Hot Off The PressNews

International Court of Justice at Hague, will be delivering its Judgment in the Kulbhushan Jadhav Case today, i.e. 17-07-2019. A public sitting will take place at 3 p.m. (6.30 pm IST) at the Peace Palace in The Hague, during which Judge Abdulqawi Ahmed Yusuf, President of the Court, will read the Court’s decision.

“Kulbhushan Sudhir Jadhav, a retired Navy officer, was captured by Pakistani Military from Iran in the Year 2016 and further sentenced to death”

After a 4 day public hearing in the Kulbhushan Jadhav case that happened between 18-02-2019 to 21-02-2019, the Judgment in this high-profile case is to be pronounced after almost 4 months of wait.

During the hearing that took place in the month of February, the submissions of both India and Pakistan were filed and heard through a live hearing of the Jadhav Case, in which Harish Salve represented Jadhav and Mr Khawar Qureshi was the counsel from Pakistan.

Snippets from the 4-day hearing:

  • “Kulbhushan Jadhav has become a pawn and a convenient tool for Pakistan to try and unsuccessfully divert global attention from its own conduct.”
    -Senior Advocate Harish Salve
  • India’s Application should be declared inadmissible by reason of India’s conduct in this context manifesting abuse of rights, lack of good faith, illegality, lack of clean hand and misrepresentations.
  • Conduct of India as aforesaid militates against the grant of any relief in any event.
  • VCCR is not engaged as India has not established that Commander Jadhav is an Indian National, nor was consular access refused prior to the commencement of these proceedings.
  • “India’s hands are sullied” -Mr Khawar Qureshi
  • India’s conduct cannot go unchecked. This is the court of the international community, not fantasy not fiction.

Let’s have a look at the history of proceedings that took place in the Jadhav Case —

Background:

On 8 May 2017, India filed an Application instituting proceedings against Pakistan “for egregious violations of the Vienna Convention on Consular Relations, 1963” in the matter of the detention and trial of an Indian national, Mr. Kulbhushan Sudhir Jadhav, sentenced to death by a military court in Pakistan.

India contended that it had not been informed of Mr. Jadhav’s detention until long after his arrest and that Pakistan had failed to inform the accused of his rights. It further alleged that, in violation of the Vienna Convention, the authorities of Pakistan had denied India its right of consular access to Mr. Jadhav, despite its repeated requests. The Applicant also pointed out that it had learned about the death sentence against Mr. Jadhav from a press release.

In its Application, India sought the following reliefs:

(1) Relief by way of immediate suspension of the sentence of death awarded to the accused;

(2) A relief by way of 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, particularly Article 36, paragraph 1 (b), and in defiance of elementary human rights of an accused which were also to be given effect as mandated under Article 14 of the 1966 International Covenant on Civil and Political Rights, was violative of international law and the provisions of the Vienna Convention; and

(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 was 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 the sentence or the conviction in any manner and directing it to release the convicted Indian national forthwith. ”

As basis for the Court’s jurisdiction, the Applicant invoked Article 36, paragraph 1, of the Statute of the Court, by virtue of the operation of Article I of the Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes of 24 April 1963.

On 8 May 2017, India also filed a request for the indication of provisional measures, pursuant to Article 41 of the Statute of the Court. It was explained in that Request that the alleged violation of the Vienna Convention by Pakistan had “prevented India from exercising its rights under the Convention and has deprived the Indian national of the protection accorded under the Convention”.

Applicant maintained that “Mr. Jadhav would be subjected to execution unless the Court indicates provisional measures directing the Government of Pakistan to take all measures necessary to ensure that he is not executed until the Court’s decision on the merits” of the case. India pointed out that Mr. Jadhav’s execution “would cause irreparable prejudice to the rights claimed by India ”.
India, therefore, requested that, “pending final judgment, in this case, the Court indicated:

(a) That the Government of the Islamic Republic of Pakistan take all measures necessary to ensure that Mr. Kulbhushan Sudhir Jadhav is not executed;

(b) That the Government of the Islamic Republic of Pakistan report to the Court the action it has taken in pursuance of sub-paragraph (a); and

(c) That the Government of the Islamic Republic of Pakistan ensure that no action is taken that might prejudice the rights of the Republic of India or Mr. Kulbhushan Sudhir Jadhav with respect of any decision the Court may render on the merits of the case”.

