Under the shadow of the Pulwama terror attack, in which a suicide bomber killed at least 40 CRPF personnel, the tussle between India and Pakistan shifted to the International Court of Justice over the Kulbhushan Jadhav case. Asserting that Jadhav’s trial by a Pakistan Army court failed to satisfy “even the minimum standards of due process”, India sought the annulment of the verdict awarding death sentence to the former Navy officer and his release from custody.
Making the first round of arguments in the four-day public hearing, ex-solicitor general Harish Salve, representing India, urged the UN top court to declare the continued custody of Jadhav without consular access “unlawful” as per the Vienna Convention, saying that Pakistan’s “story” was based on rhetoric rather than facts.
“Jadhav’s continued custody without consular access should be declared unlawful. Jadhav’s trial by a Pakistani military court hopelessly failed to satisfy even the minimum standards of due process,” Salve told the 15-judge court.
Salve further said Pakistan was using Jadhav, who was arrested in Baluchistan in 2016 on charges of espionage and sentenced to death by a military court, as a propaganda tool. The UN court had stayed Jadhav’s execution in May 2017 after it was approached by India.
“No credible evidence was provided by Pakistan to show his involvement in any act of terrorism. Pakistan is using this as a propaganda tool. Pakistan used the confession document as propaganda. Pakistan has disrespected the Vienna Convention,” Salve said.
Salve told the International Court of Justice that India had sent 13 reminders to Pakistan for consular access to Jadhav but had received no positive response from the neighbouring country.
“In April 2016, an FIR was registered against Jadhav. In May 2016, Jadhav was interrogated and India sent reminders for consular access across May, June, and July,” Salve said. While India maintains that Jadhav was kidnapped from Iran, where he had business interests after retiring from the Navy, Pakistan has accused him of espionage.
Accusing Pakistan of flouting the Vienna Convention, which ensures the facility of consular access to foreign nationals who have been put on trial in a foreign country, Salve said Pakistan did not inform Jadhav of his rights nor did it inform India about his arrest.
“Article 36 of the Vienna Convention says that a country must be informed about the detention of its citizens but Pakistan did not inform India about his arrest. Without consular access, India has no information on what happened to Kulbhushan Jadhav in Pakistan,” he said.
Salve said that the ICJ has already upheld the importance of consular access under Article 36 in two previous cases – LaGrand (Germany vs US) and Avena (Mexico vs US). “India and Pakistan have a bilateral agreement on consular access. Bilateral treaties cannot modify Article 36 of Vienna Convention. It could only supplement it,” he said.
“This quite plainly is an egregious violation of Pakistan’s obligations under Article 36 of the Vienna Convention. They at one point said they might consider it if India assisted their investigation into him being an Indian spy, asked for evidence of bank accounts, phone numbers, etc,” Salve said.
Pakistan will present its case on February 19 and both countries will make the second round of oral arguments on February 20 and 21 respectively.