This is what went wrong for Pakistan at Hague

Revisiting Yadhav’s case and Pakistan’s legal options with ICJ

Pakistan hurriedly aired in the opening session of court proceedings (at preliminary arguments stage) the time frame work of execution of Mr Yadhav, without giving the details of hierarchy of right of appeal in Pakistan

The fate of Kulbhushan Yadav, the captive spy who has become a household name in Pakistan in recent months, hangs in the balance. Since the news of his arrest that came in March last year, surfacing of confession and finally death sentence awarded by a military court in April, things have remained in a state of flux. Recently, the beginning of a new chapter in Yadhav saga unfolded in a land far-far-away.

On 8 May 2017, India instituted proceedings against Pakistan in the International Court of Justice (ICJ), accruing the latter of ‘’egregious violation of Vienna Convention on Consular Relations’’ in the case of Indian national Mr Kulbhushan Sudhir Jadhav. Mr Yadhav was arrested from Baluchistan on 3 March 2016. On 18 May 2017 the International Court of Justice (ICJ) stayed the execution of Indian national Yadhav, who has been sentenced to death by the Pakistani military court on the charge of ’spying’. India was represented by senior advocate Harish Salve and Mr Khawar Qureshi QC a UK based lawyer was representing Pakistan before the ICJ in the Jadhav case.

The International Court of Justice (ICJ) indicated to Pakistan that it must “take all measures as its disposal” to ensure that Mr Kulbhushan Sudhir Jadhav, of India nationality, is not executed pending a final judgment of the court in the case.

In its order indicating provisional measures, which was adopted unanimously, the Court also stated that the government of Pakistan shall inform it of all measures taken in implementation of that Order. It further decided to remain seised of the matters which form the subject of the Order until it has rendered its final judgment. In the view of the Court ,this is sufficient to establish that it has prima facie jurisdiction under Article 1 of the Optional Protocol .The Court further observed that the existence of a 2008 bilateral agreement between the parties on consular relation does not change its conclusion on jurisdiction.

The Indians application sought the following four reliefs as claim from ICJ, by invoking jurisdiction under Article 36 Para 1 of the statue of the court, by virtue of the operation of Article 1 of the Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes of 24 April 1963 along with request for the indication of provisional measures, pursuant to Article 41 of the Statute of the Court, explaining that the alleged violation of the Vienna Convention by Pakistan “has prevented India from exercising its rights under the Convention and has deprived the Indian national from the protection accorded under the Convention.

1. Immediate suspension of the sentence of death awarded to the accused
2. Restitution in interregnum by declaring that the sentence of the military court arrived at, in brazen defiance of the Vienna Convention rights under Article 36, Elementary Human Rights ICCPR and International Law.
3. Restraining Pakistan from giving effect to the sentence awarded by the military court and directing it to take steps to annul the decision of the military court as may be available to it under the law in Pakistan.
4. If Pakistan is unable to annul the decision ,then this court to declare the decision illegal being violative of international law and treaty rights and restrain Pakistan from acting in violation of the Vienna Convention and international law by giving effect to sentence or the conviction in any manner and directing it to release the convicted Indian National forthwith.
5. The ICJ has appreciated the arguments advanced by the Indian lawyer on the point of that the link exist between the right claimed by India and the provisional measures being sought under Article 36 ,para 1 of the Vienna Convention.

The Court further observed that whether there is a risk of irreparable prejudice and urgency .It considers that the mere fact that Mr Jadhav is under a death sentence and might therefore be executed is sufficient to demonstrate the existence of a risk of irreparable prejudice to the rights claimed by India.

The court further observed that Pakistan has indicated that any execution of Mr Jadhav would probably not take place before the month of August 2017.This means that there is a risk that an execution could take place at any moment thereafter, before the Court has given its final decision in the case .The Court has also noted that Pakistan has given no assurance that Mr Jadhav will not be executed before the court has rendered its final decision. The court then has assumed that there is urgency in the present case. The court has not mentioned in its judgment specifically about the consular access and communication to Commander Yadhav.

Mere reading of the judgment reflects that Pakistan entered in this war without any preparation and legal tools .The lawyer took less time to conclude his arguments and has lost more than 45 precious minutes in ICJ, which is itself making a world record. More importantly, Pakistan has not availed procedural benefits of nominating an ad hoc judge in the panel of ICJ.

Unfortunately, Pakistan hurriedly aired in the opening session of court proceedings (at preliminary arguments stage) the time frame work of execution of Mr Yadhav, without giving the details of hierarchy of right of appeal in Pakistan, as provided in the military court/laws and inter alia other existing provisions of domestic laws related to appeals in such cases. The legal team of Pakistan could not build this famous narrative before ICJ relating to the status of Mr Yadhav — first as enemy of state and second as spy of enemy state and thirdly that he is involved in waging of war against Pakistan in the light of his confessional statements. In our arguments before ICJ, we have also missed to link Mr Yadhav’s presence in Baluchistan, collaborating the statements and threats of Indian national security advisors to Pakistan on print and electronic media before the arrest of Commander Yadhav from Baluchistan .Where he said that India had planned to disintegrate Baluchistan from Pakistan. He further disclosed that Indian had planned to create unrest in other provinces of Pakistan as well. He had also openly discussed the waging of war strategy of India against Pakistan in Baluchistan as the pilot project. These points can exclude the ICJ jurisdiction, and Pakistan can exceptionally perform well to convince ICJ that Pakistan is in war like situation and Commander Yadhav’s activities in Baluchistan are integral part of Indian conspiracy to attempt war or abetting waging of war against Pakistan.

Anyhow, it’s an interesting situation for both Pakistan and India in ICJ. With reference to other regional disputes between Pakistan and India, the jurisdiction of ICJ will play a very vital role. Since India has assumed the jurisdiction of ICJ, now in future Pakistan has great opportunity to pitch on all regional disputes with India in ICJ.

However, under domestic laws ( section 83 and 84 of CPC and 121, 121-A and 122 of PPC ) and apex court judgments( PLD 1966 Karachi (WP) 161) (PLD 1969 SC 37) (PLD 2015 SC 401),Pakistan has a very comprehensive legal framework to address the Yadhav case in ICJ. The international community can easily sense the Indians aggression in south Asia in global perspective. The Indian government has lost its credibility regionally, diplomatically and politically as regional head of South Asia.

The interim order/provisional order of ICJ against Pakistan has not harmed this case on merit. Now Pakistan has to list outstanding lawyers who are conversant with military laws and international laws. In this case, Indian relief in the main application against military court can severely damage the whole working and credibility of military courts. In case the ICJ decides this case on merit and dissenting views come on the military courts, then the convictions and pending trails in these courts can be questioned at international forums also. This is the most appropriate time and opportunity for Pakistan to explain to ICJ the Indian conspiracy against Pakistan. Simultaneously, we should document our sacrifices, efforts and struggle for regional peace .More over the services of the army, police and other para military forces and our socio- economic and legal position on combating terrorism.

This column was co-authored by Muhammad Majid Bashir and Shah Nawaz Mohal