Case BriefsInternational Courts

International Court of Justice (ICJ), Hague, Netherlands: A 16-Member Bench comprising of President Yusuf; Vice-President Xue; Judges Tomka, Abraham, Bennouna ,Cancado Trindade, Donoghue, Gaja, Sebutinde, Bhandari, Robinson, Crawford, Gevorgian, Salam, Iwasawa; Judge ad hoc Jillani; pronounced the long-awaited verdict of a four day hearing in the Kulbhushan Jadhav Case unanimously with 1 dissenting opinion of the ad hoc Judge Gillani.

The present high-profile case, involving great significance for the Member States, India and Pakistan both, was carried on with keeping in mind the following facts:

Individual named Kulbhushan Sudhir Jadhav has been in the custody of Pakistani authorities. The circumstances of his apprehension remain in dispute between the Parties. According to India, Jadhav was kidnapped from Iran, where he was residing and carrying out business activities after his retirement from the Indian Navy. He was subsequently transferred to Pakistan and detained for interrogation. Pakistan contends that Jadhav, whom it accuses of performing acts of espionage and terrorism on behalf of India, was arrested in Balochistan near the border with Iran after illegally entering Pakistani territory. Pakistan explains that, at the moment of his arrest, Jadhav was in possession of an Indian passport bearing the name “Hussein Mubarak Patel”. India denies these allegations.

India filed an application for the institution of the proceedings on 08-05-2017 against Pakistan on grounds of the alleged violation of the Vienna Convention on Consular Relations by Pakistan pertaining to Kulbhushan Jadhav’s detention and his trial. Jadhav was accused of performing acts of espionage and terrorism on behalf of India and further sentenced to death by a Military Court of Pakistan in 2017. Therefore, India contended that Pakistan breached Article 36 of Vienna Convention:

  • By not informing India, without delay, of the detention of Jadhav;
  • By not informing Jadhav of his rights under Article 36;
  • By denying consular officers of India access to Jadhav

On 18-05-2017, Court indicated 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.”

Further, Public Hearings of the said case were held from 18-02-2019 to 21-02-2019, in which India was represented by Deepak Mittal and Harish Salve, while Anwar Mansoor Khan, Khawar Qureshi presented arguments on behalf of Pakistan.

Claims made by India are as follows:

  • Relief by way of immediate suspension of death sentence
  • Relief by way of restitution in integrum by declaring the sentence of the military court arrived at, in brazen defiance of Vienna Convention rights under Article 36
  • Restrain and annul the decision of the Military Court of Pakistan
  • If Pakistan fails to annul its decision, then ICJ to declare it illegal and violative of International Law.

The objections placed by Pakistan in regard to the admissibility of India’s application are based on the following:

  • Abuse of process
  • Abuse of rights
  • Unlawful conduct

Court’s Analysis of the facts and contentions placed

ICJ notes that, Pakistan placed contentions in regard to the applicability of certain provisions of the Vienna Convention.

  • Pakistan argued that Article 36 of Vienna Convention does not apply in “prima facie cases of espionage”.
  • Customary International Law governs cases of espionage in consular relations and allows States to make an exception to provisions on consular access contained in Article 36.
  • Pakistan maintains that it is the 2008 Agreement on Consular Access between India and Pakistan rather than Article 36 of the Vienna Convention, which regulates consular access in the present case.

To all the above-stated contentions, Court concluded that the Convention is applicable in the present case, regardless of the allegations that Mr Jadhav was engaged in espionage activities.

Court infers that Pakistan did not inform Jadhav of his rights under Article 36, paragraph 1 (b), of the Vienna Convention, and thus concludes that Pakistan breached its obligation under that provision. In the Court’s view, there is no basis under the Vienna Convention for a State to condition the fulfillment of its obligations under Article 36 on the other State’s compliance with other international law obligations.

Therefore, the Court unanimously decided:

  • Application of the Republic of India is admissible.

