Kulbhushan Jadhav given death sentence in ‘opaque trial’, should be released: India to ICJ

The Hague: India on Monday told the International Court of Justice (ICJ) that its national Kulbhushan Jadhav was sentenced to death by a Pakistani military court in an “opaque trial” and should be forthwith released by Pakistan for violation of Vienna Convention on consular access.

“India submits that Pakistan has egregiously violated Article 36 of the Vienna Convention and demands that Jadhav be released forthwith,” Indian Advocate Harish Salve argued before the world court.

Seeking reversal of his conviction, Salve submitted that Pakistan by not apprising Jadhav, a former Indian Navy officer, of his rights has violated the Vienna Convention.

Since Pakistan is one of the States which exercises death penalty to foreign nationals, the State should make sure that Jadhav should be informed of his rights and more importantly allowed consular access since “death penalty is irreparable”, he said.

While pointing to violations of the Vienna Convention, the Indian advocate said that Pakistan had also not complied with the provisions of the 2008 bilateral agreement with India.

Jadhav is being used as a pawn by Pakistan to build a narrative against India, Salve said as the ICJ started a four-day public hearing in the Kulbhushan Jadhav case.

“Pakistan’s conduct doesn’t inspire confidence that Jadhav can get justice there. Pakistan has in custody an Indian national who has been publicly portrayed to be a terrorist and Indian agent creating unrest in Balochistan. Pakistan used Jadhav to build a narrative against India, a pawn to further their propaganda,” he told the world court.

“The rights of Kulbhushan Jadhav and India have been brazenly violated by Pakistan. Consequences must follow,” Salve said.

“Article 36 of the Vienna convention is a facet for due process. The Vienna Convention is a powerful tool. Article 36 becomes a vital cog in the wheel of justice. By 1988, Article 36 was assumed to have the stature of a principle of the International law,” the Indian lawyer said.

In his detailed deposition, Salve submitted that Jadhav’s confession was aired even before his trial or even before an FIR was filed against him.

“Jadhav’s purported confession clearly appears to be coaxed. India reminded Pakistan that it is their government which hasn’t ratified the SAARC Convention on Legal Assistance in Criminal Matters,” he observed.

Arguing that Islamabad is yet to reveal the incident for which Jadhav has being charged with espionage, Salve said, “Pakistan’s conduct of attempting to play a doctored tape of confession in these proceedings is for propaganda and Pakistan is abusing its rights in this case.”

He stated that Pakistan is “embarrassed to disclose” the judgment in the Jadhav’s case and the charges and the evidence against him.

“The story has always been strong on rhetoric and weak on facts,” he added while presenting Indian case at the ICJ.

Jadhav was not only denied consular access, but he was also not briefed about his rights while he was detained, Salve said, noting that Pakistan has only cited that the Indian national was caught with a “passport under a different name”.

The Indian advocate while presenting the case in the world court argued that Pakistan has been restrictively interpreting the Vienna Convention.

Underlining that there was a violation of human rights of Jadhav, Salve said that Jadhav has endured three years of trauma.

Pointing at Pakistan’s allegations of espionage against Jadhav, Salve stated that there is no exception in the Vienna Convention for spies as serious charges like this need a procedural safeguard.

“Pakistan should have provided a substantial explanation for why it needed three months for providing consular access, upon which it could have claimed that it has complied with the treaty obligation. Even on the erroneous premise that paragraph four applies, Pakistan has not complied with the treaty obligations,” Salve argued.

Salve appealed to the court to grant relief to Jadhav in the backdrop of the fact that his trial was conducted by a military court.

Salve said, “Pakistan uses military courts to try civilians, and this was done by amending Pakistan’s constitution. The military courts have been reinstated even after European courts [International Commission of Jurists] have expressed their reservations with the idea. They have emphasised the idea that military courts should only restrict to military trials, and civilians should not be tried in them at all.”

“A foreign detainee has the right to life, the right to a fair trial and an impartial judiciary,” he said, observing that 161 civilians have been sentenced to death by military courts in “opaque proceedings” in the last two years.

Salve also stated that India has always offered consular access to Pakistan even when its citizens have been caught red-handed in acts of terrorism.

“It is another matter that Pakistan has never availed of the same. Despite repeated attempts by India to sign a treaty for mutual legal assistance, Pakistan has refused. The reason is that there are several pending cases that involve terrorism,” Salve argued.

Jadhav was awarded death sentence by a Pakistani military court in an “opaque trial” and Pakistan is in “egregious violation” of the Vienna Convention on Diplomatic Relations, Salve submitted while presenting the Indian case.

Salve, a former Solicitor General of India, also urged the ICJ to declare as “unlawful” the continued custody of Jadhav without consular access.

Jadhav has been accused by Pakistan of spying, a charge vehemently contested by India which says even his date of arrest is “not known”. India has maintained that Jadhav was a businessman and he was kidnapped by the Pakistani intelligence agencies from Iran.

“Jadhav had to endure trauma for three years. Pakistan abused his human rights,” Salve told the court.
“Pakistan is embarrassed to disclose the judgement in the Jadhav case, the charges against him, and the evidence. The story has always been strong on rhetoric and weak on facts,” Salve told the world court.

“Pakistan did not provide a lawyer to Jadhav, as was confirmed by the Army Chief in a statement.

Subsequently, Pakistan announced death after a trial conducted in an opaque manner. No trial document was given to India and Pakistan ignored India’s request for case paper. India moved the ICJ after Pakistan ignored 13 reminders,” said the Indian lawyer.

“Finding itself bereft of any substantive defence, Pakistan has raised issues that have no relevance to these proceedings. There is no manner of doubt that Pakistan was using this as a propaganda tool. Pakistan was bound to grant consular access without delay,” he said.

Salve continued: “Having failed in its propaganda against India is a feeble attempt to tackle global criticism on its role in cross-border terrorism, Pakistan seeks to raise issues such as India’s refusal to allow it to indulge in a freewheeling inquiry into high functionaries without disclosing fundamental elements of the offences and passports it allegedly seized. It is an unfortunate case where the life of an innocent Indian is at risk.”

Salve further claimed that 13 reminders were sent by India to Pakistan seeking consular access to Jadhav, none of which, he said, were responded to.

“On 30th March 2016, India reminded Pakistan of its request of consular access (for Jadhav) and received no reply. 13 reminders were sent by India on various dates,” he said.

He also stated that facts seem to suggest that even Jadhav was not made aware of his right to consular access.

“Pakistan filed an FIR in the case a month after the date it (Pakistan) said that Jadhav was apprehended. The host country did not inform Jadhav of his rights. In a statement put out by the Pakistan Army Chief, it was clear that Jadhav was not provided with a lawyer to fight his plea. On 19th June 2017, India responded to the request for assistance in the investigation and pointed that not only Jadhav had been denied consular access but no credible evidence have been provided by Pakistan to show his involvement in any act of terrorism,” he said.

“Also, a (purported) confession of Jadhav was aired even before FIR was filed and the trial resumed. His purported confession clearly appears to be coaxed. India reminded Pakistan that it’s the Pakistan government which hasn’t ratified the SAARC Convention on legal assistance in criminal matters,” added Salve.

The senior advocate argued that despite repeated requests, no charge sheets or material from the trial court hearing has been provided to India.

The 48-year-old former naval officer was sentenced to death by a Pakistani military court on charges of espionage and terrorism on April 11, 2017, following which India moved the ICJ, challenging the verdict. Subsequently, on May 18, 2017, a 10-member bench of the ICJ restrained Pakistan from executing Jadhav till the adjudication of the case.