Transfer Kulbhushan Jadhav's case to an ordinary court: India to ICJ

The Hague: India on Wednesday urged the International Court of Justice (ICJ) to transfer the case of Kulbhushan Jadhav, Indian national sentenced to death in an espionage case in Pakistan, from a military court to an ordinary court, if he is not to be released immediately.

"The court (ICJ) should direct Pakistan to release the Indian national Jadhav and arrange for his safe passage to India. If the court were not to release him, annul the death by a military court and direct a trial under the ordinary laws with full consular access," Deepak Mittal, India's agent and Joint Secretary in the External Affairs Ministry said winding up India's arguments before the ICJ.

His winding up remarks followed a 90-minute presentation by senior counsel Harish Salve on the arbitrary nature of proceedings in the military court in which due process of law was not followed in the trial of Jadhav, held on spying charges in 2016.

Mittal said the court should adjure and declare that Pakistan was in breach of Article 36 of the Vienna Convention, 1963 as it failed to inform India of Jadhav`s arrest and for declining access to Jadhav by Indian consular officers.

In his opening remarks, the official said India took full responsibility of what was said in the court and protest against the strong language used by Pakistani counsel on Tuesday.

Speaking on India`s criticism of military courts in Pakistan, Salve, in his arguments for the second day, said, "This court doesn`t need experts to help it decide whether military courts in Pakistan are due process compliant. Pakistan has mischaracterised India`s reading of the report on military courts as an attempt to mislead the court."

Three attempts by Pakistan to derail proceedings in this court have failed, he alleged.

Pakistan attempted to produce video of Jadhav`s purported confession on February 18, before the oral hearings. The ICJ declined to take the video on record. Pakistan attempted to bring evidence, declined through oral submissions, said Salve. 

"Bio-data mentions that Jadhav was a former Indian Navy officer. This would be proof of his Indian nationality," said Salve. Indian nationals are not the kind whose nationality needs to be denied, he added.

Pakistan had relied on Avena case, which goes against them. According to the case, once there is a probability that a detainee is a foreign national, consular access must be granted, Salve contended.

"India denies existence of legal relations treaty with Pakistan because of the latter`s reticence. This was a point I made in the first round that has not been countered by Pakistan," he said. 

The former Solicitor General of India argued India has repeatedly asked for a copy of the judgment convicting Jadhav and the charges against. There would be no threat to security of Pakistan if they share these documents, he added.

"If Jadhav had been involved in subversive activities, irrespective of whether or not he had an Indian passport, he would have been tried for espionage," he said. 

Jadhav has been sent to gallows on the basis of extracted confession, Salve said adding International Commission of Jurists and European Parliament have criticised the functioning of Pakistan`s military courts. Pakistan has defended them by relying on reports by military experts, Salve said. 

Judicial review by Pakistan courts has a narrow ambit and they have not interfered with military court decisions many times, Salve said.

Criticising the language used by Pakistan counsel Khawar Qureshi, he said criticism of one sovereign state of a case made out by the another state must be in a language consistent with the dignity of the sovereign state and the majesty of this court and solemnity of the proceedings in this court. 

"Humpty Dumpty has no place in this court," he said.

"This court has jurisdiction over the sovereign states and conduct proceedings in which sovereign states are given directions, which are binding upon them. This court, therefore, conduct itself with restraint and respect, which does not undermine the sovereignty of any of the states or shows disrespect to any of them," he said adding the transcript is peppered with words such as "shameless, nonsensical, laughable, breath taking arrogance", 

On a quick count, he said, "shameless and nonsense occurred five times each. Arrogance, ridiculous and disgraceful four times each. And these are addressed to submissions made in the memorial made in the reply by the sovereign republic of India". 

"India believes we have a strong case. We are saying `hammer the facts and hammer the law`. As the old lawyer saying goes when you are strong on law you hammer the law, when you are strong on facts you hammer the facts. And when you have neither, you hammer the table."

On June 5, 2018 Pakistan wrote a letter to India demanding confirmation that the contents of the reply are in old material respects accurate and requesting India whether the lead counsel has reviewed or approved the reply as far. 

Pakistan-chosen ad-hoc judge Tassaduq Hussain Gillani who suffered a heart attack during Monday`s hearing will continue to participate in the proceedings. He has been given case files. He will receive the transcripts of oral proceedings. 

The ICJ President, in his observations, said the case would continued to be heard by Judge Gillani and video conferencing with him could be delayed to an appropriate date and time till he recovers.