–Amid Indo-Pak tensions after Pulwama attack, both South Asian nations to present arguments in Kulbhushan case before ICJ during Feb 18-21
ISLAMABAD: Pakistan on Saturday submitted its reply in the Kulbhushan Jadhav case to the International Court of Justice (ICJ) before the Monday’s hearing where India will contest the convicted spy’s death row.
Kulbhushan, who India says was kidnapped from Iran, has been sentenced to death by a Pakistani military court. Kulbhushan, 46, was charged convicted of espionage and sentenced to death in April 2017, following which India moved The Hague-based International Court of Justice (ICJ).
A 10-member bench of the ICJ had in May 2017, restrained Pakistan from executing Kulbhushan till adjudication of the case.
Pakistan claims its security forces arrested Kulbhushan from Balochistan on March 3, 2016, after he allegedly “entered Pakistan from Iran”. India, however, maintains that Kulbhushan was kidnapped from Iran where he had business interests after retiring from the Indian Navy.
India’s lawyers will present their arguments on Monday to the top UN court, which was set up after World War II to resolve international disputes. This will be followed by Pakistan’s lawyers presenting their case on Tuesday.
Islamabad reacted to the ICJ’s urgent order to stay Kulbhushan Jadhav’s execution at the time, but said it “has not changed the status” of Kulbhushan Jadhav’s case “in any manner”.
The case comes at a time when the already-strained ties between India and Pakistan took a further plunge following the terror attack in Kashmir’s Pulwama.
More than 44 paramilitary troops were killed as explosives (RDX) packed in a car ripped through a convoy bringing 2,500 soldiers back from leave. The terror attack happened less than 25 kilometres from Srinagar.
The Indian Ministry of External Affairs confirmed that the public hearing of Kulbhushan Jadhav will commence from Monday. However, MEA spokesperson Raveesh Kumar declined to go into the details of it.
WHAT INDIA NEEDS TO ANSWER:
According to sources, Pakistan has submitted six key points which India will need to answer. These include:
- India says Commander Jadhav was an innocent Indian national who was kidnapped from Iran to make him confess to being an Indian RAW agent. Why has India failed to make good this allegation despite repeated requests for evidence that he was kidnapped?
- India says Commander Jadhav retired from the Indian Navy. Why has India failed to explain when/why he retired as he was only 47 years old when arrested?
- India refuses to explain how Commander Jadhav was in possession of an authentic Indian passport issued in a false ‘cover’ Muslim name ‘Hussein Mubarak Patel’ which he had used at least 17 times to enter/exit India. India has been asked this question many times (even by highly respected Indian senior journalists such as Praveen Swami and Karan Thapar) but simply says this is “irrelevant” or “mischievous propaganda”. India eventually said the passport was “clearly a forgery” but refuses to explain this statement, or why a highly credible independent UK expert is wrong when he says it is an authentic Indian passport issued by the Indian authorities. Why not?
- India demands that the ICJ orders the “return” of Commander Jadhav to India. However, the ICJ has repeatedly stated it is not a criminal court of appeal. It has always so far made it clear in all its decisions that, even if consular access was denied, the proper order is for there to be effective review and reconsideration by the local Courts. Commander Jadhav and his family have been able to seek this at any time since 10th April 2017 in accordance with Article 199 of the Constitution of Pakistan. Instead, India launched proceedings in the ICJ 14 months after he was arrested and a month after he was convicted to seek a ‘stay’ order without a hearing. Why is India asking for an order for “return” in the face of the ICJ’s decision and the independent expert evidence confirming Pakistan has effective review and reconsideration before the high court and Supreme Court?
- India has failed to explain why the Agreement on Consular Access between India and Pakistan dated 21 May 2008 (which India drafted), and which provides (at Article (vi)) for either State to be entitled to consider a request for consular access “on its merits” where it involves a person implicated in national security matters, does not apply in this case?
- India fails to explain why highly respected UK-based military law experts are wrong when they say that Pakistan’s high court and Supreme Court provide an effective review and reconsideration of the military court process.
The salient aspects of the case are:
- On 3rd March 2016, Commander Kulbhushan Jadhav was arrested in the Balochistan province of Pakistan, having illegally and clandestinely entered Pakistan from Iranian territory. India has said that Commander Jadhav was “kidnapped” from Iran – but has provided no substantive evidence underpinning such an allegation. Commander Jadhav was carrying an Indian passport in the name of ‘Hussein Mubarak Patel’.
- On 25th March 2016, Pakistan shared with the world at large Commander Jadhav’s confession (confirmed before a Magistrate) as a serving officer of the Indian Navy, who was operating for India’s Research & Analysis Wing (RAW), to having been involved in crimes of espionage and terrorism directed toward the infrastructure and people of Pakistan, including the Gwadar port and various facilities involved in the prominent China-Pakistan Economic Corridor (CPEC). India says that Commander Jadhav retired from the Indian Navy (but has not said when or provided any further detail). From 25th March 2016, India sought consular access to Commander Jadhav, which India says was denied. Pakistan says that an express agreement between India and Pakistan (drafted by India) headed Agreement on Consular Access entered into in 2008, at Article (vi), entitles either State to consider a request for Consular Access upon the merits where it involves a person implicated in National Security matters.
