THE HAGUE: SENIOR lawyer Harish Salve representing India in the Kulbhushan Jadhav case before the International Court of Justice replied to Pakistan’s submissions on Wednesday, the third day of the four-day hearing, at the Peace Palace in The Hague, seat of the Court.

India’s reply, which was afforded one and a half hours by the principal judicial organ of the UN, commenced with taking a strong exception to the “scathing attack” made on India by Pakistan on Tuesday. The transcript peppered with words such as “shameless” (used five times), “disgraceful” (used four times) and “nonsense” (used five times) ought to be taken a notice of, argued a solemn Salve. He admonished Pakistan’s counsel for hammering the proverbial table, as the saying goes “If the facts are against you, hammer the law. If the law is against you, hammer the facts. If the fact and the law are against you, hammer the table.”

Queen’s Counsel Khawar Qureshi representing Pakistan took this correspondent aside later and inquired “have you heard any explanation by Salve by way of response to any of the points we’ve raised yesterday?”

Also read: Pakistan's argument in Jadhav case 'very strong', claims FO spokesperson

It was for a second time during the course of these hearings that India’s lawyer branded Pakistan’s queries “inappropriate and irrelevant” and an “internal matter” of India. He did, however, for the first time talk about the demand from Pakistan to prove Kulbhushan Jadhav’s Indian nationality before consular access could be granted.

“Surely, this cannot be a serious point,” wondered Salve, for a demarche was issued by Pakistan on March 25, 2016 regarding the illegal entry into Pakistan by an officer of RAW, and to be an officer of RAW, one has to be an Indian citizen. Furthermore, India sought consular access because Jadhav was an Indian national. Salve continued to press if there was really a need to prove his nationality when consular access was sought 13 times and not once did Pakistan actually write back demanding proof.

Know more: Who is Kulbhushan Jadhav?

Objections to use of words by Pakistan’s counsel raised before ICJ

“India has never had to deny nationality,” Salve said, adding that it was in fact Pakistan and not India which disowned its nationals. Besides, he said, Pakistan was duty bound to grant consular access under VCCR. It was during this time that Salve turned towards his left and wondered if Pakistan was so “closely, dearly and fondly” ready to believe Jadhav’s confession, why does it doubt his nationality? “Hopeless!” uttered an otherwise calm Salve, who saw the “passport issue” as being rhetoric with no legal basis. On the contrary, he believed Pakistan had no doubt Jadhav was an Indian national which was why it pandered to the global community.

Passport

“All Pakistan has is a passport!” mocked Salve, indulging in what is possibly the longest time India has given to answering why Jadhav was travelling on an authentic Indian passport with a Muslim cover name. Possessing a passport doesn’t make you a terrorist, there is no evidence shared by Pakistan of any such activity, “assuming there was a passport” Salve was quick to add. He was critical of Pakistan refusing to share, to date, the detailed judgement handed down to Indian spy Jadhav by a military court. According to him, India repeatedly requested evidence and grounds of Jadhav’s conviction.

With regards to Pakistan’s complaint of receiving no legal assistance from India in Jadhav’s case, Salve blamed Pakistan itself for no Mutual Legal Assistance (MLA) treaty signed between the two countries, “on account of Pakistan’s reticence”. Article 36 of the VCCR does not depend on complying with MLA requests, this being “another weapon in the propaganda armory of Pakistan”, he added.

Pakistan had cited reports and articles of Indian journalists, some of whom had investigated Jadhav’s undercover activities and his links to the Indian spy agency. In his arguments, Salve quoted the same journalists and their other pieces, where they found Jadhav was in fact not picked up from Sarawan as claimed by Pakistan. These are the journalists who are “the epitome of journalism according to Pakistan”. Why not believe their stories where they negate the version of Pakistan Army and the FIR itself, India’s senior counsel challenged.

With regards to Queen’s Counsel Qureshi’s “studied ambiguity” theory, whereby countries deny consular access in cases of terrorism and espionage, Salve tried to prove how espionage was in fact part of Article 36 of VCCR, and not an exception. He quoted reports that found the whole principle of protection and communication with regard to consular access would have to be reopened if such exceptions were allowed.

India still maintains that revisiting and sending Jadhav’s case for retrial back to the military courts will be an exercise in futility. Salve asked the bench to make up their mind whether judicial review would be a sufficient potential safeguard with a request for not relying on the report on military courts by experts as Pakistan wanted. “This court doesn’t need experts to help it decide whether military courts in Pakistan are due process compliant,” Salve said.

