Kulbhushan Jadhav trial in Pakistan unlawful, India tells ICJ
India on Monday made a case at ICJ for the release of Kulbhushan Jadhav, a former naval officer sentenced to death by a Pakistani military court, assailing Pakistan for convicting him in “farcical” proceedings that violated his rights under the Vienna Convention.Updated: Feb 18, 2019 23:01 IST
India on Monday made a case at the International Court of Justice (ICJ) for the release of Kulbhushan Jadhav, a former naval officer sentenced to death by a Pakistani military court, assailing Pakistan for convicting him in “farcical” proceedings that violated his rights under the Vienna Convention.
Representing India at the ICJ at The Hague, senior advocate Harish Salve argued Jadhav’s conviction in a secret trial must be set aside as Pakistan never made the charges or the judgment public, nor granted consular access to Jadhav in line with the Vienna Convention on Consular Relations.
Jadhav, 48, was sentenced to death by a Pakistani military court in April 2017 after being charged with alleged involvement in espionage and subversive activities. Pakistani officials said he was arrested in Balochistan in March 2016. India denied these charges and accused Pakistani operatives of kidnapping Jadhav from the Iranian port of Chabahar, where he was running a business.
The final hearing of Jadhav’s case at the United Nations’s highest court is being held against the backdrop of rising tensions between India and Pakistan over the terror attack in Pulwama last week that killed 40 troops.
After Pakistan-based Jaish-e-Mohammed claimed it was behind the attack, New Delhi demanded that Islamabad crack down on all terror groups operating from its soil.
The tensions were reflected in the Indian team’s refusal to shake hands with the Pakistani delegation at the start of proceedings.
As the Pakistani officials extended their hands, they were greeted with a namaste from the Indian side.
The hearing follows India’s petition which said Pakistan deliberately denied numerous requests for consular access to Jadhav despite being under an international obligation to do so. This amounted to a violation of the Vienna Convention, Salve argued.
The ICJ stayed Jadhav’s execution in a unanimous order in May 2017, and India and Pakistan submitted several “memorials” or written pleadings last year.
Addressing a bench of 15 judges, Salve said Jadhav’s conviction was based on a “farcical” trial and the judgment must be set aside, and his custody declared illegal.
Attacking the Pakistani defence that consular access between India and Pakistan depends on a 2008 bilateral agreement, Salve said, “This treaty doesn’t subvert Article 36 of the Vienna Convention on Consular Relations, as it is a multilateral treaty, and the 2008 treaty is irrelevant in the case at hand.”
Salve further argued Pakistan’s contention that consular access can be denied in cases involving security and espionage issues is wrong. “The exception of espionage cannot be taken for denying rights under the Vienna Convention. Moreover, states [that have signed the convention] did not want the Vienna Convention to be hostage to allegations of espionage and charges of espionage and terrorism cannot jettison Article 36 on consular access,” he said.
“Recent instances of arrests by China and Russia and the conduct of states have been in compliance with Article 36” and this shows consular access cannot be denied to an individual and a state, Salve added.
During the hearing that lasted three hours, the Indian side lambasted the procedure followed by military courts in Pakistan. Relying on a report on the state of military courts, Salve said, “In the last few years, army courts in Pakistan have convicted 274 civilians, including children, of which 161 have been given death penalty. And almost 90% of the convictions are based on confessional statements.”
Concluding his first round of arguments, Salve said, “Pakistani courts do not inspire confidence and we believe Jadhav will not get justice in Pakistan. Review and reconsideration of the case will be inadequate and India seeks annulment of Jadhav’s conviction and his release.”
Pakistan will present its first round of oral arguments on Tuesday. This will be followed by the second round of oral arguments, first by India on February 20 and then by Pakistan the next day. The ICJ is expected to give its ruling after several months.