A day after the International Court of Justice at The Hague, acting on an Indian petition, asked the Pakistan government to put on hold the execution of Kulbhushan Jadhav, Sartaj Aziz, Pakistan Prime Minister’s advisor on foreign affairs, said they were “analysing” the Indian petition and the “ICJ’s authority” in the case. Pakistan Prime Minister Nawaz Sharif and Army chief General Qamar Javed Bajwa also discussed the ICJ letter seeking to delay the execution of the retired Indian Navy officer who was convicted of espionage charges by a Pakistan military court.
During the meeting, which lasted around 90 minutes, Sharif was briefed on the “latest situation” regarding Jadhav’s case, the Geo News reported. Responding to queries on the ICJ letter, Sartaj Aziz said: “We are analysing the Indian petition and the ICJ’s authority in this case.” New Delhi responded by saying that India had taken the decision after “careful deliberation” to save the life and ensure justice to a “son of India” — a phrase used by External Affairs minister Sushma Swaraj after Jadhav’s sentencing was announced.
Gopal Baglay, spokesperson for the Ministry of External Affairs, said the issue of jurisdiction is for the ICJ to decide, and cannot be decided by anyone else. Pakistan Defence Minister Khawaja Muhammad Asif accused India of using Jadhav’s conviction to “divert” attention from its “state-sponsored” terrorism in the country. “Indian letter to ICJ attempt to divert attention from state sponsored terrorism in Pakistan. Kulbhushan convicted of offences against national security,” Asif tweeted.
In an order late Tuesday night, ICJ president Ronny Abraham had written to the Pakistan government: “In my capacity as President of the court, and exercising the powers conferred upon me under Article 74, paragraph 4 of the Rules of Court, I call upon your excellency’s government, pending the court’s decision on the request for the indication of provisional measures, to act in such a way as will enable any order the Court may make on this request to have its appropriate effects.” The MEA spokesperson refused to go into more details, saying he cannot disclose “privileged communication” between the ICJ and Pakistan.
“Jurisdiction issue is not for me to decide. It is for ICJ to decide, they have admitted application and initiated action. I would again refer you to article 74 and 73 which enjoin action on the President of ICJ forthwith. Jurisdiction is a matter of any court. Like in any national or country court, if the first challenge is jurisdiction, then the court will consider it. It is within the competence of the court. Not within my or your competence to pronounce ourselves on the jurisdiction,” the MEA spokesperson said.
Articles 73 and 74 come under “incidental proceedings” of the Rule of ICJ, which deals with “interim protection”.
Article 73 says a written request for the indication of provisional measures may be made by a party at any time during the course of the proceedings in the case in connection with which the request is made. And the request shall specify the reasons thereof, the possible consequences if it is not granted, and the measures requested. A certified copy shall forthwith be transmitted by the Registrar to the other party.
Article 74 says that a request for the indication of provisional measures shall have priority over all other cases. The Court, if it is not sitting when the request is made, shall be convened forthwith for the purpose of proceeding to a decision on the request as a matter of urgency. The Court, or the President if the Court is not sitting, shall fix a date for a hearing which will afford the parties an opportunity of being represented at it. The Court shall receive and take into account any observations that may be presented to it before the closure of the oral proceedings.
“Pending the meeting of the Court, the President may call upon the parties to act in such a way as will enable any order the Court may make on the request for provisional measures to have its appropriate effects,” paragraph 4 of Article 74 says, and this is the part invoked by the Indian side, in Jadhav’s case, which was cited by Sushma Swaraj Tuesdaynight.
Explaining India’s decision to approach the ICJ, Baglay said pointed out that Jadhav is in illegal detention in Pakistan and his life is under threat. He said that India had made 16 requests for consular access to Jadhav but there was no response from Pakistan on the demand. Islamabad has also not responded to India’s request for papers — chargesheet, court documents, evidence etc relating to Jadhav’s case.
There is also no information on the status of appeal by Jadhav’s family against the order of a Pakistan military court which sentenced him to death on charges of “spying”. Baglay said that Swaraj had written to Sartaj Aziz on April 27, requesting visa for Jadhav’s family.
“So, in this situation where life of an Indian who was kidnapped and is in illegal detention and was not given a fair trial and about whose well-being our concern persist, what we have done is approach ICJ in these circumstances. This is for a consular matter,” he said. — With PTI from Islamabad