Jadhav case in ICJ: India cites Vienna Convention, Pak quotes exceptions to it

India has made multiple requests for consular access to Kulbhushan Jadhav, the businessman and former naval officer facing a death sentence in Pakistan on charges of espionage and terror, but Pakistan has not provided it.

That's how Harish Salve, representing India at the International Court of Justice at The Hague, started his arguments. “Article 36 of Vienna Convention has been violated,” he told the court.

Deepak Mittal and VD Sharma, joint secretaries in the Ministry of External Affairs, are part of the Indian delegation as agent and co-agent.

Pakistan could go ahead with the execution, making the present situation grave and urgent, and hence India has requested for the ICJ's intervention. The government believes there is an imminent danger to Jadhav's life after the “farcical trial” in the Field General Court Martial proceedings.

Maintaining that Jadhav had been kidnapped from Chabahar in Iran, Salve told the court how he has been denied the right to defend himself, and how the purported 'confession' was extracted in custody. The Indian government also does not know the status of the appeal filed by the Indian High Commissioner on behalf of Jadhav's mother. “We fear that Jadhav will be executed before this trial ends,” Salve told the court.

Pakistan later countered India's assertions, saying India has not provided even a jot of evidence. Pakistan, however, did not play Jadhav's video confession as was speculated.

'Greater need to ensure safeguards'

India, taking the Pakistani security establishment by total surprise, had moved the ICJ on 8 May. Acting on Salve's forceful representation to the registrar, ICJ president Ronny Abraham used his extraordinary powers to immediately put proceedings on hold till the matter was decided by the ICJ. He also convened an urgent sitting of the court.

Salve told the court how Pakistan has not given reasons for the denial of consular access, how India has not been given a copy of the charges, or the details of the evidence, and the copy of the judgement itself.

Pakistan had made India's assistance to the investigations on the Jadhav's case a prerequisite for consular access. Salve, ripping that argument apart, told the court how linking investigations to consular access is in itself a violation of the Vienna Convention on Consular Relations.

“The more serious the charge, the greater the need to ensure procedural safeguards to ensure that the accused gets a fair trial,” Salve told the court.

He also outlined how the confession taken under custody played a significant part in the case, and how allegations on Jadhav's involvement were pushed, even as Pakistan continued to deny him basic rights, that of a fair trial.

Not relying on bilateral agreement

Salve also told the court that India does not rely on the bilateral agreement on consular access signed between both the countries in this particular case, and that it is irrelevant to the case. The bilateral agreement talks about how, in case of arrests on political or security grounds, each side may examine the case on its merits. But at the same time, it talks about consular access within three months, immediate notification to the High Commission et al. India has chosen to base its case just on the violation of Vienna Convention on Consular Access.

Salve also argued how violations of the Article 36 of the VCCR could be fatal, and how its provisions come under the compulsory jurisdiction of the ICJ. Salve cited three cases taken up the ICJ in the past on the violation of the VCCR.

Salve cited the International Covenant on Civil and Political Rights, and how it recognises nobody can be arbitrarily deprived of their lives, how everyone is entitled to a fair hearing, and the right to a legal counsel of his own choosing. This explains why consular access is a vital first step.

Salve argued how India has a strong case for provisional measures to ensure Jadhav is not executed, and that the Pakistani government should ensure that it will take no action that could prejudice the rights of India or of Jadhav.

Pakistan's response

Pakistan's counsel Khawar Qureshi made several points to counter Indian assertions.

He claimed the 2008 bilateral agreement between both the countries cannot be wished away when it has been functional and there have been no complaints. He also claimed that since Jadhav was found with a fake passport, India is yet to provide evidence of his Indian nationality.

Qureshi also claimed that the Indian government has not provided the court with all the facts of the matter. The Pakistani counsel also made a reference to the exceptions within the VCCR, that is, situations where the convention would not apply, and asserted that Jadhav's case would fall in that category.

Qureshi also claimed that India should have only brought Jadhav's application to the ICJ in extreme emergencies, and how Pakistani authorities have made clear the details of the appeal process against the sentencing.

Qureshi also told the court that Indian authorities were provided with a detailed copy of the FIR, and that Jadhav was arrested from Balochistan, not Chabahar, Iran, as India claims.