ISLAMABAD: The International Court of Justice (ICJ) will formally announce its verdict on the conviction of Indian spy Commander Kulbhushan Sudhir Jadhav on July 17 at the Peace Palace, The Hague.

Attorney General Anwar Mansoor and Director General for South Asia and Saarc at the Ministry of Foreign Affairs Dr Mohammad Faisal are expected to leave for The Hague to hear the verdict to be announced at 3pm (6pm Pakistani time).

Harish Salve, representing New Delhi, had opened the arguments on Feb 18, followed by English Queen’s Counsel (QC) Khawar Qureshi who made submissions on Feb 19 on behalf of Islamabad.

Kulbhushan Jadhav, who was captured in Balochistan in March 2016, had confessed to his association with Indian intelligence agency RAW and his involvement in espionage and fomenting terrorism in Pakistan.

World court through an interim order stayed spy’s execution; Pakistan furnished two counter-memorials on Indian claims

On May 18, the ICJ through an interim order stayed Jadhav’s execution after which Pakistan’s Foreign Office communicated to the world court that the government had instructed all relevant departments to give effect to the order.

Pakistan has already furnished two counter-memorials on the Indian claims.

India, which brought the case before the world court under the Vienna Convention on Consular Relations 1963, had filed its reply on April 17, 2018, to which Pakistan filed a detailed rejoinder on July 17, 2018.

In its counter-memorial to the Indian claims, Pakistan had raised a number of questions, including the existence of Customary International Law of an ‘espionage exception’ to consular access in view of obvious dangers of allowing a state-sponsored spy/terrorist untrammelled communication with the authorities of his sending state that despatched him to commit unlawful acts.

Pakistan had also drawn the world court’s attention to a bilateral agreement concerning consular access between India and Pakistan that clearly qualified consular access in matters of national security.

Significantly, Pakistan had asked the ICJ to consider whether India had acted illegally in facilitating Jadhav’s espionage/terrorism by providing him with the passport. On previous occasions when the ICJ had considered the issue of death penalty/consular access, it never ordered relief of “acquittal, release or return”, which was being sought by India.

New Delhi claimed that Jadhav was an innocent businessman who was kidnapped from Iran and tortured to confess to being an Indian RAW agent. But Pakistan contended that Indians had failed to make good this allegation despite repeated requests for evidence that Jadhav was kidnapped.

The Pakistani side argued that Indians had failed to satisfy that Jadhav had retired from the Indian navy and when and why he was retired since he was only 47 years old when arrested. Likewise, India failed to explain why Jadhav was in possession of an authentic Indian passport issued in a false “cover” Muslim name ‘Hussain Mubarak Patel’ which he had used at least 17 times to enter/exit India.

India had been asked this question many times, even by highly respected Indian senior journalists such as Praveen Swami and Karan Thapar, but they declared this as irrelevant or mischievous propaganda, Islamabad argued, adding that eventually India contended that the passport was clearly a forgery but refused to explain why a highly credible independent UK expert was wrong when he stated that it was an authentic passport issued by the Indian authorities.

New Delhi demanded that the ICJ order Pakistan to return Jadhav to India, but the court repeatedly explained that it was not a criminal court of appeal. The world court also clarified in its earlier decisions that even if consular access was denied, the proper recourse would be an effective review to be reconsidered by the local courts.

Jadhav and his family, Pakistan said, could have invoked Article 199 by seeking the relief through a high court, but India launched proceedings in the ICJ — 14 months after he was arrested and one month after he was convicted — to seek a stay order without a hearing.

“Why is India asking for an order for the return of Jadhav in the face of ICJ’s decision and the independent expert evidence confirming Pakistan has effective review and reconsideration before the high court and the Supreme Court,” the Pakistani side contended.

New Delhi had failed to explain why the May 21, 2008 agreement on consular access between India and Pakistan, which was even drafted by India and provided Article VI for either state to be entitled to consider a request for consular access about persons implicated in national security matters, did not apply in this case.

India had also failed to explain why the highly respected UK-based military law experts were wrong when they said Pakistan’s high court and the Supreme Court provided an effective review and reconsideration of the military court process, the Pakistani side contended.

Published in Dawn, July 5th, 2019