Further, by a majority of fifteen votes to one, it was decided:

  • By not informing Jadhav without delay of his rights under Article 36, paragraph 1 (b), of the Vienna Convention on Consular Relations, Pakistan breached the obligations incumbent upon it under that provision.
  • India was deprived of the right to render the assistance provided for by the Vienna Convention to the individual concerned; Pakistan breached the obligations incumbent upon it under Article 36, paragraph 1 (b), of Vienna Convention on Consular Relations.
  • Pakistan deprived India the right to communicate with and have access to Jadhav to visit him in detention and arrange legal representation.
  • Pakistan is under obligation to inform Jadhav without delay regarding his rights to provide India consular officers access to him in accordance with Article 36 of VCCR.
  • Effective review and reconsideration of the conviction and sentence of Jadhav.[India v. Pakistan, General List No. 168, decided on 17-07-2019]

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

Ministry of Home Affairs has issued orders to suspend the LoC trade in Jammu & Kashmir w.e.f 19-04-2019. This action has been taken as the Government of India has been receiving reports that the Cross LoC trade routes are being misused by the Pakistan based elements for funneling illegal weapons, narcotics and fake currency, etc.

It may be recalled that the LoC trade is meant to facilitate the exchange of goods of common use between local populations across the LoC in Jammu & Kashmir. The trade is allowed through two Trade Facilitation Centres located at Salamabad, Uri, District Baramulla and Chakkan-da-Bagh, District Poonch. The trade takes place four days a week. Trade is based on the Barter system and zero duty basis.

However, reports have been received that the LoC trade is being misused on a very large scale. It has been revealed that the trade has changed its character to mostly third party trade and products from other regions, including foreign countries, are finding their way through this route. Unscrupulous and anti-national elements are using the route as a conduit for Hawala money, drugs and weapons, under the garb of this trade.

During the ongoing investigations of certain cases by NIA, it has been brought out that a significant number of trading concerns engaged in LoC trade are being operated by persons closely associated with banned terrorist organizations involved in fuelling terrorism/separatism. Investigations have further revealed that some individuals, who have crossed over to Pakistan and joined militant organizations have opened trading firms in Pakistan. These trading firms are under the control of militant organizations and are engaged in LoC trade.

After the Pulwama incident, the Government of India has withdrawn the MFN status to Pakistan. Inputs have also been received that in order to evade the consequent higher duty, LoC trade is likely to be misused to a much larger extent.

It has, therefore, been decided by the Government of India to suspend the LoC trade at Salamabad and Chakkan-da-Bagh in Jammu and Kashmir with immediate effect. Meanwhile, a stricter regulatory & enforcement mechanism is being worked out and will be put in place in consultation with various agencies. The issue of reopening of LoC trade will be revisited thereafter.


[Dated: 18-04-2019]

Ministry of Home Affairs

Hot Off The PressNews

Recently, Ministry of External Affairs (MEA) had in its press release stated that “Pakistan demarched on the act of aggression against India”.

“India also strongly objected to Pakistan’s vulgar display of an injured personnel of the Indian Air Force in violation of all norms of International Humanitarian Law and the Geneva Convention. It was made clear that Pakistan would be well advised to ensure that no harm comes to the Indian defence personnel in its custody. India also expects his immediate and safe return.”

This article aims to breaking down the understanding of the term “Prisoner of War” and its relation to the “Third Geneva Convention”.

International Humanitarian Law (IHL) also protects other persons deprived of liberty as a result of armed conflict.

Third Geneva Convention provides a wide range of protection for prisoners of war. Rules protecting prisoners of war (PoWs) are specific and were first detailed in the 1929 Geneva Convention. They were refined in the third 1949 Geneva Convention, following the lessons of World War II, as well as in Additional Protocol I of 1977.

POWs cannot be prosecuted for taking a direct part in hostilities.  Their detention is not a form of punishment, but only aims to prevent further participation in the conflict. They must be released and repatriated without delay after the end of hostilities. The detaining power may prosecute them for possible war crimes, but not for acts of violence that are lawful under IHL.

POWs must be treated humanely in all circumstances. They are protected against any act of violence, as well as against intimidation, insults, and public curiosity. IHL also defines minimum conditions of detention covering such issues as accommodation, food, clothing, hygiene and medical care.

