICJ’s jurisdiction. It then went to the UN Security Council against the ICJ order and succeeded.

So, whatever the ICJ decides, both governments will have to be prepared for a long haul.

Kulbhushan Jadhav verdict today: A timeline of the case at The Hague

2016-17

India told ICJ that Kulbhushan Jadhav was “kidnapped from Iran, where he was carrying on business after retiring from the Indian Navy, and was then shown to have been arrested in Baluchistan” on March 3, 2016. Pak informed India only on March 25, 2016. India sought consular access that same day, and repeatedly afterward. On January 23, 2017, Pak requested assistance in an investigation concerning Jadhav. On March 21, 2017, it issued a note verbale saying consular access would be considered in the light of India’s response to its request for assistance in the probe.

May 8, 2017

India began proceedings against Pak “for egregious violations of the Vienna Convention on Consular Relations, 1963” in detaining Jadhav, and in his sentencing to death by a military court. India asked that the death sentence be declared violative of international law and suspended, and that Pak be restrained from giving effect to it and directed to annul the decision — failing which ICJ should declare the conviction and sentencing illegal, and direct Pak to release Jadhav immediately. India also asked for a direction to Pak to not execute Jadhav until the ICJ disposes of the case. Pak must keep the Court informed of its actions, and does nothing to prejudice his or India’s rights with respect to any decision the court might make.

May 9, 2017

President of the Court asked Pak, pending the Court’s decision, “to act in such a way as will enable any order the Court may make… to have its appropriate effects”.

May 15, 2017

In public hearings, India confirmed the measures it had sought; Pak asked the Court to reject request.

May 18, 2017

Court directed Pak to not execute Jadhav till it takes a final view, and to keep it informed; decided that until the decision, “it shall remain seized of the matters which form the subject matter of this Order”.

June 13, 2017

September 13 and December 13 were fixed as the deadlines for India’s Memorial and Pak’s Counter Memorial respectively.

January 17, 2018

April 17 and July 17 fixed as deadlines for India’s Reply and Pak’s Rejoinder respectively.

February 18-21, 2019

India and Pak made two rounds of oral arguments at The Hague.

July 4, 2019

ICJ announced that the President of the Court, Judge Abdulqawi Ahmed Yusuf, will read the Court’s decision at 3pm on July 17.