ISLAMABAD: A set of recommendations has been sent to the Prime Minister’s Office and the Foreign Office, strategising how to plead Pakistan’s point of view in the public hearing on Monday before the International Court of Justice (ICJ) on the conviction of Indian spy Kulbhushan Jadhav.

“We have sent our recommendations to the Prime Minister’s Office and the Foreign Office,” Attorney General Ashtar Ausaf told Dawn on Friday, emphasising that it was necessary to keep all measures and options confidential so that the other side might not know the strategy being devised.

Mr Ausaf who headed marathon meetings for two days, which were attended by the bosses of the Foreign Office and the law ministry, is expected to lead the Pakistan side before the ICJ.

But he did not rule out the possibility of engaging someone from abroad, saying the endeavour would be to hire the best minds on international law to advance Pakistan’s standpoint. However, he acknowledged that time was short since the hearing would begin on May 15.

The ICJ is the principal judicial organ of the United Nations which was set up in June 1945 under the UN Charter. The seat of the court is at the Peace Palace in The Hague, the Netherlands.

Strategy for ICJ hearing shared with PM Office, foreign ministry

The attorney general said a robust reply would be advanced by Pakistan in a forceful manner, refuting all allegations levelled against it and also pointing out atrocities India was getting away with committing in India-held Kashmir.

Jurisdiction issue

An expert on international law said Pakistan could raise the issue of jurisdiction before the ICJ, citing a 1999 case pertaining to the shooting down of an Atlantique aircraft in which India had refused to accept the court’s jurisdiction on the pretext that it could not hear cases related to disputes between Commonwealth countries.

Moreover, Pakistan has a list of reservations about the court’s writ pertaining to cases that may be brought before it.

The expert recalled that national security now figured among Pakistan’s listed reservations about ICJ jurisdiction which had been updated on March 29, a fortnight before Jadhav’s conviction.

Indians have been claiming that the ICJ president has stayed the execution of Jadhav, although the notification of initiation of the proceedings on Monday had categorically stated that the hearing would be about “provisional measures” which India had sought to protect its interest in the case, the legal expert said.

The ICJ can allow the provisional measures under Article 41 of its statutes. But the intimation to Pakistan about the proceedings was under Article 74, which technically was not a stay, he explained.

Meanwhile, National Commission on Human Rights (NCHR) Chairman retired Justice Ali Nawaz Chohan who served as an ICJ judge for three-and-a-half years, from 2005 until 2009, as well as the chief justice of the Gambia, wondered, while talking to Dawn, why an unnecessary hype was being created on the matter.

Justice Chohan, who also served as a judge of the Lahore High Court, said Pakistan could forcefully argue before the ICJ that the final stage to approach the world court had not been reached when other forums available to the convict had not been exhausted.

Pakistan could also assure the ICJ that the spy would not be executed until other forums were fully explored, he said.

Moreover, the Supreme Court, in a recent case challenging the 21st Amendment to the Constitution, had kept with itself the judicial authority of reviewing any sentence awarded by the military courts if the condition of fair trial was not met, Justice Chohan said.

Jadhav, who was arrested on March 3, 2016 through a counter-intelligence operation in Balochistan’s Mashkel area for his involvement in espionage and sabotage activities against Pakistan, was sentenced to death by the Field General Court Martial (FGCM) last month.

He was tried by the FGCM under Section 59 of the Pakistan Army Act and Section 3 of the Official Secrets Act of 1923.

Justice Chohan was of the view that the ICJ could assume its jurisdiction on a dispute between two countries despite the fact that both were Commonwealth members if the matter was related to a human right issue.

He said the Indian side was claiming before the ICJ that Pakistan had violated Section 36 (c) of the Vienna Convention on Consular Relations 1963 by not providing consular access to Jadhav.

The section says that the consular officers would have the right to visit a national of the sending state who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They also “have the right to visit any national of the sending state who is in prison, custody or detention in their district in pursuance of a judgement. Nevertheless, consular officers will refrain from taking action on behalf of a national who is in prison, custody or detention, if he expressly opposes such action”.

Published in Dawn, May 13th, 2017