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ICJ asked to dismiss India’s plea seeking spy’s acquittal

Updated February 20, 2019

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Pakistan’s legal eagle lambastes India’s ‘outlandish’ case aimed at ‘political point scoring’. ─ AP/File
Pakistan’s legal eagle lambastes India’s ‘outlandish’ case aimed at ‘political point scoring’. ─ AP/File

THE HAGUE: “We have caught you,” a fervent Khawar Qureshi said as he warned India that it could no longer dismiss or “play fast and loose with the truth” on Tuesday, the second day of the four-day hearing in the Kulbhushan Jadhav case at the Peace Palace.

In what is to be unprecedented, Khawar Qureshi Queen’s Counsel invited the International Court of Justice (ICJ) to declare India’s application inadmissible. “I appreciate that this is the first time it will happen,” quipped Qureshi, but based on India crossing all “red lines for conduct” and manifesting “abuse of rights, lack of good faith, illegality, lack of clean hands and misrepresentation” the top UN court should never be used for what was never about counselor access, but rather political point scoring. In what he termed India’s “all or nothing” strategy, Pakistan’s top legal eagle maintained burden of proof on India had still not been disposed of.

It was ironic, how yesterday was a “wasted opportunity” for India, as it failed to answer key questions, given that it had pleaded for a second round of hearing, he said. “Outrageous, offensive position to adopt” by not deeming it necessary to respond in the very least.

Pakistan’s legal eagle lambastes India’s ‘outlandish’ case aimed at ‘political point scoring’

India has so far refused to address multiple questions regarding Jadhav, including the authenticity of the Indian passport that facilitated his travel 17 times in and out of India, with a cover name; his official retirement date and proof; what steps India has taken within Iran to investigate his alleged kidnapping and his sabotage, espionage and terrorism activities that resulted in killings of thousands of Pakistanis. All these questions are dismissed by India with the bold assertion: “Neither the nature of the charges nor the conduct of the sending state is relevant in examining the allegations of the violation of Article 36” [Memorial/page9/para77].

Khawar Qureshi lambasted this as both “puzzling and preposterous” and said it would, if correct, constitute a charter for violation of fundamental principles of international law. “Good faith is a huge part of international law, and India…had demonstrated a lack of good faith,” regretted Qureshi.

The 15-member bench was given details of top Indian journalists who carried out their own investigations and raised these very questions at the risk of being persecuted. With each piece came more dismissals from India, labeling the articles “concocted and mischievous” and the journalists as traitors and “against national interest”.

“This is a court which mercifully has dealt with decent states but as truth must be told, I’ll have to expose the indecency of India,” said Qureshi as he laid out a detailed list of India’s misrepresentations in the pleadings and evidence placed before the court. He reminded India of its 2008 bilateral agreement with Pakistan, negotiated over three years, on nothing other than, counselor access itself. “India can’t wish away Article 6,” thundered Pakistan’s legal aide. Article 6, which states in case of arrest, detention, or sentence made on political or security grounds, each side may examine the case “on its merits”, was in fact added for situations like these. Such provisions need to be given meaning and effect and identify the approach both states are to adopt in cases concerning national security, such as espionage. Qureshi reiterated that it must be interpreted in good faith but alas, the words “merit”, “political or security grounds” are all problematic for India. He accused India of being “highly disingenuous and as removed from good faith as can be”.

Pakistan’s legal counsel likened India to Humpty Dumpty who sat perched on his flimsy wall of lies, which would soon come crashing down, “words mean what they say…The mischief is present where the text elides Article (vi) and Article (v), by the simple device of a comma and convenient failure to mention that these provisions are distinct and separate”.

Khawar Qureshi was requested twice to slow down, by the judges, as he spoke with such flair and speed it was hard for translators to keep pace.

He highlighted several international cases which exhibited “no general practice accepted as law (opinio juris) by states to provide consular access in cases where espionage was reasonably suspected, such as to evidence that any such practice was undertaken with a sense of legal right or obligation”.

Qureshi clarified that Commander Jadhav was convicted of espionage pursuant to a criminal jurisdiction in existence since 1923 and not as a result of the 2015 extension of the military court jurisdiction. What he termed as adding insult to injury was India’s labeling of world renowned experts as “purported expert” (“the word people use when they don’t want the truth,” mocked Qureshi). Sir Gerald Fitzmaurice, UK FCO legal adviser at the time, later ICJ judge, had observed that national security would be the only reason with sufficient weight to justify restricting communication between foreign nationals and their consular officials. Grigory Tunkin (then head of the legal department of the USSR foreign ministry) had made it absolutely clear that the Soviet Union took the view that, in cases of espionage (and as an exception), there was no obligation to provide consular access that would otherwise be available. Qureshi listed compelling examples of the state practice of the USSR and the USA in this regard as well. “Even if the VCCR (Vienna Convention on Consular) was engaged, India’s conduct in sending Commander Jadhav to engage in acts of espionage constitutes a violation of Article 5(a) as well as 55 thereof, and subsequently permitting consular access would continue such a violation, in blatant violation of the fundamental precepts of international law and the object of promoting friendly relations between states,” he said.

Pakistan has maintained that effective review and reconsidering has always been available to Commander Jadhav and his family, but hasn’t been availed. Any order passed by the military courts is open for judicial review by high courts and the Supreme Court in Pakistan, with case in point being the Peshawar High Court’s judgement of Oct 18, 2018. More than 70 convictions handed down by military courts were set aside. The court didn’t hesitate in the slightest to identify lapses in the due process of law and/or evidences leading to the convictions. Yet, Qureshi regretted, India was more eager to quote a local bar association president who was not even an organ of the state and not a judgement lying in public domain.

Attorney General Anwar Mansoor didn’t mince his words at the outset as he said: “Since 1947, India has pursued a policy of destroying Pakistan. Indian PM Narendra Modi is on record to have said using water as a weapon against Pakistan.”

Khawar Qureshi expanded more on how Jadhav’s activities were an actual manifestation of Indian policy, by quoting Ajit Doval, India’s superspy. Of “defensive offensive” strategy fame, India’s national security adviser is on record on how to exploit Pakistan’s vulnerabilities.

Almost three hours worth of articulate and cogent arguments later, Qureshi labeled India’s demand for “at least” Jadhav’s acquittal, release or return (“Goodness, what more can they want beyond that?”) absolutely “outlandish” and one that should be made a precedent out of, by being dismissed.

“Indian petition at the ICJ is an example of an old adage – ‘Mouth prays to Buddha, but heart is full of evil’. I have seen the brutality of Indian torture,” said Pakistan’s attorney general during the hearing of Kulbhushan Jadhav case.

Published in Dawn, February 20th, 2019