The Hague: India and Pakistan today crossed swords at the International Court of Justice (ICJ) over Kulbhushan Jadhav’s case with New Delhi demanding the immediate suspension of his death sentence and Islamabad accusing it of using the world body as a stage for “political theatre” through a “misconceived” plea.
The two neighbours — who last faced off at the ICJ 18 years ago when Islamabad sought its intervention over the shooting down of its naval aircraft — India took the Jadhav case to the world court, accusing Pakistan of violating the Vienna Convention and conducting a “farcical trial” for convicting Jadhav without a “shred of evidence”.
After hearing the arguments of the two sides, the court said it will issue its order on India’s request for provisional measures “as soon as possible”.
“The date on which this order will be delivered at a public sitting will be duly communicated to the parties,” the court said.
India demanded the immediate suspension of Jadhav’s death sentence, expressing fears that Pakistan could execute him even before the hearing at the ICJ was over.
India made a forceful submission as the ICJ began hearing the case of the 46-year-old former Navy officer who was arrested on March 3 last year and sentenced to death by a Pakistani military court on charges of espionage and subversive activities.
“Jadhav has not got the right to get proper legal assistance and the right to consular access. There is an immediate threat to him to be executed even before a decision is passed,” joint secretary in the Ministry of External Affairs Deepak Mittal told the court in his opening remarks.
Representing India, lead attorney Harish Salve said, “The execution of the death sentence cannot be done while this court is hearing the appeal. Else, it will be a violation of the Vienna Convention.”
Following India’s arguments, Pakistan, in its submission before the the UN’s highest judicial body, said India’s application on Jadhav, who was sentenced to death by a Pakistani military court on charges of espionage and subversive activities, was “unnecessary and misconceived” and must be dismissed.
India has seen it fit to use the International Court of Justice as a stage for “political theatre” but “we will not respond in kind”, Mohammad Faisal of the Pakistan Foreign Office said in his opening remarks in response to India’s submissions earlier in the day.
The ICJ also denied permission to Pakistan to play a purported “confessional” video of Jadhav at the public hearing here.
Representing Pakistan, lawyer Khawar Qureshi said India has sought to persuade this court that Pakistan intends to execute Jadhav within days.
“Simply by referring to the clemency process available as a right to commander Jadhav. A period of 150 days is provided for in this regard which even if started on April 10, 2017, which is the date of conviction at first instance, could extend to well beyond August 2017.
“There is also of course the potential for the writ petition of the High Court to be invoked as we believe India must be well aware,” he said.
Earlier, Salve said Pakistan had denied India its 16 requests for consular
“The graver the charges, the greater the need for continued adherence of the Vienna Convention. Jadhav has been in judicial custody without any communication with his family,” he said.
The rights of Article 36 of the Vienna Convention on Consular Relations are sacrosanct, Salve said, citing the International Covenant on Civil and Political Rights (ICCPR) that recognises that no one can be arbitrarily deprived of their lives.
India had not been given the copy of the charges filed against Jadhav, Salve said.
“The need for a wholesome compliance is greater when charges are serious. We want appropriate legal representation for Kulbhushan Jadhav,” he said.
Not just had all requests for consular access fallen on “deaf ears”, the trial was conducted without providing Jadhav his rights. Pakistan did not even respond to Jadhav’s mother’s pleas to see her son.
Human rights treated as “basics” all over had been thrown to the wind by Pakistan and the trial had been vitiated, India argued.
Though Pakistan says Jadhav has the right to appeal, two-star generals will hear his mercy plea, Salve stressed, questioning the impartiality of the process.
India asserted that it wants the ICJ to annul Jadhav’s death sentence and for Pakistan to ensure that no action is taken that may prejudice the rights of India or of Jadhav.
On India invoking the Vienna Convention, Qureshi said, “The Vienna convention article 36 which adopted to set up standards of conduct particularly concerning communications and contact with nationals of the sending state which would contribute to the development of the friendly relations among nations…the observation we made immediately is this is unlikely to apply in the context of a spy, terrorist send by a state to engage in acts of terror.”
Jadhav, the latest flashpoint in the tensions between Pakistan and India, was sentenced last month. On May 8, India moved the ICJ against the death penalty, alleging violation of the Vienna Convention on Consular Relations. On May 9, the highest court in the UN gave Jadhav a lease of life.
India, in its appeal to the ICJ, had asserted that Jadhav was kidnapped from Iran where he was involved in business activities after retiring from the Indian Navy. However, it denies that he has any connection with the government.
Pakistan claims to have arrested Jadhav from its restive Balochistan province.