THE HAGUE: The International Court of Justice’s (ICJ) verdict in the case of Kulbhushan Jadhav, a serving Indian naval commander who had been awarded death sentence by Pakistan on charges of espionage, came with a detailed dissenting note authored by Justice Tassaduq Hussain Jillani, an ad hoc judge of the court.

Justice Jillani wrote that the court should have found India’s application to be inadmissible because its conduct amounted to abuse of rights. He recalled that the 2008 agreement between India and Pakistan specifically governed questions of consular access and assistance in cases of arrest and detention on national security grounds.

Pakistan lawfully withheld consular access and assistance while examining the case of Jadhav on its merits. Even if the Vienna Convention was applicable in the case, Pakistan had committed no breach of its Article 36 because the country had already in place the procedures necessary for ensuring effective review and reconsideration of the conviction and sentence of Jadhav, he said.

Vienna Convention doesn’t apply to spies, according to ICJ’s ad hoc judge

Justice Jillani said in his dissenting note: “The Court’s judgment appears to set a dangerous precedent at the times when states are increasingly confronted with transnational terrorist activities and impending threats to national security. Terrorism has become a systemic weapon of war and nations would ignore it at their own peril. Such threats may legitimately justify certain limits to be imposed on the scope of application of Article 36 of the Vienna Convention on Consular Relations, in the bilateral relations between any two states at any given time.”

Justice Jillani said: “The present case is distinguishable from the Court’s Avena and LaGrand jurisprudence on which the Court has heavily relied. Among various distinguishing factors, the most important one is that the Court was faced here with special circumstances of an individual arrested, detained, tried and convicted for espionage and terrorism offences.”

He said the Vienna Convention had been concluded to contribute ‘to the development of friendly relations among nations’ and it could hardly be the case that the drafters of the convention intended for its rights and obligations to apply to spies and nationals of the sending state (India) on secret missions to threaten and undermine the national security of the receiving state.

Justice Jillani wrote in his dissenting note that India had provided no rebuttal throughout the proceedings to the circumstances in which it had provided an authentic Indian passport, with false identity, to Jadhav and the particulars of Jadhav’s mission in Pakistan, despite the serious nature of the crimes he had committed. The court should have drawn the necessary inferences there from.

Justice Jillani said: “Since 31 May 2017, Pakistan has sent six requests to India for necessary cooperation in the investigation of the criminal case [against Jadhav] and about the passport issue, but these were of no avail. Pakistan even offered to extradite Mr Jadhav to India, if India was prepared to indict him under the Indian laws. The accounts of three respected Indian journalists, Mr Karan Thapar, Mr Praveen Swami and Mr Chandan Nandy, based on interviews conducted with Indian officials, confirm that Mr Jadhav was a RAW agent.”

Justice Jillani said that India’s persistent refusal to cooperate in the investigation against Jadhav was contrary to the United Nations Security Council resolution 1373, which, inter alia, mandated that all United Nations member states shall “(f) [a]fford one another the greatest measure of assistance in connection with criminal investigations or criminal proceedings relating to the financing or support of terrorist acts, including assistance in obtaining evidence in their possession necessary for the proceedings”.

According to Pakistan, Jadhav’s conduct of perpetrating acts of terror was part of a chain of acts carried out by India to destabilise Pakistan, said Justice Jillani.

According to Pakistan, he stated, “Mr Jadhav was apprehended by security agencies when he entered Balochistan from Iran (Saravan border). India claims that Mr Jadhav is a retired naval officer who was kidnapped from Iran where he was doing business.

‘‘However, neither in its memorial nor in its reply has India given his date of retirement from the Indian Navy. It has not placed any document on record either to indicate the kind of business he was carrying in Iran or when and how he was kidnapped. If Mr Jadhav was in fact kidnapped, as contended by India, India could have lodged a complaint with the Government of Iran, but it failed do so.”

Published in Dawn, July 18th, 2019