Hot Off The PressNews

As the old lawyers’ saying goes, “When you are strong on the law, you hammer the law, if you are strong on the facts, you hammer the facts, and when you have neither on your side, you hammer the table”. Bereft of a case, Pakistan has hammered the proverbial table.

Succinct of India’s Final round of arguments: [20-02-2019]

“Indian nationals are not the kind whose nationality needs to be denied, unlike Pakistan.”

Pakistan invites the Court to treat as true the confession made by Mr Jadhav to the military and in that the very first assertion is that he is an Indian national and an officer of the RAW. If Pakistan so closely, dearly and fully believes his confession, why do they doubt his nationality?”

“India’s criticism of the system of military courts trying civilians generally, and of the manner in which the military courts have functioned, has been documented by the International Commission of Jurists, the Human Rights Committee and even in a resolution of the European Parliament.”

“Experts find that military courts are generally confined to service personnel. It is known that there are some military courts — Pakistan is one, and unfortunately not the sole example — in which military courts have jurisdiction to try civilians.”

“One of the reasons why India seeks Mr. Jadhav’s release, apart from showing propaganda, is that he has become a pawn and a convenient tool for Pakistan to try and unsuccessfully divert global attention from its own conduct.”

When we talk of review, I would draw the attention of the Court in stark contrast, in the Kasab case where the Supreme Court of India, dealing with an application filed by a Pakistani terrorist, apprehended red-handed and caught by a brave police officer who absorbed on himself a magazine of bullets on his person, the Supreme Court held that “We may also state here that since it is a case of death sentence, we intend to examine the materials on record first hand, in accordance with the time-honoured practice of this Court, and come to our own conclusions on all issues of facts and law, unbound by the findings of the trial court and the High Court.” This is called “review”.

There has been an egregious violation of the Vienna Convention.


LIVE UPDATES:

  • Khawar Qureshi starts presenting the final round of oral arguments.
  • Characters from wonderland have no place in this Court.
  • I challenge India to identify any discrepancy, states Qureshi.
  • India persists to distract and deflect attention to answer critical questions.
  • India’s double standards parades itself.
  • Why is it, again and again, necessary to involve in fiction.
  • Is the approach of India as it suggests really to “hammer the facts”?
  • India’s conduct cannot go unchecked. This is the court of the international community, not fantasy not fiction.
  • India appears to have closed its eyes as well as mind, given that clear and express reference to the judgment of Peshawar High Court was made.
  • Pakistan understands chronology.
  • It’s simply wrong to disparage the military courts of Pakistan.
  • Pakistan was expecting India to show some respect to the Court, if not Pakistan, and if not the independent experts. That has not happened.
  • India’s claim for relief remains as far fetched now as it was then.
  • India’s conduct is in a manner to disregard the truth.
  • India’s claim for relief must be dismissed, Qureshi ends his arguments.
  • Pakistan has a very robust system for review or reconsideration, says the agent of Pakistan.
  • Mention of Afzal Guru case along with Pulwama incident and Samjhauta express in concluding remarks of Pakistan’s Agent.
  • Agent accuses India of committing human rights violations by using pellet guns in Kashmir.
  • Consular access was denied for good reasons, says agent of Pakistan.
  • End of week-long oral arguments.
  • Court retires for deliberation. Agents will be informed when the judgment would be delivered.
Hot Off The PressNews

As reported by PTI, a four-day public hearing in the case of Kulbhushan Jadhav, a Retired Indian Navy officer sentenced to death by a Pakistani military court on charges of espionage would begin today.

ICJ has set a timetable for the public hearing in the high-profile case from 18-02-2019 to 21-02-2019 at the Peace Palace in The Hague, the Netherlands. India will argue first on February 18, Pakistan will get its chance to make submissions on February 19. Then India will reply on February 20 while Islamabad will make its closing submissions on February 21.

It is expected that the ICJ’s decision may be delivered by the summer of 2019.

