Calling India’s demand for Kulbhushan Jadhav’s immediate release from custody “outlandish”, Pakistan on Tuesday urged the International Court of Justice (ICJ) at The Hague to dismiss India’s application as inadmissible. Pakistan labelled Jadhav an “instrument of India’s official policy of terror” and accused him of carrying out subversive activities in the country under the “guiding hand of National Security Adviser Ajit Doval”.
“India’s application should be declared inadmissible by reason of India’s conduct in this context of manifesting abuse of rights, lack of good faith, illegality and misrepresentation. This case is not about consular access. It is a platform for political theatre, a platform for India to engage in rhetoric,” Queen’s counsel Khawar Qureshi, representing Pakistan, said.
The four-day trial began Monday at the ICJ headquarters amidst heightened tensions between India and Pakistan in the wake of the Pulwama terror attack in Jammu and Kashmir, which killed 40 CRPF personnel.
In the first round of submissions, senior advocate Harish Salve, representing India, urged the ICJ to annul Jadhav’s death sentence and order his immediate release.
Jadhav was arrested in Baluchistan in 2016 on charges of espionage and sentenced to death by a Pakistan military court. The UN court had stayed Jadhav’s execution in May 2017 after it was approached by India.
In his more than three-hour submission, Qureshi repeatedly harped on two facts — on the fake passport used by Jadhav and proof of his nationality. Qureshi said India was required to prove Jadhav’s nationality in order to get him diplomatic protection.
“India has failed to explain why Jadhav was allowed to travel for 17 times on fake passport. India never established that Jadhav is an Indian national. The burden of proof has shifted to India to prove or disprove the passport issue,” he said.
Mentioning that Jadhav had confessed that he was a serving officer due to retire in 2022, Qureshi said India’s submissions were shamelessly devoid of substantive argument.
“When did Jadhav retire and at what age? What evidence is there that Jadhav retired from the Armed Forces? Why was he is possession of an authentic Indian passport with a cover name? It is a pity that India attempts to block the truth every time,” he said.
Rebutting Salve, Qureshi said there was no general practice accepted as the law to provide consular access in cases of espionage. On Monday, Salve had argued that Pakistan did not uphold Article 36 of the Vienna Convention, which states consular access applies all nationals, regardless of espionage claims.
“Developments in customary international law is not consistent with India’s position on Article 36 of Vienna Convention on consular relations. There is a confession by Jadhav before a judicial magistrate. He was also convicted under Section 3 of the Official Secrets Act for terrorist activities in 2014. India has glossed over these matters,” Qureshi said.
He also said that the allegation that Jadhav is a spy is proven. “Why choose someone sitting nine hours away from Pakistan in Chhabahar and kidnap him and force him to give a confession,” Qureshi said.
Beginning Pakistan’s arguments, Anwar Mansoor Khan, Attorney General for Pakistan, said since 1947, India had pursued a policy of destroying the neighbouring country. “Indian Prime Minister Narendra Modi is on record to have said using water as a weapon against Pakistan. In its petition, India seeks relief for a terrorist,” he said.
Earlier in the day, the International Court of Justice refused to entertain Pakistan’s request to adjourn the hearing in the case of Kulbhushan Jadhav to appoint a new ad-hoc judge. Pakistan, which is presenting its case today, asked the judge to adjourn the case, citing the illness of it ad-hoc judge. Tassaduq Hussain Jillani, the ad-hoc judge for Pakistan in the ICJ suffered a cardiac attack ahead of the hearing.
The top UN court will hear counters from both countries on Wednesday and Thursday.