–Pakistan’s lawyer puts India on the mat for failing to reveal true identity of condemned RAW spy Kulbhushan Jadhav
–QC Khawar Qureshi says RAW began its attempts to destabilise Balochistan under Modi’s term
THE HAGUE: Pakistan on Tuesday accused India of using the International Court of Justice (ICJ) for “political theatre” as it urged judges to dismiss India’s case seeking to save spy Kulbhushan Jadhav from execution.
The top United Nations court’s four-day public hearing in the case of the 48-year-old Indian national began on Monday, with India presenting its case first. Pakistan presented its arguments in the case on Tuesday. The four-day trial will end with Pakistan’s closing arguments on Thursday.
The case centres on the fate of Jadhav, who was convicted of espionage by a Pakistani military court and sentenced to death in April 2017. India denies Jadhav is an agent of RAW [Research and Analysis Wing] –the country’s top external spy agency. It has asked the ICJ to order Jadhav’s release because he was denied access to consular help and not allowed to choose his own defence lawyer.
Attorney General of Pakistan Anwar Mansoor Khan on Tuesday argued that Jadhav was an Indian spy sent to Balochistan to destabilise the country. He said that “India’s claim for relief […] must be dismissed.”
Khan told the court that Jadhav ran a network “to carry out despicable terrorism and suicide bombing, targeted killing, kidnapping for ransom and targeted operations to create unrest and instability in the country”.
“His unlawful activities were directed at creating anarchy in Pakistan and particularly targeted the China-Pakistan Economic Corridor,” Khan told the 15-judge bench.
But Jadhav did not act on his own, Khan added. “Rather they were committed at the behest of the Indian state and the government.”
A confession by Jadhav obtained by Pakistani officials “speaks of India’s state policy of sponsoring terrorism in Pakistan,” he said.
Since partition, “India has persistently pursued the policy of trying to destroy Pakistan,” Khan said.
Pakistan is being represented by English Queen’s Counsel Khawar Qureshi, who on Tuesday, asserted that Indian failed to answer important questions on Monday as it did not clarify if he is Kulbhushan Jadhav or Hussain Mubarak Patel.
Hence, Qureshi said, a decision has not yet been made regarding his nationality.
Referring to India’s demand, he questioned how could India demand consular access when it couldn’t even confirm the accused’s nationality: “India should tell why the consular access agreement does not apply to Jadhav.”
He argued that India has moved the world court but it refuses to satisfy Pakistan’s questions as “it is sitting on a weak wall of lies just like Humpty Dumpty”.
Qureshi added that he has represented India in the past but this attitude is “completely new” for him for it has levelled “a baseless allegation” against Pakistan of violating international laws.
He argued that India’s claim of Jadhav retiring at 47 makes no sense and there is a forum to move the high court in this case as per the Vienna Convention.
Qureshi said that under Narendra Modi’s tenure, RAW began its attempts to destabilise Balochistan, and questioned if India carried out any investigation after Jadhav was arrested from Iran.
Why did Jadhav have a passport in a Muslim’s name? he questioned, wondering if there was any evidence to substantiate the allegation that he was kidnapped from Iran before being brought to Pakistan.
Moreover, he questioned if India had any evidence of the nine-hour trip between Iran and Pakistan.
The counsel continued, “A passport in the name of Hussain Mubarak Patel was issued in 2003 and renewed in 2014. The address mentioned on the passport is that of the property owned by Jadhav’s mother.”
He clarified, “Iran has nothing to do with the Jadhav case. Jadhav was arrested from Balochistan and not Iran and the story regarding his kidnapping from Iran is baseless.”
Qureshi also gave an electronic presentation in the world court and presented excerpts from Indian journalists’ Karan Thapar and Parween Swami’s reports published in April 2017 and January 2018, respectively.
Referring to India’s National Security Adviser Ajit Doval’s interview, Qureshi said, “Doval confessed to Indian-sponsored terrorism in Balochistan during his interview.”
“According to Doval, Jadhav played a key role in terrorism in Balochistan,” he added.
‘JADHAV IS AN INNOCENT INDIAN’:
On Monday, a 15-member panel of ICJ judges heard India’s Counsel Advocate Harish Salve at the Peace Palace, the seat of the Court, from 2pm to 5pm PST.