He discussed how Peshawar High Court’s (PHC) judgement staying over 70 executions was in fact challenged by the Republic of Pakistan itself. He chided Qureshi for not mentioning this fact in the court yet wondering why India hadn’t picked up the PHC judgement. The International Commission of Jurists and European Parliament had criticised the functioning of Pakistan’s military courts, Salve added. “Pakistan has defended them by relying on reports by military experts,” adding, “Judicial review by Pakistan courts has a narrow ambit, they’ve not interfered with military court decisions many times.”

In a private gathering later Khawar Qureshi reiterated, “What we identified in our pleadings were misrepresentations in the Indian pleadings. We gave India four opportunities to correct. Unfortunately, not one of those opportunities was used by India. Instead India described one as a typographical error. That’s unacceptable.”

VCCR, ICCPR

The public hearing, held under the presidency of Judge Abdulqawi Ahmed Yusuf, is concerned with whether Pakistan breached Article 36 of VCCR. Pursuant to its jurisdictional competencies, the court’s role is to settle in accordance with international law, legal disputes submitted to it by states, with its judgements being final and binding. Contrary to what has been sought by India, “at least” Jadhav’s acquittal, release and return, the ICJ cannot determine whether Jadhav’s trial was in violation of Article 14 of the International Covenant on Civil and Political Rights (ICCPR) and it cannot order Jadhav’s release either. It can, at best, order relief for the Indian saboteur by ordering a retrial with consular access.

However, in an interesting turn of events, joint secretary of the ministry of external affairs Deepak Mittal demanded that Jadhav’s case be retried in a civilian court. He demanded that if Jadhav could not be released, the military court’s decision must be annulled and he be tried under ordinary law with full consular access. Salve had earlier argued that a system that lacked the fundamentals such as granting public hearing, a fair competent tribunal, affords time and facilities and where review petitions were not heard by higher tribunals would surely render any remedy insufficient.

Interestingly, the top UN court has never been presented with the unique questions of law before as it is for the first time the ICJ has had to deal with a case of VCCR violation under espionage allegations. Espionage, as pointed out by Queen’s Counsel Khawar Qureshi, is a reality of life, yet no one admits to it. For the court to out rightly say that VCCR does not (or does) allow for an exception for spies, both propositions are loaded with problems.

Legal experts believe that the big problem with Pakistan’s line of argument is that spies or terrorist don’t have to be given consular access and if the same is accepted, then not only does it undermine and dilute Article 36(1) in its entirety but also opens dangerous possibilities whereby all states have to do is charge people with espionage and then claim that consular access wasn’t applicable. Whereas, in light of the general principles of international law, Pakistan’s position might be untenable, India’s request too is out of ICJ’s jurisdiction; release or even annulment of the death sentence are both remedies that the ICJ has traditionally claimed it doesn’t have jurisdiction over.

The two likeliest scenarios, as being discussed in The Hague, are of review and reconsideration and guarantee/assurance of non-repetition. The first one entails an appellate court reviewing the conviction in light of the fact that consular access wasn’t granted. The third possibility, and one which India has demanded today, is of a fresh trial. However, Reema Omar, International Legal Adviser, South Asia, at the ICJ, feels that too will be a rarity.

Justice Jillani continues to be part of bench

In what is a balancing win for Pakistan, ICJ top judge Abdulqawi Ahmed Yusuf announced on Wednesday that Pakistan choice of ad hoc judge would very much remain part of the bench. “He [Tassaduq Hussain Jillani] will receive all transcripts of oral proceedings and may also watch them by a webcast... It follows that the judge ad hoc chosen by Pakistan for the current proceedings has been participating in the case and may continue to do so.”

Yesterday, Pakistan submitted a request for the replacement of Pakistan’s ad-hoc judge citing Justice Jillani’s illness. However, Justice Yusuf said the court has received no evidence that the ad hoc judge for Pakistan is unable or unwilling to continue to exercise his duties in the Kulbhushan Jadhav case. “Indeed, in the present case, judge ad hoc Jillani was sent the case file and duly took part in all the previous stages of the proceedings,” he said. “He (Jillani) will receive all transcripts of oral proceedings and may also watch them by a webcast... It follows that the judge ad hoc chosen by Pakistan for the current proceedings has been participating in the case and may continue to do so.” In view of these circumstances and with the court’s approval, a separate sitting of the court could be arranged at a later date, said the top UN judge.

It is important to remember of the 16 judges, Justice Dalveer Bhandari is the sole Indian on the ICJ bench. He has served as a judge in the Supreme Court and fought a closely contested battle for the vacancy on the ICJ. Some see that as India’s growing influence and clout at the UN when for the first time a P-5 country candidate lost to another country.

Published in Dawn, February 21st, 2019