'Kulbhushan Jadhav Convicted By Military Court Without Due Process', Harish Salve For India Tells ICJ

Yesterday, Senior Advocate Harish Salve submitted arguments for India before the International Court of Justice in the hearing of Kulbhushan Jadhav case.

India has approached the world court against the move of Pakistan to execute the death sentence awarded to Jadhav on espionage charges.

Salve submitted yesterday that the main issue in the case is whether Pakistan violated its obligations under Article 36 of Vienna Convention on Consular Relations 1963 by refusing India consular access to Jadhav when he was under detention.

He started his arguments saying that the case is an "unfortunate matter relating to the life of an innocent Indian".

"Construction of Article 36 of Vienna Convention, applying its language to conduct of Pakistan and evolving jurisprudence of Article 36 are the relevant issues", said Salve.

Key points from Salve's submissions are :

On violations of Vienna Convention

• Article 36 of the Vienna Convention says that a country must be informed of arrest of its citizens by another country. But Pakistan did not inform India of Jadhav's arrest.
• Pakistan was bound to give consular access. Even Jadhav was not informed of his right of consular access.
• India had sent at least 13 reminders asking for consular access. All were repeatedly ignored by Pakistan
• Article 36 does not give any exception to charges of espionage.
• India has always given consular access to Pakistan whenever its citizens were caught by India on charges of terrorism. Pakistan did not reciprocate in Jadhav's case.
• Article 36 is a powerful tool which ensures the facility of consular access to foreign nationals who have been put on trial in a foreign court. This has been egregiously violated by Pakistan.

On lack of material against Jadhav

• There are no credible charges against Jadhav. Pakistan's version is stronger on rhetoric and weaker on facts.
• Jadhav's confession was obtained before the registration of FIR
• Pakistan has not yet disclosed the judgment convicting Jadhav. They are embarrassed to disclose it.

On illegality of military court's trial against Jadhav

• Pakistan uses military courts to try civilians. Their Constitution has been amended to permit this. This is against basic canon of due process that military courts should be used only to try military personnel.
• Jadhav's trial by military court hopelessly fails to satisfy even minimum standards of due process and should be declared "unlawful"
• A foreign detainee has right to life, right to fair trial and an impartial judiciary. Pakistan's military courts have put 161 civilians to death over last two years through opaque process.

"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," Harish Salve said in court. 

"India submits that Pakistan has egregiously violated Article 36 of the Vienna Convention and demands that Jadhav be released forthwith", he said while concluding his oral arguments.

Pakistan will submit its arguments today.

Indian National, Kulbhushan Sudhir Jadhav was sentenced to death in Pakistan by a court martial on allegations of "espionage, sabotage and terrorism". On 18th May 2017, the UN Court had directed Pakistan not to execute Yadav pending the final decision in these proceedings.

Pakistan claims that its forces arrested Jadhav from Balochistan province on March 3, 2016, after he allegedly entered from Iran.However, India maintains that Jadhav was kidnapped from Iran where he had business interests after retiring from the Navy.  

India says that since the case involves the interpretation and application of a multilateral international treaty - Vienna Convention on Consular Relations- ICJ can exercise jurisdiction, regardless of Pakistan's consent.