Salve began his case by identifying it as an “unfortunate” matter relating to the life of an “innocent Indian national”. He based his arguments on two broad issues in what he essentially saw as a “simple” case, breach of Vienna Convention on consular access (VCCR) and the process of resolution.
India’s lawyer was quick to label Pakistan strong on rhetoric and blurry on facts, and failing in its propaganda to malign his country. Pakistan was bound to grant consular access at the earliest, but in fact refused to reply to 14 requests made by the Indian government at different times, he said.
Salve said a First Information Report (FIR) was registered against Jadhav as late as April 8 and his confession obtained before the FIR was used as a propaganda machine by Pakistan.
India’s counsel quoted Pakistan’s then adviser on foreign affairs, Sartaj Aziz, several times including his statement regarding the transparency of the trial.
The fact that Jadhav was given a state officer for defence, allowed to question witnesses and all political parties of Pakistan being unanimous in granting the death penalty to a spy, according to Salve, highlighted the political odds against a fair trial.
Former Solicitor General Harish Salve was not only quick to reject all of Pakistan’s claims regarding Jadhav’s role in fomenting terrorism and engaging in espionage within Pakistan, but also to ask the ICJ not to allow Pakistan to indulge in the “passport issue”, as that stood “irrelevant and alien” to today’s proceedings.
Terming Article 36 a vital cog in the wheel of justice, Salve continued to make a case based on human rights, protection of aliens on foreign land and pleaded the court to uphold VCCR, as a powerful tool that ensures the facility of consular access to foreign nationals that have been put to trial in a foreign country.
Pakistan’s frequent reminder of the express agreement signed by the two countries on Consular Access dated, 21 May, 2008 was also rubbished by Salve. The agreement that allows each state to consider a request for consular access “on its merits” in a case involving national security, does not make any reference to the VCCR.
Salve argued that VCCR could be clarified or supplemented by bilateral treaties but by no means diluted, modified or undermined. Neither can any article of a bilateral agreement destroy Article 36 of VCCR, nor does Article 36 commit to any exceptions, charges of espionage included.
“If Article 36 grants rights of consular access in all cases including where allegations of such kind are levelled, then demanding those can’t be an abuse of those rights,” he added.
Stressing the importance of granting consular access before commencement of trial, he regretted that Jadhav was “kidnapped”, detained, interrogated, tried and convicted without being granted consular access. He maintained Pakistan’s approach was regrettable in that the severity of charges did not justify violating the procedural processes of law.
A significant last chunk of Salve’s argument was dedicated to Pakistan’s military courts as he demanded annulment of Jadhav’s conviction and his release.
Salve insisted Pakistan could not hide behind domestic law to violate international obligations. Review and reconsideration was an unworkable remedy in the present Pakistani system, one absent of any due processes, where the institutional bias against Jadhav was unmistakable, he said.
Real relief would be, he added, Pakistan being directed to acquit Kulbhushan Jadhav who Pakistan claims had travelled at least 17 times with his cover name as Hussein Mubarak Patel.
Following the proceedings, Director General for South Asia and Saarc Dr Mohammad Faisal, who attended the Monday hearing, said India’s lawyer had failed to answer any of the questions raised by Pakistan regarding the service or retirement of the Indian navy commander; the authenticity of the Indian passport that facilitated his travel 17 times with a cover name; his sabotage, espionage and terrorism activities that resulted in the killing of thousands of Pakistanis in Karachi and different areas of Balochistan where he was finally arrested.
Jadhav, an on-duty Indian navy officer working for the Indian covert agency Research & Analysis Wing (RAW), was captured from Balochistan in March 2016. He later confessed to his association with RAW, and involvement in espionage and fomenting terrorism in Pakistan
However, India says he was kidnapped from Iran. He was sentenced to death in April 2017, following which India moved the Hague-based ICJ.
A 10-member bench of the ICJ had in May 2017, restrained Pakistan from executing Kulbhushan till adjudication of the case.
Pakistan claims its security forces arrested Kulbhushan from Balochistan on March 3, 2016, after he allegedly “entered Pakistan from Iran”. India, however, maintains that Kulbhushan was kidnapped from Iran where he had business interests after retiring from the Indian Navy.
The hearing in the ICJ will continue until Feb 21. New Delhi will again be given a chance to present its stance on Feb 20, while Pakistan will give final arguments in the case on Feb 21.
It is expected that the ICJ decision will be delivered by summer this year.