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Tuesday Jul 16 2019

India unlikely to get what it wants from ICJ in spy Jadhav case: law experts

LONDON: The Indian government is unlikely to get relief from the International Court of Justice (ICJ) on it’s three main demands - at least acquittal, release and return of the captured spy Commander Kulbhushan Jadhav, international law experts familiar with the case have told Geo News. 

On Wednesday 17th July 2019 at 3pm Hague time, the ICJ will, at a public rehearing, read out and hand down its judgement in the case which has captured the attention of millions of people. The case of Jadhav has been a major point of contention between the South Asian nations after Pakistani security forces captured Commander Jadhav while he was carrying out his secret mission inside Pakistan of sabotage and terror.

A careful look at the case skeleton of Pakistan and India shows that India has demanded that the ICJ ‘at least’ order the acquittal, release and return to India of Commander Jadhav.

In its written and oral arguments presented by English Barrister Khawar Qureshi QC, Pakistan contented that the ICJ should grant no relief to India and in the alternative, also pointed the availability of effective review by the Pakistani high courts or the military courts of Pakistan as provided by Article 199 of the Constitution of Pakistan, coupled with access to a lawyer in accordance with article 10 of the constitution.

A legal expert, who has represented cases at the ICJ said on condition of anonymity that Barrister Qureshi QC had correctly told the ICJ that at no stage since this convention on 10th April 2017 has Commander Jadhav or any member of his family or any other party sought to invoke the review jurisdiction of the Pakistani High Court, nor have they ever made any request for consular access for this purpose.

The Jadhav case was brought by India against Pakistan under the Vienna Convention on Consular Relations 1963 (article 36 (1) (b)). India alleged that Pakistan has committed a breach of the VCCR 1963 by failing to grant immediate consular access in respect of commander Jadhav on 25th march 2016 and alleging that the military court procedure for espionage on 10th April 2017 was flagrantly unfair.

On 18th May 2017, the ICJ ordered provisional measure to preserve the status quo without any finding on the merits.

Following the filing of written pleadings and evidence on the merits of the case by both India and Pakistan, a hearing was held before the ICJ from 18th-21st February 2019. Pakistan’s legal submission was presented by English Barrister Khawar Qureshi QC while India’s legal submissions were presented by Indian counsel Harish Slave SA.

India argued that Commander Jadhav is an innocent businessman who was kidnapped from Iran, brought to Pakistan, and tortured to confess that he was a commander in Indian navy working with Indian Research & Analysis Wing (RAW) – India’s primary intelligence agency. India argued that it was entitled to obtain consulate access to Commander Jadhav as soon as detention was made public by Pakistan on 25th March 2016. India argued that the trial and conviction of Jadhav for espionage and terrorism offences by a Military Court on 10th April 2017 was a farce.

India contended that the denial of consular access requires the ICJ to at least order the acquittal, release and return to India of the Commander Jadhav.

Pakistan rejected all of the Indian assertions. The international law expert told Geo News that Pakistan forcefully pointed to evidence obtained from Jadhav after his arrest and during the criminal process leading to his conviction as amply demonstrating his activities in fomenting terrorism and engaging in espionage within Pakistan. The expert said that Pakistan maintained it would be compatible with international law for someone sent as a spy/terrorist by a state to be afforded less to officials of that state, as India asserted.

Pakistan also pointed to an express agreement on consular access dated 21st May 2008 between India and Pakistan which allows each state to consider a request of consular access on its merits in a case involving national security.

The law expert said that India had no answer – and didn’t contradict - to Pakistan’s case that Jadhav was provided with an authentic Indian passport in a cover Muslims name of Hussein Mubarak Patel by the Indian authorities – a clear and obvious link between his conduct and the govt of India. The expert said that such conduct is a blatant violation of international law should bar any claim for relief from a court.

During the ICJ proceedings, India refused to reply on this issue and unconvincingly described it as mischievous propaganda. The passport had been examined by a former UK chief immigration officer who had trained the Indian authorities. The passport has been used at least 17 times to enter and exit India.

In addition Pakistan pointed out that in all of the ICJ's previous decisions concerning Article 36 of the Vienna connection on Consular Relations 1963 the court made it clear that it was not a sort of criminal appeal and the presence of effective review and reconsideration by domestic courts was an appropriate remedy, even if a breach of the right to consular access had been established, the high court and SC of Pak provide such review as confirmed by leading UK based law experts.