Pakistan on Tuesday accused India of using the International Court of Justice (ICJ) for "political theatre" as it urged judges to dismiss India's case seeking to save spy Kulbhushan Jadhav from execution.
The top United Nations court's four-day public hearing in the case of the 48-year-old Indian national began on Monday, with India presenting its case first. Pakistan presented its arguments in the case today. The four-day trial will end with Pakistan’s closing arguments on Thursday.
The case centres on the fate of Jadhav, who was convicted of espionage by a Pakistani military court and sentenced to death in April 2017. India denies Jadhav is a spy and has asked the ICJ to order his release because he was denied access to consular help and not allowed to choose his own defence lawyer.
Attorney General of Pakistan Anwar Mansoor Khan on Tuesday argued that Jadhav was an Indian spy sent to Balochistan to destabilise the country. He said that "India's claim for relief [...] must be dismissed."
Khan told the court that Jadhav ran a network "to carry out despicable terrorism and suicide bombing, targeted killing, kidnapping for ransom and targeted operations to create unrest and instability in the country".
"His unlawful activities were directed at creating anarchy in Pakistan and particularly targeted the China-Pakistan Economic Corridor," Khan told the 15-judge bench.
But Jadhav did not act on his own, Khan added. "Rather they were committed at the behest of the Indian state and the government."
A confession by Jadhav obtained by Pakistani officials "speaks of India's state policy of sponsoring terrorism in Pakistan," he said.
Since partition, "India has persistently pursued the policy of trying to destroy Pakistan," Khan said.
Another Pakistani lawyer Khawar Qureshi told the court: "India's proceedings [...] are purely for political theatre... and they should be dismissed."
He termed India's arguments — presented a day earlier — as an opportunity wasted, saying India failed to answer fundamental questions regarding subversive activities of its serving navy commander inside Pakistan.
Qureshi questioned India's demand of provisional measures without conduct of any hearing since it invoked ICJ's jurisdiction on May 8, 2016 and termed the Indian claim for acquittal, release and return of Jadhav as "outlandish".
Calling India's proposition as "absurd and nonsensical", he said India was showing a lack of good faith and sponsoring terrorism in Pakistan through Jadhav.
Qureshi also referred to a few cases of Russia and China where states were free to modify their own practice in dealing with espionage as special case.
He said India and Pakistan entered into a clearly worded agreement on consular access (operative since 1982 and amended in 2008) which identified the basis to consider the option of consular access in cases of espionage.
He emphasized that India's conduct in sending Commander Jadhav to engage in acts of espionage violated the Article 5(a) of Vienna Convention and said permitting consular access would be in blatant violation of the fundamental precepts of international law.
He requested the court to declare India's petition inadmissible by reason of its conduct manifesting abuse of rights, illegality and misrepresentation.
Furthermore, Qureshi said that even if the court were to hold that Vienna Convention's Article 36 was engaged and a right to consular access was denied, the appropriate remedy would be filing a review before Pakistan's High Court, any time by Jadhav and his family.
India's arguments in yesterday's hearing
A 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.
Salve began his case yesterday 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 a 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 Pakistan's then 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.
Following the proceedings, Director General for South Asia and Saarc Dr Mohammad Faisal, who attended the Monday hearing, said India’s lawyer had 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.