Arguing that a Pakistan military court’s trial and sentencing of Kulbhushan Jadhav “hopelessly failed” to satisfy due process, India Monday urged the International Court of Justice (ICJ) at The Hague to annul Jadhav’s death sentence and order his immediate release.
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.
Senior advocate Harish Salve, the lawyer representing India and Jadhav in the case at the ICJ, opened the hearing. The top UN court will hear Pakistan’s submissions on Tuesday, followed by counters from both countries on Wednesday and Thursday.
Watch | Harish Salve’s argument on Kulbhushan Jadhav case
India’s demand to nullify the Pakistan military court’s decision indicated a marked shift from its earlier plea, when it had sought consular access to Jadhav in May 2017. Then, New Delhi had asked for “immediate suspension” of the death sentence, ask Pakistan to annul the sentence and if that was not possible, then the ICJ should declare the decision as “illegal” and release Jadhav.
But on Monday, the Indian side forcefully asked the ICJ for “annulment” of Jadhav’s conviction and his release forthwith putting the onus of annulment on the ICJ, and not Pakistan. “India seeks the relief of annulment of Jadhav’s conviction and a direction that he be released forthwith,” said Salve, adding that the “Military Courts of Pakistan cannot command the confidence of this Court and should not be sanctified by a direction to them to review and reconsider the case”. This showed New Delhi’s complete distrust of Pakistan’s military courts.
Salve also submitted that India has established that Pakistan’s conduct in not allowing consular access to Jadhav from the time of his detention up to his conviction and thereafter, is a gross violation of Article 36 of the Vienna Convention. He said that the Indian side gave 13 reminders for consular access, but Pakistan did not respond.
Raising the pitch
India’s opening arguments, days after the attack in Pulwama, marks a significant escalation of its position at a time of heightened tensions with Pakistan. The rejection of the “hopeless failure” of the Pakistani military court, turns the heat on Islamabad. As Pakistan takes the podium on Tuesday, it can be expected to raise its own pitch.
In his three-hour submission, Salve argued that Jadhav’s trial by a Pakistani military court “hopelessly failed” to satisfy even the minimum standards of due process and requested the ICJ to declare it “unlawful”. Pakistan’s conduct does not inspire the trust that Jadhav will get justice in its court, he said.
He also said that the Pakistan Army court was amended to try civilians, staffed by military officials and is influenced by top Army officers.
These Army officers have “no judicial training” and the Pakistan side has not produced a “judgment” by the court, and there is “no evidence” against Jadhav, Salve said, adding that Jadhav’s confessions were “coerced”.
“Pakistani military courts are not independent and the proceedings before them fall far short of national and international fair trial standards. Judges of military courts are military officers who are a part of the executive branch of the State and do not enjoy independence from the military hierarchy. They are not required to have judicial or legal training or even a law degree, and do not enjoy any security of tenure, which are prerequisites of Judicial competence and Independence,” he told the ICJ.
“Pakistan is embarrassed to disclose charges against Jadhav,” Salve said adding that “allegations of torture” are common in these secretly-held Army courts. He also said that Jadhav’s “incommunicado detention” has made a “mockery of safeguards” in the judicial system.
He argued that “Pakistan has not provided any credible evidence,” and that “inhuman detention is a violation of universal rights”. According to Salve, Pakistan did not inform Jadhav of his rights.
He said that Pakistan did not send any details of the probe conducted by the Joint Investigation Team before informing the Indian side of the death sentence handed to him. Jadhav had no lawyer during his trial either, he said.
According to Salve, Pakistan offered to allow Jadhav’s family to visit him, the terms were agreed and the meeting was held on 25 December, 2017. “India was dismayed at the manner the meeting with Jadhav’s family was conducted and wrote a letter on 27 December marking its protest,” he said, saying that it was a “dehumanising attempt” by Pakistan.
Jadhav, a retired Navy officer, was arrested allegedly on March 3, 2016, and India was informed of this on March 25, 2016, when the Pakistan Foreign Secretary raised the matter with the Indian High Commissioner in Islamabad. On that day, India sought consular access to Jadhav at the earliest. New Delhi then moved the ICJ in May in 2017 against the “farcical trial” by the military court of Pakistan against 48-year-old Jadhav. He was sentenced to death on charges of espionage and terrorism in April 2017.
India first approached the ICJ on May 8, 2017, for the “egregious violation” of the provisions of the Vienna Convention on Consular Relations, 1963 by Pakistan by repeatedly denying it consular access to Jadhav. A 10-member bench of the ICJ had restrained Pakistan from executing Jadhav until adjudication of the case.
The ICJ has set a timetable for the public hearing in the high-profile case from February 18 to 21 at the Peace Palace in The Hague, the Netherlands. It is expected that the ICJ’s decision may be delivered by the summer of 2019.