The discussions on the Geneva Convention in respect of how a PoW is to be treated speeded through the social media platforms like plague, which mainly includes:

A total number of  143 Articles whereas the 1929 Convention had only 97.

Article 4 | Prisoners of war

Persons belonging to one of the following categories, who have fallen into the power of the enemy:

(1) Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfils the following conditions:

(a) that of being commanded by a person responsible for his subordinates ;

(b) that of having a fixed distinctive sign recognizable at a distance;

(c) that of carrying arms openly;

(d) that of conducting their operations in accordance with the laws and customs of war.

(3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

(4) Person who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.

(5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.

(6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

B. The following shall likewise be treated as prisoners of war under the present Convention:

(1) Persons belonging, or having belonged, to the armed forces of the occupied country, if the occupying Power considers it necessary by reason of such allegiance to intern them, even though it has originally liberated them while hostilities were going on outside the territory it occupies, in particular where such persons have made an unsuccessful attempt to rejoin the armed forces to which they belong and which are engaged in combat, or where they jail to comply with a summons made to them with a view to internment.

(2) The persons belonging to one of the categories enumerated in the present Article, who have been received by neutral or non-belligerent Powers on their territory and whom these Powers are required to intern under international law, without prejudice to any more favourable treatment which these Powers may choose to give and with the exception of Articles 8, 10, 15, 30, fifth paragraph, 58-67, 92, 126 and, where diplomatic relations exist between the Parties to the conflict and the neutral or non-belligerent Power concerned, those Articles concerning the Protecting Power. Where such diplomatic relations exist, the Parties to a conflict on whom these persons depend shall be allowed to perform towards them the functions of a Protecting Power as provided in the present Convention, without prejudice to the junctions which these Parties normally exercise in conformity with diplomatic and consular usage and treaties.

C. This Article shall in no way affect the status of medical personnel and chaplains as provided for in Article 33 of the present Convention.

Article 118 of the 1949 third Geneva Convention | Release and repatriation

 “Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities” and “unjustifiable delay in the repatriation of prisoners of war or civilians” is a grave breach of the Protocol.

Once PoW status is awarded to a combatant, he may be interned without any particular procedure or reason. The purpose of this internment is not to punish them but only to hinder their direct participation in hostilities.

Article 13 | Humane treatment of prisoners

Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention.

Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity. Measures of reprisal against prisoners of war are prohibited.

Article 14 | Respect for the person of prisoners

  • ‘Respect for the physical person of the prisoner ‘
  • ‘Respect for the moral person of the prisoner ‘
  • ‘The prisoner’s honour ‘

Therefore, the above explainer of the Geneva Convention in respect of the relevant Articles under the present circumstance of India’s IAF Pilot’s release in a clear and detailed manner puts the picture in place rightly, that Pakistan’s move of releasing our Wing Commander was in consonance to the Third Geneva Convention, and as stated by Pakistan’s PM Imran Khan in the parliament that the “release” was a “peace gesture”, India would want to speculate more on that.

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

“India’s hands are sullied”

                                                  -Mr Khawar Qureshi (Representing Pakistan)

In the Kulbhushan Jadhav Case, ICJ will begin the hearing for the second round of oral arguments today, i.e. 20-02-2019. India will be placing its arguments before the Court today and tomorrow Pakistan will.

Pakistan in its arguments placed before the ICJ in yesterday’s hearing (19-02-2019) stated that:

“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.”

“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.”

Stay tuned for the Live Updates.