Please refer the link for the background of the case: Kulbhushan Jadhav Case

[Source: PTI]


Live Updates: [First Day of Hearing] [India v. Pakistan]

  • Harish Salve is representing India and Kulbhushan Jadhav.
  • Kulbhushan Jadhav in respect to the facts was not made aware of his consular access.
  • Harish Salve: there are only two broad issues in the Kulbhushan Jadhav case. The first issue relates to the construction of Article 36 of the Vienna Convention. The second issue relates to relief.
  • It is an egregious violation of the Vienna Convention.
  • Jadhav’s purported confession clearly appears to be coaxed. India reminded Pakistan that it’s Pakistan government which hasn’t ratified SAARC convention on legal assistance in criminal matters.
  • Salve: ICJ has already upheld the importance of consular access under Article 36.
  • Article 36 facet of the due process.
  •  Article 36 of the Vienna Convention cannot be modified by Bilateral treaties, could only supplement it.
  • Article 36 becomes a vital cog in the wheel of justice.
  • Pakistan should’ve provided a substantial explanation for why it needed 3 months for providing consular access, upon which it could’ve claimed that it has complied with the treaty obligation. Even on the erroneous premise that para 4 applies, Pakistan hasn’t complied treaty obligations.
  • Article 73(2) of the Vienna Convention will apply in the present case. Article 30 of the said convention does not override Article 73(2).
  • Break of 10 minutes.
  • The hearing resumes after the break.
  • Salve: Article 36 has been recognized as a rubric for human rights.
  • Trial by military court fails to satisfy even minimum standards of due process and should be declared “unlawful”.
  • Salve states that: “Disrespectful allegations against India”. Cases cited by Pakistan have no relevance in the present case.
  • Despite repeated attempts by India to sign a treaty for mutual legal assistance, Pakistan has refused. The reason is that there are several pending cases that involve terrorism.
  • Pakistan has always been offered consular access even when its citizens have been caught red-handed in acts of terrorism.
  • “Proceedings in Pakistani military courts fall far short of international standards. In the 2 years military courts have been allowed to convict civilians, 161 civilians have been given death sentence in an opaque manner.” 90% of convictions are based on confessions and the reasons are not made public.
  • Military proceedings are kept totally secretive, due to which detainees are bound to torture.
  • I would invite this court to keep in mind the relief to be granted in the backdrop of the fact that his trial has been conducted by a military court, states Salve.
  • “Pakistan has knowingly, willfully and brazenly violated Article 36 of the Vienna Conventions in respect of Kulbhushan Jadhav Case. Therefore, consequences may follow.”
  • Pakistan’s conduct doesn’t confirms that Jadhav would receive justice in Pakistan.
  • De-humanizing behaviour towards Jadhav’s family.
  • A resolution was passed by Lahore Bar Association threatening anyone who would dare appear for Jadhav in Pakistan courts. Bar Association also criticised ICJ’s grant of provisional measures
  • Pakistan has acted illegally, Salve.
  • Pakistan used Jadhav to build a narrative against India.
  • Kulbhushan Jadhav case used as propaganda by Pakistan.
  • Salve emphasizes: Review and reconsideration of the case would be inadequate. The relief should be in the form of a direction to set Jadhav free.
  • India: It has established that not allowing consular access is gross violation of Article 36 of the Vienna Convention by Pakistan.
  • In the present case, relief of review & re-consideration would be highly inadequate, considering facts & circumstances.
  • India seeks annulment of Jadhav’s conviction and a direction that he be released.

Pakistan’s round of arguments to begin tomorrow. [19-02-2019]

Stay tuned for tomorrow’s hearing.

 

Case BriefsInternational Courts

International Court of Justice ( ICJ): On 13 June 2016, Equatorial Guinea instituted proceedings against France in ICJ with regard to a dispute concerning the immunity from criminal jurisdiction of the Vice-President of the Republic of Equatorial Guinea, Mr Teodoro Nguema Obiang Mangue, and the legal status of the building which “houses the Embassy of Equatorial Guinea”, located at 42 Avenue Foch in Paris. Equatorial Guinea sought to find the Court’s jurisdiction, first, on Article 35 of the United Nations Convention against Transnational Organized Crime (“Palermo Convention”) and, second, on Article I of the Optional Protocol to the Vienna Convention on Diplomatic Relations concerning the Compulsory Settlement of Disputes (“Optional Protocol to the Vienna Convention”). France raised preliminary objections to the jurisdiction of the Court.