India, which referred to “the extreme gravity and immediacy of the threat that authorities in Pakistan would execute an Indian citizen in violation of obligations Pakistan owed to it”, further requested that the President of the Court, “exercising his power under Article 74, paragraph 4, of the Rules of the Court, pending the meeting of the Court … direct the parties to act in such a way as will enable any Order the Court may make on the Request for provisional measures to have its appropriate effects”.

On 9 May 2017, the President of the Court, acting in accordance with the powers conferred upon him by Article 74, paragraph 4, of the Rules of Court, addressed an urgent communication to both parties, calling upon Pakistan, pending the Court’s decision on the request for the indication of provisional measures, “to act in such a way as will enable any order the Court may make on this request to have its appropriate effects”.

The public hearings on the request for the indication of provisional measures presented by India were held on 15 May 2017.

At the close of those hearings, India confirmed the terms of the provisional measures it had requested the Court to indicate, while the Agent of Pakistan, for his part, asked the Court to reject the request for the indication of provisional measures presented by India.

On 18 May 2017, the Court delivered its Order, the operative part of which reads as follows:

“For these reasons, The Court,
I. Unanimously,

Indicates the following provisional measures:
Pakistan shall take all measures at its disposal to ensure that Mr. Jadhav is not executed pending the final decision in these proceedings and shall inform the Court of all the measures taken in implementation of the present Order.

II. Unanimously,
Decides that, until the Court has given its final decision, it shall remain seised of the matters which form the subject-matter of this Order.”

The Court was composed as follows: President Abraham; Judges Owada, Cançado Trindade, Xue, Donoghue, Gaja, Sebutinde, Bhandari, Robinson, Crawford, Gevorgian; Registrar Couvreur.

By an Order dated 13 June 2017, the President of the Court fixed 13 September 2017 and 13 December 2017 as the respective time-limits for the filing of a Memorial by India and a Counter-Memorial by Pakistan. These pleadings were filed within the time-limit thus fixed.

By an Order dated 17 January 2018, the Court authorized the submission of a Reply by India and a Rejoinder by Pakistan. It fixed 17 April 2018 and 17 July 2018 as the respective time-limits for the filing of these written pleadings. The pleadings were filed within the time-limits thus fixed.


Our take on the verdict that is to be pronounced:

ICJ Bench would possibly ask Islamabad to allow consular access to the accused and restrain the country from carrying out the death sentence.

Today’s decision will be very significant for both the member states.

What’s next for Jadhav?

Stay Tuned for the Updates!


Further Reading:

Hot Off The PressNews

After 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, the verdict of International Court of Justice would be pronounced soon on 17-07-2019.

“According to the Press Release by ICJ, The International Court of Justice (ICJ), the principal judicial organ of the United Nations, will deliver, on Wednesday 17 July 2019, its Judgment in the Jadhav case (India v. Pakistan).

A public sitting will take place at 3 p.m. at the Peace Palace in The Hague, during which Judge Abdulqawi Ahmed Yusuf, President of the Court, will read the Court’s decision.”

Earlier, before the four day-public hearing of the case, International Court of Justice at the Hague pronounced it’s verdict in favour of India. It said that the conditions required to indicate provisional measures are met, hence, it is appropriate to order that Pakistan should ensure that Kulbhushan Jadhav is not executed pending the final decision. The provisional order under Article 41(1) has a binding obligation.

India had, on 08-05-2017, initiated the proceedings before ICJ against the execution of the death sentence imposed upon an Indian National Kulbhushan Jadhav, alleging that Pakistan kidnapped Kulbhushan Jadhav from Iran, where he was carrying on business after retiring from the Indian Navy, and was then shown to have been arrested in Baluchistan on 3 March 2016. On 09-05-2017, Judge Ronny Abraham, President of the ICJ  stayed the execution of Kulbhushan Jadhav under Article 74, paragraph 4, of the Rules of Court. Harish Salve and Khawar Qureshi represented India and Pakistan, respectively.


Further Reading:

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

In yesterday’s hearing, India presented its arguments before the International Court of Justice (ICJ). The public hearings started from Monday 18 and will be continued till 21-02-2019.

