A new legal team is now being considered on priority basis
[dropcap color=”#008040″ boxed=”yes” boxed_radius=”8px” class=”” id=””]T[/dropcap]wo successive Indian victories in the ‘Kulbhushan Jadhav’ case at the International Court of Justice have put immense pressure on Islamabad to disregard the verdict following domestic consternation over the defeat. Having anticipated an Indian move at the ICJ, Pakistan had quietly modified its terms of engagement with the court a fortnight before the death sentence on the former Indian naval officer was made public and was confident that the ICJ no longer had any jurisdiction in the matter.
Critics are savaging the Pakistani defence strategy, beginning with the decision not to set up a judge at the ICJ.
But on 18 May 2017, the 11-member ICJ unanimously asserted that it enjoyed jurisdiction as the case involved an alleged violation of Article I of the Optional Protocol of the Vienna Convention, to which both Pakistan and India ascribe, and whose interpretation falls under its purview. Hence, it ruled that “Pakistan should take all measures to ensure that Mr Jadhav is not executed till the final decision of this court”, and keep it informed about all measures taken in implementation of the order.
Earlier, on May 8, Indian ambassador to The Netherlands, P.S. Mukul, and Senior Advocate Harish Salve had rushed to the Peace Palace at The Hague and impressed the Registry of the urgency of India’s case. This led to the President of the ICJ, Judge Ronny Abraham of France, writing to Pakistan Prime Minister Nawaz Sharif not to take any precipitate action in the matter.
[dropcap color=”#008040″ boxed=”yes” boxed_radius=”8px” class=”” id=””]A[/dropcap]t the first official hearing on 15 May, both sides were heard. On 18 May, the ICJ, in a huge moral victory for India, granted a formal stay on Jadhav’s execution. The verdict is expected to exacerbate civil-military tensions in Islamabad as Jadhav was tried and convicted by a military court and the legal defence was decided by the Nawaz Sharif government.
The stay on Jadhav’s execution is a blistering indictment of Pakistan, which has committed not to execute him till the month of August
As the May 15 proceedings were webcast live by ICJ, the world observed the supreme confidence with which Pakistani lawyer Khawar Qureshi (also a Queen’s Counsel like Harish Salve) presented his country’s case, though his arguments were palpably weak. In contrast, India’s Harish Salve appeared nervous but stuck resolutely to his brief, utilising his allotted 90 minutes in full.
Now, critics are savaging the Pakistani defence strategy, beginning with the decision not to set up a judge at the ICJ. According to Senior Advocate Prof Bhim Singh, if a country does not have an elected judge at the ICJ and has to face a case before that august body, it has the right to send a judge for the duration of the case. India’s Justice Dalveer Bhandari of the Supreme Court was elected to the ICJ in 2012.
Further, Pakistani critics contend that the jurisdiction argument was “weak” and “damaging”. Others lashed out at Khawar Qureshi for not fully utilizing the 90 minutes allotted to him. Pakistan’s former Attorney General Irfan Qadir said the arguments had “no weight”.
[dropcap color=”#008040″ boxed=”yes” boxed_radius=”8px” class=”” id=””]A[/dropcap]n ad hoc judge and the new legal team are now being considered on priority basis. But lawyer Feisal Naqvi admitted the ultimate question pertains to consular access “which Pakistan should have given in the first place”. Perhaps Pakistan can also lift the bar on lawyers giving legal aid to Jadhav under the auspices of the India-Pak Joint Defence Committee for Prisoners.
While Pakistan’s pledge that Jadhav “would be provided with every opportunity and remedy available under the law to defend his case” is reassuring, the assertion that “We are determined to pursue this case to its logical end,” sounds ominous.
In its detailed reasoning, the Court examined the question whether the rights alleged by India are at least plausible. It observed that the rights to consular notification and access between a State and its nationals, as well as the obligations of the detaining State to inform the person concerned without delay of his rights with regard to consular assistance and to allow their exercise, “are recognized in Article 36, paragraph 1, of the Vienna Convention”. India alleged violations of this provision, which was upheld.
Examining the link between the rights claimed and the provisional measures requested, the Court ruled that the “measures requested are aimed at ensuring that the rights contained in Article 36, paragraph 1, of the Vienna Convention, are preserved”. This too was upheld.
The Court then examined if there was a risk of irreparable prejudice and urgency, and ruled that “the mere fact that Mr Jadhav is under a death sentence and might, therefore, be executed is sufficient to demonstrate the existence of a risk of irreparable prejudice to the rights claimed by India”.
[dropcap color=”#008040″ boxed=”yes” boxed_radius=”8px” class=”” id=””]T[/dropcap]aking note of Pakistan’s submission that Jadhav would probably not be executed before the month of August 2017, it noted that, “This means that there is a risk that an execution could take place at any moment thereafter before the Court has given its final decision in the case”. Noting further that Pakistan “has given no assurance that Mr Jadhav will not be executed before the Court has rendered its final decision”, the Court ruled that, “Pakistan shall take all measures at its disposal to ensure that Mr Jadhav is not executed pending the final decision in these proceedings and shall inform the Court of all the measures taken in implementation of the present Order. The Court also decides that, until it has given its final decision, it shall remain seized of the matters which form the subject-matter of this Order.”
Pakistan’s legal team was led by Khawar Qureshi, QC, Ambassador Moazzam Ahmad Khan, Dr Muhammad Faisal, Syed Faraz Hussain, Asad Rahim Khan and Joseph Dyke. They argued that as Jadhav “has confessed to having been sent by India to wage terror on the innocent civilians and infrastructure of Pakistan”, according to the Vienna Convention, the court had no jurisdiction in the matter. Qureshi insisted that the ICJ is not a criminal court and cannot decide cases relating to national security. But Pakistan lost on all counts.
The stay on Jadhav’s execution is a blistering indictment of Pakistan, which has committed not to execute him till the month of August. It remains to be seen whether the military will permit consular access to Jadhav and for proper legal representation by providing copies of the charge-sheet, trial proceedings, and order of execution. [At the time of writing, Pakistan had announced it would not give consular access, but it is hoped that better sense may prevail].
Regardless of how the trial plays out in Pakistan, it is imperative that India gain access to Jadhav and hear his side of the story of his capture and incarceration. With Pakistani lawyers agreeing that it was a huge mistake not to grant India consular access – not to mention the intimidation of human rights lawyers who might have assisted in the defence of the Indian national – the setbacks at The Hague are bound to dent the prestige of the all-powerful Pakistan Army.
1. The views expressed here are those of the author and do not necessarily represent or reflect the views of PGurus.