Pakistan on Saturday issued a fact-sheet on the Indian spy Kulbhushan Jadhav's involvement in terrorist and subversives activities against Pakistan ahead of a crucial public hearing at International Court of Justice (ICJ), the Hague, from Monday. The ICJ will hold public hearings on the Indian spy Kulbhushan Jadhav's case from February 18 to 21 at the Hague. The case was brought by India against Pakistan.
Diplomatic sources said that Pakistan has prepared a strong team headed by Attorney General for Pakistan to represent the country in the ICJ which had already reached the Hague. Khawar Qrueshi, a noted international lawyer, will be Pakistan's key counsel to represent the country in the ICJ who will confront India's Harish Salve.
Jadhav was arrested by Pakistan security forces from Balochistan in March 2016 after he entered the country from Iran. The Indian spy was sentenced to death by a military court on charges of espionage and terrorism in April 2017. India, however, moved the ICJ in May the same year against the verdict. On January 23, 2018, the ICJ issued a timeline to both Pakistan and India for filing another round of memorials in the case. The hearings will take place from February 18 to February 21, 2019, at the Peace Palace in the Hague.
During the public hearing, India would respond to the key six points to be raised by Pakistan. The key questions are given as following:
a. India says Commander Jadhav was an innocent Indian national who was kidnapped from Iran to make him confess to being an Indian RAW agent. India has failed to make good this allegation despite repeated requests for evidence that he was kidnapped - Why not?
b. India says Commander Jadhav retired from the Indian Navy. India has failed to explain when/why he retired (he was only 47 years old when arrested). Why not?
c. 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 has been asked this question many times (even by highly respected Indian senior journalists such as Praveen Swami and Karan Thapar) but it simply says this is "irrelevant" or "mischievous propaganda." India eventually said the passport was "clearly a forgery" but refuses to explain this statement, or why a highly credible independent UK expert is wrong when he says it is an authentic Indian passport issued by the Indian authorities. Why not?
d. India demands that the ICJ orders the "return" of Commander Jadhav to India. However, the 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?
e. India has 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. Why not?
f. India fails 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.
India, in its previous arguments before the ICJ, maintained that Commander 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 India's Research & Analysis Wing (RAW - India's primary foreign intelligence agency).
India also claimed that it was entitled to obtain consular access to Commander Jadhav as soon as his detention was made public by Pakistan on 25 March 2016. India has also raised objection on the trial and conviction of Commander Jadhav for espionage and terrorism offences by a Military Court on 10 April 2017, being "a farce." India contended that the denial of consular access requires the ICJ to "at least" order the acquittal, release and return to India of Commander Jadhav.
However, Pakistan in its arguments rejected all of India's assertions. Pakistan points to evidence obtained from Commander Jadhav.
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 21 May 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 un-contradicted evidence that Commander Jadhav was provided with an authentic Indian passport in a 'cover' 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 points to the fact 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 of Pakistan provide such review, as confirmed by leading UK- based military law experts.
AFP adds: The ICJ's decision will likely come months after this week's hearings.
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