 

 

 

 

Image Credits: Indian Express


LIVE UPDATES: India v. Pakistan [India to begins with the second round of oral arguments]

“Government of India requests this court to adjudge and declare that Pakistan acted in egregious breach of Article 36 of Vienna Convention”, Stated Deepak Mittal (Govt. of India’s Agent) 

  • Harish Salve starts with oral arguments.
  • As old lawyer saying goes ‘When you are strong on the law you hammer the law, when you are strong on facts you hammer the facts and when you are strong on neither you hammer the table’.Berefet of a case, Pakistan has hammered the proverbial table.
  • Pakistan has mischaracterized India’s reading of the report on Military Courts as an attempt to mislead the Court.
  • Pakistan’s comments deriding Lahore High Court Bar Association yesterday are regrettable.
  • Harish Salve on Pakistan Counsel’s arguments: A criticism of a sovereign state of the case made out of the other state must be in language consistent with the dignity of other states. Humpty Dumpty has no place in this Court.
  • India never suggested estoppel.  At least we keep reminding ourselves that we are in an International Court, not Commercial Court.
  • Pakistan did not question Jadhav’s nationality when 13 reminders were sent from India.
  • “Indian nationals are not the kind whose nationality needs to be denied.”
  • Biodata mentions that Jadhav was a former Indian Navy officer. This would be proof of his Indian nationality. Indian nationals are not the kind whose nationality needs to be denied.
  • Salve mentions the Mumbai Attack in 2008.
  • “If Jadhav had been involved in subversive activities, irrespective of whether or not he had an Indian passport, he would have been tried for espionage.”
  • “Pakistan has nothing beyond a confession and Passport.” [Pakistan has nothing beyond the extracted confession on which Mr. Jadhav has been convicted of participation in the subversive activities. Possessing a passport does not make you party to offences. Your role in those offences is what gets you a conviction. Not having a passport which would enable you to sneak into a country, as you mean there was such a passport.
  • India has repeatedly asked for a copy of the judgment convicting Jadhav and charges against.
  • “Pakistan claims to have clinching evidence on the basis of articles in the Indian press.”
  • Supreme Court of Pakistan has suppressed operation of Peshawar High Court cited by Pakistan. On one hand, Pakistan is challenging that judgment in Supreme Court, on the other, it is citing it in ICJ, Salve.
  • Kasab’s case cited by Salve in regard to “review.” When we talk of review, I’d like to draw your attention in stark contrast in the Kasab case. where the Supreme Court in India held that since it is a case of death sentence we may examine the materials on record first hand. This is called a review.
  • Pulwama Terror Attack mentioned by Harish Salve in line of other terror attacks by Pakistan. [Kulbhushan Jadhav has become a pawn in Pakistan tool to divert international scrutiny from itself, Salve says. The Indian counsel then refers to the terror attack in Pulwama on February 14 that killed at least 40 CRPF personnel. [United Sates has even called upon Pakistan “to end immediately the support and safe haven provided to all terrorist groups operating on its soil, whose only goal is to sow chaos, violence and terror in the region.]
  • There was a time when Pakistan was respected but not anymore.
  • Jadhav’s trial was completed in 4-6 months. What happened to the 150 people killed in the Mumbai terror attacks?
  • “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.”
  • “The time has come for this Court to make Article 36 a potent weapon for the protection of human rights.”
  • Salve ends his arguments.
  • India’s agent Deepak Mittal placed the relief being sought by India before ICJ.
  • President Abdulqawi Ahmed Yusuf speaking on appointment for ad-hoc Judge for Pakistan.
  • ICJ President Abdulqawi Ahmed Yusuf then refers to Pakistan’s request to replace ad-hoc Pakistani judge Tassaduq Hussain Jillani, who had suffered a cardiac arrest on the first day of hearings. “Judge ad-hoc Gilani was given case files and participated in all court deliberations before these hearings,” he says. “He will receive all transcripts of oral proceedings. He will continue to participate.”
  • Sitting Adjourned.

Pakistan will present its final round of arguments tomorrow, i.e. 21-02-2019.

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.

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.

 

Hot Off The PressNews

As reported by Dawn, Syeda Tahira Safdar J., nominated as the first female Chief Justice of Pakistan High Court, for the High Court of Balochistan.

Mohammad Noor Muskanzai CJ., who will be retiring on 31-08-2018 to be replaced by Syeda Tahira Safdar J., by being the first female Chief Justice of High Court in Pakistan.

She worked as presiding officer in a labour court and was appointed member of the Balochistan Services Tribunal (BST). She later served as chairperson of the BST till her elevation as additional judge of the High Court in 2009 and was later confirmed in 2011.

[Source: Dawn]