Jadhav sentence human rights violation: Key points of India's argument at ICJ

The Hague (Netherlands): The International Court of Justice (ICJ) on Monday began hearing India and Pakistan in the Kulbhushan Jadhav case.

The ICJ, which is holding public hearings in the case at the Great Hall of Justice in Peace Palace at The Hague in Netherlands, has given 90 minutes each to India and Pakistan to present their case.

India will present its case from 1:30 to 3:00 pm IST and Pakistan from 6:30 to 8:00 pm IST.

Jadhav, a former Indian Naval officer, was sentenced to death by a Pakistani military court on April 10, 2017, allegedly for spying for Indian intelligence agency Research and Analysis Wing (R&AW).

Highlights:

India's attorney Harish Salve

• Salve wraps up his argument, says India submits that it has a strong prima facie case pertaining to ICJ jurisdiction and to the merits of the case, seeks provisional measures until the court has adjudicated the case.

Salve asks the court to rule that -
1. Pak should take all measures necessary to ensure that Jadhav is not exceuted
2. Report to the court about its action in pursuance of first point
3. No action should taken which prejudices Jadhav’s and India’s rights

• Salve reminds the court that Jadhav has neither consular access nor legal representation 'even at this stage'.
• Even the existence of any other remedy in the domestic law of Pakistan does not bar this court from having jurisprudence in this case, Salve said.

• “The bigger the charges, the more the need for punctilious adherence to the conventions. The Vienna Convention embodies a vital code of conduct that will given to a person arrested in another state. Violation of the rights of individual under Article 36 is a violation of the rights of the sending state,” he added.

• The trial was conducted without informing the individuals his rights and also without consular access to India, which is again in violation of the convention, Salve argued.

• There are multiple arguments through which it can be established that ICJ has the jurisprudence to hear the case, the Indian lawyer stated.
• The law provides for all disputes arising out of the Vienna convention is mandated to be heard by ICJ. Thus the court would have jurisdiction, prima facie, in listening to the case, Salve argued.
• Salve said that the need for consular access to a person charged for terrorism is all the more important, based on the court’s previous observations and judgements.
• India refutes all allegations, and continues to say that Jadhav was kidnapped from Iran and the case is based on a confession extracted from him.
• In its submission to court, India has enclosed an article where Pakistan has said the verdict was based on irrefutable evidence, that it would not be overturned and that Pakistan would stand by the order.
• “The appeal filed by Jadhav’s parents was in desperation, without knowing the charges or the evidence against him. It is unknown in case of Jadhav as to who will appeal for clemency. It is farcical to allege that Jadhav has committed serious offences,” Harish Salve said.
• "There is no assurance that until this court is in session, that Jadhav would not be executed. Thus, there is need for intervention", Salve argued.
• There have been three instances where the ICJ instituted measures:

Plausibility context in Costa Rica vs Nicaragua case; Belgium and Senegal standard of plausibility.

In Paraguay vs USA, the court decided that government of US was asked to take steps to give rights of access of Paraguan national.

In Germany vs USA, court held that execution of the German national was an irreparable damage to justice.

• Pakistan has refused consular access and also failed to provide evidence and documentation from the so-called trial, which has made India unable to represent Jadhav illegally, Salve said.
• India's attorney Harish Salve argued that the present situation was 'grave' and that is why India had sought the intervention of the ICJ. There have been 3 instances where the court has entertained cases pertaining to the violation of Vienna Convention, Salve said.

Indian lawyer Deepak Mittal

• India asked the ICJ to immediately suspend the death sentence of the former Naval officer.
• Under para 1 of article 36, the court has jurisdiction to rule on all cases pertaining to the Article. Thus, he said, India is relying on the court for a decision.
• Stating that the provisions of Article 36 of the Vienna Convention are sacrosanct, Mittal argued that Pakistan has violated all its provisions. He said that India was repeatedly denied consular access. He claimed that Pakistan had thrown to the wind human rights 'treated as basics' around the world.
• “We hope that the court will provide provisional measures stopping the decision taken by after a farcical trial in Pakistan in violation of the rights given to Jadhav and to India,” Mittal said.
• “By its timely action, the court has given hope to the entire country and the innocent family of the soldier,” he added.
• “The fact that hearing is taking place within seven days of request acknowledges the urgency of the issue,” Deepak Mittal, representing India in the top UN court, said.
• Deepak Mittal, who is representing India in the International Court of Justice, said that the trial of Kulbhushan Jadhav by Pakistan military court was farcical and urged for provisional measures.