Mr Teodoro was fined and convicted for the offences like money laundering and misappropriation of public funds of his country of origin and investing it in France by a French Tribunal. As it was found on investigation that the building at 42 Avenue Foch was bought by him in pursuance of these offences, it was ordered to be attached. However, Equatorial Guinea claimed that the building to be part of its Diplomatic Mission in France. The attachment and his term were suspended after the Equatorial Guinea approached ICJ in this regard.

The Court observed that Equatorial Guinea’s claims based on principles of sovereign equality and non-intervention in the domestic affairs of other States (Article 4 of the Palermo Convention) were not valid as the Court considered that the said Article does not refer to the customary international rules, including State immunity, that is derived from sovereign equality but refers to the principle of sovereign equality itself. The Court gave the expression “sovereign equality” its ordinary meaning while observing that none of the provisions of the Palermo Convention relates expressly to the immunities of States and State officials. Further, it found this unrelated to the object and purpose of the Convention, set out in Article 1. Therefore, the Court concluded that the aspect of the dispute relating to the immunity of the Vice-President and the building from measures of constraint as State property did not concern the interpretation or application of the Palermo Convention and hence, Court lacked jurisdiction in relation to this aspect.

The Court rejected Equatorial Guinea’s claims based on the Palermo Convention concerning France’s alleged overextension of its criminal jurisdiction over predicate offences associated with the crime of money laundering.

Finally, Court noted that the Parties disagreed on the question whether the building constituted part of the premises of the Mission and was thus entitled to the treatment afforded for such premises under Article 22 of the Vienna Convention. Court found that this aspect of the dispute fell within the Vienna Convention and, consequently, it had jurisdiction under the Optional Protocol to the Vienna Convention to adjudge this aspect. [Immunities and Criminal Proceedings, Republic of Equatorial Guinea v. French Republic, No. 163, decided on 06-06-2018]

Appointments & TransfersNews

International Court of Justice: Japanese international law professor Yuji Iwasawa was elected a Judge of the International Court of Justice, the UN’s principal judicial body on 22.6.2018. He filled the vacancy left by 85-year-old Hisashi Owada who retired on June 7. He won the votes of 184 countries of the 193 member nations in the UN General Assembly, and the support of all 15 member countries on the UN Security Council. He will serve the remainder of his predecessor’s nine-year term, which runs until 5.2.2021.
Iwasawa is currently a professor of international law at the University of Tokyo graduate school, and most recently served as chairperson of the UN Human Rights Committee. In addition to chairing the UN Human Rights Committee, he served as President of the Japanese Society of International Law, Vice-Chair of the London-based International Law Association, and as Judge and Vice-President of the Asian Development Bank Administrative Tribunal in Manila, Philippines. Iwasawa’s publications include “Domestic Application of International Law,” “Dispute Settlement in the WTO” and “Third Parties Before International Tribunals: The ICJ and the WTO.”

[Source: today.law.harvard.edu]

International CourtsNews

International Court of Justice (ICJ): The ICJ will hold public hearings devoted to Preliminary Objections raised by the United States in the case concerning Certain Iranian Assets [Islamic Republic of Iran (Iran) v. United States of America (USA)], from 8 to 12 October 2018, at the Peace Palace in The Hague, the seat of the Court.

Iran instituted proceedings on 14 June 2016 against the USA before ICJ with regard to a dispute concerning violations by the USA of the Treaty of Amity, Economic Relations, and Consular Rights between them. It was signed in Tehran on 15 August 1955 and entered into force on 16 June 1957” (hereinafter “the 1955 Treaty”). The 1955 Treaty was signed with the then regime of the Shah long before he was ousted in the 1979 Islamic Revolution. But the US severed bilateral diplomatic ties with Iran in 1979 after 52 Americans were taken hostage in the US embassy in Tehran. They have not yet been fully restored.

The case was filed just weeks after the US Supreme Court ruled in April 2016 that $2 billion in frozen Iranian assets should be paid to about 1,000 survivors and relatives of those killed in attacks blamed on Iran. These attacks included the 1983 bombing of a US Marine barracks in Beirut and the 1996 Khobar Towers bombing in Saudi Arabia. According to Iran, US courts have awarded total damages of over $56 billion against it in respect of its alleged involvement in various terrorist acts mainly outside the US.

[Source: The New Indian Express]