- Pakistan sent a letter making specific requests of India to assist in the investigation of Commander Jadhav on 23 January 2017 attaching copies of the authentic Indian Passport Commander Jadhav was using in the name of ‘Hussein Mubarak Patel’, as well as the FIR and other material relating to the investigation into Commander Jadhav’s activities. India did not provide any assistance at all nor any evidence (either inculpatory or exculpatory) of Commander Jadhav.
- Commander Jadhav was provided with legal representation, and after several hearings, he was tried and convicted by a Military Court in Pakistan, which passed the death sentence on 10th April 2017. Pakistan’s legal system, including its Constitution, provides for the availability of clemency petitions as of right to the Chief of Army Staff and then to the President of Pakistan. In addition, judicial review by Pakistan’s High Court and Supreme Court of the Military Court process and judgment is available pursuant to Article 199 of the Constitution of Pakistan. Pakistan’s Courts have frequently stayed sentences imposed by the Military Court at the request of the convict or his family, often within hours of the sentence being passed. No application of this nature has ever been made to the Pakistani Courts by Commander Jadhav or his family.
- Both India and Pakistan have previously signed and become parties to the Vienna Convention on Consular Relations 1963 (VCCR 1963). Furthermore, both India and Pakistan signed and became parties to a separate agreement (called the Optional Protocol) that gives the ICJ jurisdiction over disputes arising out of the interpretation or application of the VCCR 1963.
PREVIOUS ICJ PROCEEDINGS:
On 8th May 2017, India commenced these proceedings before the ICJ alleging that Pakistan had committed a breach of the VCCR 1963 by failing to grant immediate consular access in respect of Commander Jadhav, and alleging that the Military Court procedure was flagrantly unfair. Centrally, the relief India sought was “at least” the acquittal/release/transfer to India of Commander Jadhav. India also demanded by way of Provisional Measures that the ICJ should immediately make an order (without even having a hearing) that Pakistan should be restrained from executing Commander Jadhav pending the full hearing of India’s claims.
As mentioned above, Pakistan’s civilian courts can and do routinely order a stay of execution pending the full hearing of legal challenges to decisions emanating from Pakistan’s Military Courts – they do so in order to preserve the status quo without making any decision as to the facts or merits. The Pakistani courts have shown themselves capable of acting very quickly (within hours) in this manner in response to an application for a stay of execution. It was therefore not unusual that the ICJ directed a stay of execution on 18th May 2017 pending a full hearing.
Pakistan raised the following arguments on 15th May 2017:
- Pakistan raises important arguments of international law that have never been raised or considered before, such as the existence in Customary International Law (as evidenced by the practices of States) of an ‘espionage exception’ to consular access (given the obvious dangers of allowing a state-sponsored spy/terrorist untrammelled communication with the authorities of his sending State that despatched him to commit unlawful acts);
- Furthermore, Pakistan has drawn attention to a bilateral agreement concerning consular access as between India and Pakistan entered into in 2008 that clearly qualifies consular access in matters of national security;
- Significantly, Pakistan has asked the ICJ to consider whether India has acted illegally (with the consequence that it should not be granted relief) in facilitating Commander Jadhav’s espionage/terrorism by providing him with the passport referred to above;
- The passport was carefully examined by a UK-based highly regarded independent expert whose detailed report concludes it is an authentic passport issued by the competent Indian authorities in a false identity (“the Passport Issue”). India refuses to explain the Passport Issue and, instead, describes this as “irrelevant” or “mischievous propaganda”;
- Also, two eminent independent experts (formerly senior officers of the British Army) carried out a review of the Military Court jurisdictions of several major countries around the world (including the USA, UK, India and Pakistan), and found that Pakistan’s own Military Court jurisdiction was sound in law and contained no manifest unfairness. They concluded that the High Court and Supreme Court of Pakistan provided an effective review process for the Military Court system.
- On the previous occasions when the ICJ has considered the issue of death penalty / consular access, the ICJ has never ordered relief of “acquittal, release and return” such as that sought by India. The ICJ has repeatedly stated that it is not a Criminal Court of Appeal. Effective review of a conviction is available before the domestic Courts.
- Despite having been on notice of Pakistan’s key arguments since the Provisional Measures phase, India insisted on a further round of pleadings. The ICJ granted permission, and India filed its Reply on 17th April 2018, to which Pakistan filed a detailed Rejoinder in response on 17th July 2018.
The conduct modalities of the hearing are as under:
- The ICJ has set a timetable for public hearings to be held on February 18-21 2019 in The Hague (which will be live-streamed, including on the UN TV website).
- India will go first, on 18th Feb 2019 (10:00-13:00 local time), then Pakistan will make submissions on 19th Feb 2019 (10:00-13:00 local time). India will reply on 20th Feb 2019 (15:00-16:30 local time). Pakistan will make its closing submissions on 21st Feb 2019 (16:30-18:00 local time).
- It is expected that the ICJ decision may be held by the summer of 2019.
- In accordance with the Rules of Court, all pleadings should be made available after the commencement of the hearing at 18 Feb 2019 (10:00 local time) on ICJ’s website.
- Pakistan’s arguments are summarised in its Counter-Memorial (at paragraphs 6-21) and its Rejoinder (at paragraphs 1-10). The experts’ reports referred to above are at Annexes 141 and 142 to the Counter-Memorial.
- The legal arguments for the Government of Pakistan will be presented by English Queen’s Counsel Khawar Qureshi QC who also drafted the written pleadings. The delegation will be led by the attorney general of Pakistan. It is understood that India’s arguments will be presented by Mr Harish Salve.