ISLAMABAD: The International Court of Justice (ICJ) is set to announce its verdict in the Indian spy Kulbushan Jadhav case on July 17.
Jadhav was arrested on March 3, 2016, from Balochistan on allegations of espionage and terrorism.
In his subsequent trial at the military court, Jadhav confessed to his involvement in terrorist plots. The army chief on April 10, 2017, had endorsed the death penalty for Jadhav after he confessed to his involvement in terrorist plots. However, the International Court of Justice ordered a stay in his execution.
In June 2017, the Indian spy filed a mercy petition against the death penalty in which he confessed to his involvement in espionage and terrorism plots.
It’s going to be for the first time that a 16-judge bench of ICJ, led by a Muslim judge Justice Abdulqawi Ahmed Yusuf, would decide whether consular access should be given to the spy or not.
Former chief justice Tassaduq Hussain Jilani is also an ad hoc judge in this case. India’s Dalveer Bhandari, who is a permanent judge, is also a member of the bench.
In five cases, the ICJ gave consular access to the applicable state but it’s the first case, wherein the ICJ will determine whether or not the spy should be given consular access.
Barrister Khawar Qureshi (Queens Counsel) argued on behalf of Pakistan while Harish Salve gave oral submission on behalf of India.
The legal experts say that ICJ will reject India’s plea to release Kulbhushan. However, he may be allowed counsellor access.
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 the Indian Navy working with Research and Analysis Wing (RAW), India’s primary foreign intelligence agency.
India argued that it was entitled to obtain consular access for Jadhav as soon as his detention was made public by Pakistan on March 25, 2016.
India also argues that the trial and conviction of Jadhav for espionage and terrorism offences by a military Court on April 10, 2017, was “a farce”.
India contends that the denial of consular access to Jadhav requires the ICJ to “at least” order his acquittal, release and return to India.
In its written pleadings, India had accused Pakistan of violating the Vienna Convention by not giving consular access to Jadhav, arguing that the convention did not say that such access would not be available to an individual arrested on espionage charges.
Pakistan rejected all of the Indian allegations. Pakistan points 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.
Islamabad maintains that it would be incompatible with international law for someone sent as a spy/terrorist by a state to be afforded access to officials of that state as New Delhi asserts.
Pakistan also points to an express Agreement on Consular Access dated May 21, 2008, between India and Pakistan, which allows each state to consider a request for consular access “on its merits” in a case involving national security.
Furthermore, Pakistan points to the uncontradicted evidence that Commander Jadhav was provided with an authentic Indian passport under a Muslim name by the Indian authorities, as a clear and obvious link between his conduct and the government of India. Such conduct is a blatant violation of international law should bar any claim for relief from a court.
India refuses to reply on this issue and [unconvincingly] describes it as “mischievous propaganda”.
In addition, Pakistan noted that in all of the ICJ’s previous decisions concerning Article 36 of the Vienna Convention on Consular Relations 1963 (which involved death sentences imposed by the USA), the court made it clear that it was not a court 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 Supreme Court provide such review as confirmed by the leading UK-based military law experts.
India has failed to explain why the Agreement on Consular Access between India and Pakistan dated May 21, 2008 (which India drafted), and which provides [at Article (vi)] for either state to be entitled to consider a request for consular access “on its merits” where it involves a person implicated in national security matters, does not apply in this case. In addition, India fails to explain why UK-based military law experts are wrong when they say that Pakistan’s high court and Supreme Court provide an effective review and reconsideration of the military court process.
The confession of the Indian spy is also present in the form of a video message.
Kulbhushan Jadhav alias, Hussain Mubarak Patel, a serving commander of the Indian navy was working with India’s premier intelligence agency, Research and Analysis Wing (RAW) after he illegally crossed over into Pakistan.
New Delhi has repeatedly sought access to the convict but Islamabad denied the permission on the ground that consular access in cases related to spies was not applicable.
