Kulbhushan Jadhav case



Khyber News

The United Nations’ highest court has directed Pakistan to stay the execution of Kulbhushan Jadhav, given capital punishment by a military court for alleged involvement in espionage and terrorism, till it gives its final decision on India’s petition to annul his death sentence.

With the formation of the United Nations in 1945, the International Court of Justice (ICJ) came to be formed as the judicial organ of the UN. The Court is governed by the Statute of the ICJ (“the Statute”) and the rules framed thereunder. Naturally, the member states of the UN are automatic parties to the Statute.

India’s decision to approach the ICJ was a clever move in that; they cited repeated violation of Vienna Convention by Pakistan on the Jadhav case. A timely conversation by India with the ICJ Registrar resulted in Judge Ronny Abraham, President of the Court, immediately writing to Prime Minister Nawaz Sharif to delay the execution till the Court could schedule a hearing and adopt provisional measures. The hearing at such short notice was unprecedented. It demonstrated that the Court shares India’s anxiety that the execution was imminent. Pakistan was taken aback and caught on the backfoot.

A screenshot of Dawn report/ICJ/Youtube read; “We based our case on jurisdiction, and it proved weak.” By staying Pakistan’s execution of Kulbhushan Jadhav, ICJ ruled in India’s favour.

Inputs from various press sources are quoted below.

Rejecting Pakistan’s argument that the court did not have jurisdiction in the matter, ICJ said that Pakistan must take all measures at its disposal to ensure that Jadhav is not executed before the final settlement of the case at the international court.

While the office of the Attorney General Ashtar Ausaf Ali responded to the ruling by saying that “as far as Pakistan is concerned, the court’s decision today has not changed the status of commander Jadhav’s case in any manner,” according to Dawn, Pakistani analysts and observers have labelled the jurisdiction argument as “weak” and “damaging.”

The Pakistan daily quoted senior PPP leader Sherry Rehman as saying that espionage should have been the focus of the arguments. “We based our case on jurisdiction, and it proved weak.”

The arguments for Pakistan had been presented on Monday, May 15, in an emergency hearing organised on India’s appeal. According to a PTI report, Pakistani representatives had argued that there has been no response from India on Pakistan’s accusations on Jadhav “who has confessed to having been sent by India to wage terror on the innocent civilians and infrastructure of Pakistan.”

Khawar Qureshi, who led Pakistan’s arguments, said that the ICJ is not a criminal court and can thus not give a decision on cases relating to national security.

Pakistan had further argued that the provisions of the Vienna Convention did not apply to a “spy involved in terror activities”.

Former Attorney General Irfan Qadir, according to a Dawn report, blamed the lack of experience of the lawyers who handled the case for the ICJ ruling. “We need a dedicated team for Pakistan, loyal to the country,” Qadir said. “Pakistan’s jurisprudence has been ruined because of this.”

Criticising the ICJ order, retired Justice Shaiq Usmani reiterated Pakistan’s argument that the UN’s top court does not have jurisdiction and that Pakistan made a mistake by appearing there. “They have shot themselves in the foot,” Usmani told DawnNews

Urdu television channel Dunya News, on the other hand, quoted lawyer and columnist Yasser Latif Hamdani as saying that the ICJ decision was “exactly in accordance with the expectations,” and that the country should have provided Jadhav with consular access from the very beginning.

According to Yasser, the case, however, would benefit Pakistan more in the long run, since it is the smaller party. “India had now used a multilateral forum and it can’t back away from it tomorrow on similar grounds.”

According to the Express Tribune, in a statement issued on the ICJ order, the attorney general’s office has said that Jadhav still has “ample” time to petition for clemency and that that country is “determined to pursue this case to its logical end.”

London-based barrister Rashid Aslam said Pakistan was ill-prepared and did not make full use of the 90 minutes it had to make its argument at the ICJ. He contended that under the Vienna Convention, a spy’s human rights are forfeited. Lawyer Faisal Siddiqi said the issue was one of consular access “which Pakistan should have given in the first place.”

Another lawyer, Farogh Nasim, said Pakistan should not have conceded to the ICJ’s jurisdiction. “India did not give consent to the Kashmir issue going to the ICJ, then why did Pakistan give consent to the Jadhav case?”

Analysts and observers blamed Pakistan’s legal team for the setback caused by the ICJ’s order. Some argued Pakistan was unable to present its case forcefully because of its weak legal team, and others said the country should not even have appeared at the World Court.

Former attorney general Irfan Qadir said he was shocked by the decision. “I think this decision is a violation of the principle of natural justice. I am shocked as to why Pakistan went there and presented their position and gave it in such a rush,” he said.

Shaiq Usmani, a retired judge of the Supreme Court, told a newspaper the decision was alarming because the “ICJ does not have jurisdiction.” He said, “It is Pakistan’s mistake to have appeared there. They shouldn’t have attended. They have shot themselves in the foot.”

The son of a retired police officer Mr. Jadhav joined India´s National Defence Academy in 1987 and was commissioned as an engineer in the Indian Navy in 1991. Indian legal counselor Deepak Mittal in his interview told that Mr. Jadhav was “a blameless Indian national” who had been held incommunicado “for over a year on created charges.” But Pakistani representatives accused New Delhi of “political grandstanding” and told the court, Jadhav “has confessed to having been sent by India to wage terror on the innocent civilians and infrastructure of Pakistan.”

Pakistan says Jadhav was arrested in March last year in the restive Balochistan province. In April, a military court sentenced him to death for alleged involvement in spying and subversive activities. India has contended he was kidnapped from the Iranian port of Chabahar and his secret trial was a “farce.”

He added, “Until the ICJ gives its verdict, the case will go on in Pakistan. But (Jadhav) cannot be executed until the stay order is there.”

India and Pakistan are all-weather enemies, and their relations have gotten worse on many occasions, but India always stressed to resolve all issues bilaterally. While numerous issues were resolved bilaterally, many remain pending.

The Atlantique Incident was an event in which a Breguet Atlantic patrol plane of the Pakistan Navy’s Naval Air Arm, with 16 people on board, was shot down by the Indian Air Force for violating Indian airspace. The episode took place in the Rann of Kutch on 10 August 1999, just a month after the Kargil War, aggravating already tense relations between India and Pakistan.

Foreign diplomats based in Pakistan and escorted to the site by the Pakistani Army noted that the plane might have crossed the border. The Islamabad-based diplomats said they also believed that India’s reaction was unjustified. Pakistan later lodged a compensation claim at the International Court of Justice, blaming India for the incident, but the court dismissed the case, ruling that the Court had no jurisdiction in the matter.

Jadhav’s case is perhaps the most contentious dispute between India and Pakistan at this moment, and it is likely to shape up the course of future diplomacy between the two countries. Politics and diplomacy are playing out at their best while the ICJ endeavors to adjudicate the case by international laws and conventions.

In a nutshell, India and Pakistan routinely accuse one another of sending spies into their countries, and it is not uncommon for either nation to expel diplomats accused of espionage, particularly at times of high tension. Similarly, spy war has also created enormous tension and disturbed regional stability. Proxy wars should end in South Asia to achieve peace and harmony amongst nations in this region.