THE HAGUE: All eyes are on the top UN court as it starts its four-day public hearing in the case of 48-year-old Indian national Kulbhushan Jadhav. India was first to present its case on Monday (Feb 18), at The Hague.
The hearing didn’t commence without spectacle as MEA joint secretary Deepak Mittal clasped his hands in a dramatic Namastay ignoring the hand offered by Pakistan’s AG Anwar Mansoor Khan.
India’s envoy to the Netherlands Venu Rajamonyon, too, refused to greet Pakistani officials in kind. However, this came as no shock to the Pakistani officials who had witnessed the same withdrawn and curt demeanour by the Indians at the International Court of Justice (ICJ) in May 2017.
According to Geeta Mohan, Foreign Affairs Editor at India Today, India is angry, and this sets the mood. Till late Sunday evening, the Indian officials were eager to reach out to their Pakistani counterparts to ensure no overlapping of logistics or shared hotel accommodation for the two delegations; offering to relocate in case the Pakistani delegation had already set camp in the hotel of choice. Keep in mind, this is the first official confrontation between the two countries post-Pulwama attack, albeit in robes, lawyer versus lawyer.
Indian team cold-shoulders Pakistan’s delegation that will make arguments during Kulbhushan case hearing today
Amidst such tense undercurrent, the 15-member panel of ICJ judges heard India’s Counsel Advocate Harish Salve at the Peace Palace, the seat of the Court, from 2pm to 5pm PST. The four-day trial will end with Pakistan’s closing arguments on Thursday. Unfortunately, former Chief Justice of Pakistan Tassaduq Jilani was unable to sit in the panel as Judge Ad hoc along with ICJ’s regular judges today for being unwell.
Salve began his case by identifying it as an “unfortunate” matter relating to the life of an “innocent Indian national”. He based his arguments on two broad issues in what he essentially saw as a “simple” case, breach of Vienna Convention on consular access (VCCR) and the process of resolution. India’s lawyer was quick to label Pakistan strong on rhetoric and blurry on facts, and failing in its propaganda to malign his country. Pakistan was bound to grant consular access at the earliest, but in fact refused to reply to 14 requests made by the Indian government at different times, he said. Salve said the First Information Report (FIR) was registered against Jadhav as late as April 8 and his confession obtained before the FIR was used as a propaganda machine by Pakistan. India’s counsel quoted then Pakistan’s adviser on foreign affairs Sartaj Aziz several times including his statement regarding the transparency of the trial. The fact that Jadhav was given a state officer for defence, allowed to question witnesses and all political parties of Pakistan being unanimous in granting the death penalty to a spy, according to Salve, highlighted the political odds against a fair trial.
Former Solicitor General Harish Salve was not only quick to reject all of Pakistan’s claims regarding Jadhav’s role in fomenting terrorism and engaging in espionage within Pakistan, but also to ask the ICJ not to allow Pakistan to indulge in the “passport issue”, as that stood “irrelevant and alien” to today’s proceedings. Terming Article 36 a vital cog in the wheel of justice, Salve continued to make a case based on human rights, protection of aliens on foreign land and pleaded the court to uphold VCCR, as a powerful tool that ensures the facility of consular access to foreign nationals that have been put to trial in a foreign country.
Pakistan’s frequent reminder of the express agreement signed by the two countries on Consular Access dated, 21 May, 2008 was also rubbished by Salve. The agreement that allows each state to consider a request for consular access “on its merits” in a case involving national security, does not make any reference to the VCCR. Salve argued that VCCR could be clarified or supplemented by bilateral treaties but by no means diluted, modified or undermined. Neither can any article of a bilateral agreement destroy Article 36 of VCCR, nor does Article 36 commit to any exceptions, charges of espionage included. “If Article 36 grants rights of consular access in all cases including where allegations of such kind are levelled, then demanding those can’t be an abuse of those rights,” he added.
Stressing the importance of granting consular access before commencement of trial, he regretted that Jadhav was “kidnapped”, detained, interrogated, tried and convicted without being granted consular access. He maintained Pakistan’s approach was regrettable in that the severity of charges did not justify violating the procedural processes of law.
A significant last chunk of Salve’s argument was dedicated to Pakistan’s military courts as he demanded annulment of Jadhav’s conviction and his release. Salve insisted Pakistan could not hide behind domestic law to violate international obligations. Review and reconsideration was an unworkable remedy in the present Pakistani system, one absent of any due processes, where the institutional bias against Jadhav was unmistakable, he said. Real relief would be, he added, Pakistan being directed to acquit Kulbhushan Jadhav who Pakistan claims had travelled at least 17 times with his cover name as Hussein Mubarak Patel.
Why this ambitious plea by India should be rejected, is it within or outside the jurisdiction of the ICJ, and how essential is it after all, to get answers to questions long avoided by India, these are matters that shall be addressed tomorrow by Khawar Qureshi, a Queen’s Counsel. He was vocal about being disappointed by India’s arguments today, but will he set the record straight? As Chambers & Partners point out, “He delivers the goods…as such he’s completely what the modern barrister should be like”.
Following the proceedings, Director General for South Asia and Saarc Dr Mohammad Faisal, who attended the Monday hearing, said India’s lawyer failed to answer any of the questions raised by Pakistan regarding the service or retirement of the Indian navy commander; the authenticity of the Indian passport that facilitated his travel 17 times with a cover name; his sabotage, espionage and terrorism activities that resulted in the killing of thousands of Pakistanis in Karachi and different areas of Balochistan where he was finally arrested. He said a team of senior lawyers and foreign ministry officials would make their submissions before the court on Tuesday.
Published in Dawn, February 19th, 2019