Schedule for the hearings

First round of oral arguments-

Monday 18 February 10 a.m.-1 p.m.   : India
Tuesday 19 February 10 a.m.-1 p.m.: Pakistan

Second round of oral arguments-

Wednesday 20 February 3 p.m.-4.30 p.m.: India
Thursday 21 February 4.30 p.m.-6 p.m.: Pakistan

Snippets from Yesterday’s Hearing:

  • 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 a 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.

 

 

 

 

 


Image Courtesy: ICJ


LIVE UPDATES [India v. Pakistan]: Pakistan’s oral arguments begins:

  • Oral arguments by Pakistan’s Attorney General Anwar Mansoor Khan.
  • Since 1947, India has continuously tried destroying Pakistan.
  • “On humanitarian grounds, Pakistan allowed Jadhav’s family to visit him. I challenge India to quote a similar example.”
  • Mr Khawar Qureshi representing Pakistan starts with his oral arguments.
  • Developments in customary international law not consistent with India’s position on Article 36 of Vienna Convention on Consular Relations.
  • Blatant misrepresentations in the pleadings by India.
  • Qureshi in an electronic presentation places the issues it will present its arguments.
  • He states that “Why was Jadhav in possession of an authentic Indian passport with a Muslim cover name.”
  • What evidence is there that Jadhav retired from the Armed Forces?
  • ICJ President interrupts in between and asks Mr Qureshi to kindly slow down.
  • India’s conduct is far from irrelevant.
  • India failed to provide any explanation as to how it is that Commander Jadhav was able to travel frequently to and from India using an authentic Indian passport bearing a false identity in a Muslim name.
  • Evidence of how Jadhav was an Indian National?
  • India’s hands are sullied.
  • Passport was authenticated by expert David Westgate. Used at least on 17 occasions by Jadhav.
  • “We gave every single opportunity to India to correct/clarify/apologize, but it arrogantly dismissed.”
  • ICJ President again interrupts and asks Qureshi to slow down as the judges are not able to follow.
  • Qureshi on claims that Jadhav was not well when his family visited him stated in regard to Deputy High Commissioner J.P. Singh’s letter that: “I wish him well for his future as a fantasy fiction writer.”
  • Court adjourned for a 15-minute break.
  • Mr Qureshi starts with his arguments after the break.
  • At no stage can India say that Pakistan engaged in any clear and unequivocal representation made directly to India, to the effect that India waived the requirement for India to establish the Indian nationality of Commander Jadhav.
  • At no point, India has established (even now) that commander Jadhav is an Indian National.
  • No general practice accepted as law (opinio juris) by States to provide consular access in cases of espionage.
  • India has used flowery and topsy turvy language in its pleadings.
  • Did India demand any negotiation or mediation? NO
  • What does India have to say for that passport?
  • Why didn’t India raise a dispute back in 2016? Why did it come directly to the ICJ for provisional measures?
  • India stated that Pre-Mediated murder was supposed to take place.
  • India’s MEA Official stated that India and Pakistan have a bilateral agreement (vis consular access).
  • India’s claim for “at least” acquittal, release, and return is outlandish.
  • India shamelessly misrepresented the conclusion of the Joint Report of the distinguished Military Law Experts and extremely late in the day (shamelessly and without apology) sought to deflect criticism by saying a “typo” was involved in one respect.
  • India simply fails to answer questions.
  • Reference to Narendra Modi’s purported claim that rapists will be hanged within days quoted by Qureshi.
  • India invokes the decisions of the IACHR in a completely irrelevant and misleading manner.
  • “Why does India wants Pakistan to be treated differently?”
  • In any event, effective review and reconsideration has always been available to Commander Jadhav and his family.
  • India’s Application should be declared inadmissible by reason of India’s conduct in this context manifesting abuse of rights, lack of good faith, illegality, lack of clean hand and misrepresentations.
  • Conduct of India as aforesaid militates against the grant of any relief in any event.
  • VCCR is not engaged as India has not established that Commander Jadhav is an Indian National, nor was consular access refused prior to the commencement of these proceedings.
  • Customary International law provided for an exception to consular access in the case of an individual reasonably suspected of espionage.
  • India’s claim for “at least”, “acquittal, release or return”/annulment of the conviction is at best misconceived, at worst made in bad faith in the light of the Court’s previous decisions consistently rejecting such a claim.
  • India has not made any other relief, thus its application should be dismissed.

Sitting is now adjourned for the day. 

Parties will now respond to the oral arguments for the next two days of the hearing.