The International Court of Justice in The Hague is currently holding public hearings on the case of Kulbhushan Jadhav, the former Indian Naval officer, who was arrested and sentenced to death by Pakistan in April over allegations of espionage and abetting terror.
The one-day hearing involves two sessions of an hour-and-a-half, according India and Pakistan an opportunity to make their case, starting with India in the morning. Pakistan’s session will follow later in the afternoon. The court’s judgment, which could follow as early as in a few days or take several months, is binding with no appeal.
New Delhi asked World Court judges on Monday to order Islamabad to stay the execution of an Indian citizen Pakistan says is a captured spy, a case that has escalated tensions between the two nuclear-armed neighbors.
India argued in a preliminary hearing at the UN court, formally known as the International Court of Justice (ICJ), that Pakistan violated the Vienna Convention on Consular Relations by denying the condemned man access to legal and other assistance from India.
Pakistan is due to respond later today. Foreign Office official Khawar Quraishi is expected to give arguments before the ICJ on behalf of the federal government.
Monday’s hearings focused on India’s request for so-called “provisional measures” that can be granted at short notice to ensure a dispute between states does not deteriorate during full ICJ proceedings, which typically take several years.
At the core of the dispute is the fate of Kulbhushan Sudhir Jadhav, an Indian former naval officer who was arrested in March 2016 in Balochistan. There has been a long-running conflict in Balochistan between security forces and a militant separatist movement.
According to Islamabad, Jadhav confessed to being tasked by India’s intelligence service with planning, coordinating and organising espionage and sabotage activities in Balochistan “aiming to destabilise and wage war against Pakistan”.
In April, a Pakistani military court sentenced him to death. No date was set for the execution. Pakistan has said Jadhav’s conviction and sentence remain open to appeal. India’s representative at the ICJ hearing, Deepak Mittal, described the charges against Jadhav as “concocted” and his trial as “farcical.”
3.00 pm: Mr. Salve says - In its letter of 21st March, Pakistan said to India that the request of consular access can be entertained if India assists in the investigation. The more serious the charge the greater the need to ensure procedural safeguards to ensure that the accused gets a fair trial. The confession played a significant part in the case. The allegations were made even as Jadhav's basic rights were denied. India has a strong case that provisional measures be executed that Pakistan take all measures to ensure Jadhav is not executed; that the Pak. government ensure that no action be taken that might prejudice the rights of India or of Jadhav.
2.55 pm: Mr. Salve says," The rights of Article 36 are sacrosanct. The rights of consular access are a significant step in the evolution of human rights in international law. Article 6 of the ICCPR recognises that no one can be arbitrarily deprived of their lives. In determination of criminal charges, everyone can be entitled to a fair hearing. The person should be given Legal assistance of his own choosing and should be informed of his rights in the interest of justice. In order to make this principle a reality, adherence to rules of Vienna Convention becomes vital. The graver the charge greater is the need for punctilious adherence to the Vienna Convetion.
As the ICJ began hearing Mr. Jadhav’s case, India argued that human rights treated as “basics” all over had been thrown to the wind by Pakistan.
2.45 pm: Mr Salve: On obtaining information on Jadhav's detainment India sought consular access on the same day. Following that, many requests for access has been made by India. Indian Nationality of Jadhav of has never been in doubt. Thus the Vienna Convention has been breached by Pakistan in the issue of consular access to Jadhav. There was a purported confession by him that was the basis of their case. The Vienna Convention does not include any exceptions in respect to Consular access. This underlines the farcical nature of the trial. On 19th April India handed over a note to Pakistan seeking details of the charges and the summary of the trial proceedings.
2.33 pm: Mr. Salve says,"India relies on the Vienna Convention. Mr. Salve refers to the case between Bulgaria and Belgium as precedent in the issue of jurisdiction. The agreement between India and Pakistan on consular access is irrelevant. India does not rely and does not need to rely on this agreement. It bases its case solely on the Vienna Convention.
2.20 pm: Mr. Salve says," India asserts in the application that Pakistan denied consular access to Jadhav. The reasons for the said denial was also not given to India. India has not been given a copy of the charges or the verdict and hence has been unable to check the charges. The Vienna Convention offers no exception. India asserts that the breach of the Vienna Convention is fatal. Under Article 36, jurisdiction exists in respect of all cases that parties refer to and in respect of all matters specially provided for in treaties and conventions."
1.58 pm: Harish Salve as India's counsel starts presenting his statement - I am grateful to the ICJ for taking up the case at such short notice. India has moved ICJ under Article 14 seeking suspension of the sentence awarded to Mr. Jadhav. The case is grave and urgent. Mr. Salve refers to precedent of past cases including LaGrand case between Germany and US in 1982. The case refers to the hearing before the ICJ which concerned the Vienna Convention on Consular Relations.
Harish Salve says,"Jadhav's mother has filed for an appeal which was transmitted to Pakistan via diplomatic paths. The communication of 12th May does not clarify on what his charges are or any clarity on the request for clemency. Pakistan said that Jadhav's sentence is based on credible evidence in espionage against Pakistan. India refuses these allegations and says that Jadhav was kidnapped and framed. India has taken measures to ensure appropriate legal measures for Jadhav. It is not known whether Jadhav will seek clemency in the present circumstances.
1.52 pm: V.D. Sharma, Joint Secretary, MEA as co-Agent presents statement: Pakistan failed to comply to all its obligations under Article 36. It denied consular access to Mr. Jadhav ever since his arrest. India and Pakistan are both parties to the case and the issue has been brought to ICJ by ICJ. The bilateral agreement between India and Pakistan is irrelevant at this juncture, says Mr. Sharma.
1.45 pm: India has been reiterating its request to Pakistan on consular access to Jadhav, says Mr. Mittal. India learnt from press reports that death sentence was awarded to Mr. Jadhav on the basis of a alleged confession. Pakistan has not provided the chargesheet, any documents on the case despite repeated requests. It is clear that Mr. Jadhav has been denied of his right to seek legal counsel. Mr. Jadhav's parents have applied for visa to travel to Pakistan which has fallen on deaf ears: Mr. Mittal.
1.40 pm: Deepak Mittal as India's Agent starts his opening statements seeking immediate suspension of the death sentence awarded to Kulbushan Jadhav. Calling Pakistan's trial as 'farcical', Mr. Mittal introduces the Indian delegation at the Court.
India has been reiterating its request to Pakistan on consular access to Jadhav. India learnt from press reports that death sentence was awarded to Mr. Jadhav on the basis of a alleged confession. Pakistan has not provided the chargesheet, any documents on the case despite repeated requests, says Mr. Mittal.
The ICJ is the UN court for resolving disputes between nations, and its decisions are final and binding. However, it has no means to enforce rulings and they have occasionally been ignored.
In a similar dispute over the Vienna Convention in 1999, the ICJ ordered the United States not to execute a German national who did not get proper consular assistance, but the man was put to death regardless.
After a 2004 ruling against the United States in a case brought by Mexico, the administration of then-President George W Bush ordered reviews of dozens of cases of Mexicans on US death row who had not been offered consular access as a remedy.
The US Supreme Court later ruled that under the US federal system, individual states are not obliged to comply with the international treaty, a contradiction that has yet to be resolved.