THE HAGUE: India failed to answer fundamental questions into Kulbhushan Jadhav case on first day of hearing at the International Court of Justice (ICJ) on Monday.
Harish Salve, the Indian counsel resorted to circumlocution during three hours long submissions he made before the 15-member bench of the ICJ, headed by it President Somalian-Muslim Justice Abdulqawi Ahmed Yusuf.
‘’Today we are disappointed with India’s position. There was nothing new (in it), were the remarks of Khawar Qureshi QC, member of the English Bar who is representing Pakistan at International Court of Justice on conclusion of first day on ongoing hearing in Kulbhushan Jadhav case.
Talking to reporters outside Peace Palace, the historic building where ICJ is located, he said India failed to answer fundamental questions Pakistan had raised.
There are fundamental questions that India is yet to answer to describe it (the case) irrelevant, propaganda, concocted he said adding Pakistan will be presenting its submissions today (Tuesday).
Earlier Harish Salve, the Indian counsel presented his arguments for three hours in which he mainly focused on alleged denial of counsellor access to Indian national Jadhav, a serving Navy officer of Indian Navy.
Military court in Pakistan had awarded him death sentence on charges of espionage. India approached ICJ against the sentence.
According to Salve India sent requests for counsellor access 13 times to Pakistan. Denying of counsellor was violation of fundamental rights and breach of the Vienna Convention, which both countries have signed.
He also claimed that confessional statement of Jadhav came even before the case was formally registered against him by the authorities in Pakistan.
He also questioned fairness and impartiality of trail by the military court where he said Jadav was provided an officer not a lawyer to plead his case.
He said if the court sends the case for a revisit or retrial, it would again go to the military court in Pakistan whose impartiality India doubts.
However Indian counsel during the marathon submissions failed to address the fundamental questions Pakistan had raised in ICJ about the case.
Pakistan says that according to India, Commander Jadhav is an innocent Indian national who was kidnapped from Iran to make him confess to being an Indian RAW agent but India has failed to provide any evidence to substantiate it’s claim.
India had been claiming he is a retired officer of from the Indian Navy. India has failed to explain when/why he retired (he was only 47 years old when arrested).
India refuses to explain how Commander Jadhav was in possession of an authentic Indian passport issued in a false ‘cover’ Muslim name ‘Hussein Mubarak Patel’ which he had used at least 17 times to enter/exit India.
India side is demanding that the ICJ orders the “return” of Commander Jadhav to India. However, Pakistani says that ICJ has repeatedly stated it is not a criminal court of appeal. It has always so far made it clear in all its decisions that, even if consular access was denied, the proper order is for there to be effective review and reconsideration by the local Courts.
Commander Jadhav and his family have been able to seek this at any time since 10 April 2017 in accordance with Article 199 of the Constitution of Pakistan. Instead, India launched proceedings in the ICJ 14 months after he was arrested and a month after he was convicted to seek a ‘stay’ order without a hearing. Why is India asking for an order for “return” in the face of the ICJ’s decision and the independent expert evidence confirming Pakistan has effective review and reconsideration before the High Court and Supreme Court.
India has also failed to explain why the Agreement on Consular Access between India and Pakistan dated 21 May 2008 (which India drafted), and which provides (at Article (vi)) for either State to be entitled to consider a request for consular access “on its merits” where it involves a person implicated in national security matters, does not apply in this case.
India is yet to explain why highly respected UK based Military Law experts are wrong when they say that Pakistan’s High Court and Supreme Court provide an effective review and reconsideration of the Military Court process.
Jhadav was captured in Balochistan in March 2016. He confessed to his association with the Indian intelligence agency – Research and Analysis Wing (RAW) — and his involvement in espionage and fomenting terrorism in Pakistan.
Subsequently, the 48-year-old was sentenced to death by a Pakistani military court on charges of spying and terrorism in April 2017. In May 2017, India moved the ICJ against the verdict.
At the ICJ, a 16-judge bench including Somalian-Muslim Justice Abdulqawi Ahmed Yusuf and India’s Justice Dalveer Bhandari. Former chief justice Tassaduq Hussain Jilani is also an ad hoc judge in this case.
Pakistan will be represented by a delegation led by Attorney General for Pakistan Anwar Mansoor Khan. Barrister Khawar Qureshi (Queens Counsel) will argue on behalf of Pakistan while Harish Salve will give an oral submission on behalf of India. 
The ICJ decision may be delivered by the summer of 2019.
Indian case
India argues that Commander Kulbhushan Jadhav is an innocent businessman who was kidnapped from Iran, brought to Pakistan and tortured to confess that he was a commander in the Indian Navy working with Research and Analysis Wing (RAW), India’s primary foreign intelligence agency.
India argues that it was entitled to obtain consular access for Jadhav as soon as his detention was made public by Pakistan on March 25, 2016. India argues that the trial and conviction of Jadhav for espionage and terrorism offences by a military Court on April 10, 2017, was “a farce”.
India contends that the denial of consular access to Jadhav requires the ICJ to “at least” order his acquittal, release and return to India.
In its written pleadings, India had accused Pakistan of violating the Vienna Convention by not giving consular access to Jadhav, arguing that the convention did not say that such access would not be available to an individual arrested on espionage charges.
Pakistan’s response
Pakistan rejects all of the Indian allegations. Pakistan points to evidence obtained from Jadhav after his arrest and during the criminal process leading to his conviction as amply demonstrating his activities in fomenting terrorism and engaging in espionage within Pakistan.
Pakistan maintains that it would be incompatible with international law for someone sent as a spy/terrorist by a state to be afforded access to officials of that state as India asserts.
Pakistan also points to an express Agreement on Consular Access dated May 21, 2008, between India and Pakistan, which allows each state to consider a request for consular access “on its merits” in a case involving national security.
Furthermore, Pakistan points to the uncontradicted evidence that Commander Jadhav was provided with an authentic Indian passport under a Muslim name by the Indian authorities, as a clear and obvious link between his conduct and the government of India. Such conduct being a blatant violation of international law should bar any claim for relief from a court.
India refuses to reply on this issue and (unconvincingly) describes it as “mischievous propaganda”.
In addition, Pakistan noted that in all of the ICJ’s previous decisions concerning Article 36 of the Vienna Convention on Consular Relations 1963 (which involved death sentences imposed by the USA), the court made it clear that it was not a court of criminal appeal and the presence of “effective review and reconsideration” by domestic courts was an appropriate remedy, even if a breach of the right to consular access had been established.
The high court and Supreme Court provide such review as confirmed by the leading UK-based military law experts.
India has failed to explain why the Agreement on Consular Access between India and Pakistan dated May 21, 2008 (which India drafted), and which provides [at Article (vi)] for either state to be entitled to consider a request for consular access “on its merits” where it involves a person implicated in national security matters, does not apply in this case. Why not? India fails to explain why UK-based military law experts are wrong when they say that Pakistan’s high court and Supreme Court provide an effective review and reconsideration of the military court process.
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