ICJ’s order: Legal experts blame FO for ‘poor’ case handling

Published: May 19, 2017
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Kulbhushan Jadhav. VIDEO SCREENGRAB

Kulbhushan Jadhav. VIDEO SCREENGRAB

ISLAMABAD: In the wake of the International Court of Justice’s [ICJ] order to stay Indian spy Kulbhushan Jadhav’s execution, the legal experts are blaming the foreign office’s officials for handling the case poorly and not giving proper advice to the relevant quarters.

A senior lawyer, who has vast experience of international arbitration cases, believes that it is need of the hour that the legal wing of the foreign office be revamped as its officials have failed to give proper advice to deal with Jadhav’s case.

“If Indians could show reservations over the ICJ jurisdiction on Kashmir, Pakistan might also adopt the same approach in the matter related to the trial of terrorists by civilian and military courts,” he said.

A senior official revealed to The Express Tribune that India has been successful in managing the ICJ’s registrar office, which has vast power to fix cases before the court. “We were very surprised how swiftly Jadhav’s case was fixed before the ICJ,” he said.

ICJ orders Pakistan not to execute Jadhav until its final order in case

It is learnt that Khawar Qureshi, who represented Pakistan before the ICJ, was the choice of the foreign office and not the Attorney General for Pakistan (AGP) office as the latter had recommended some other counsel.

A senior official in law ministry admitted that Qureshi did two mistakes.  He did not nominate ad hoc judge before the hearing and he did not respond to the argument of Indian lawyer regarding the 2008 bilateral agreement between India and Pakistan on consular access.

The agreement says both the states will not give consular access to terrorists. However, Haresh Salve, counsel for India, contended that the agreement was not registered with the United Nations.

“Here, Qureshi could refer to three cases in which the ICJ had admitted unregistered bilateral agreements,” said the official. “Similarly, he could submit written arguments before the ICJ to assure the UN’s court that Pakistan would not hang Jadhav till its final decision.”

“In view of this assurance, the ICJ’s order on halting the execution could be avoided,” the official added.

An official said it was also foreign office’s failure that it failed to register the bilateral agreement with the UN despite passage of all these years. A source said the law ministry was considering name of Jordan’s former prime minister Awn Shawkat Al-Khasawneh – who has already performed as the ICJ judge in the past – as Pakistan’s ad hoc judge.

ICJ to announce verdict on Jadhav case today

Legal experts recommend that as the government authorities now have couple of months to evolve future strategy, they should not take matter regarding appointment of an ad hoc judge in haste.

They also wonder why Pakistan wants to appoint foreigner as ad hoc judge when every state prefers to nominate its own lawyers. They are urging the AGP office to consult local lawyers, who have good experience of international arbitration, before finalising legal strategy.

One Indian writer, in his book, has called Haresh Salve ‘invincible’. The lawyer has charged only one Indian rupee as fee in this case.   Senior lawyers are urging the government to hire legal team comprising senior jurists to contest the case before the ICJ.

Pakistan Bar Council executive member Raheel Kamran Sheikh said it was matter of concern that success rate of Pakistan in international arbitration cases was 2 per cent while India’s success rate was 60 per cent.

“We lost important cases at the international forum in the last couple of years. Likewise, we spent more than one billion rupees on lawyers’ fees in those cases,” he said.

Raheel said mishandling of Jadhav’s case was a classic example of how in the power struggle between military and political institutions, gaps in the foreign policy and national security perspectives had grown.

“And they [gaps] have grown to such an extent that if the situation is not arrested and improved immediately in the national interest by both the centres of power, irreparable damage shall be caused to the state,” Sheikh said.

A senior official in the AGP office, who was not authorised to speak to the media, said though India got stay on Jadhav’s execution, ultimately Pakistan would win and India would be embarrassed.

“We are in no hurry to execute him [Jadhav] as he is making more disclosures,” he said, adding that India wanted ex parte order in this case; therefore, Pakistan preferred to present its point of view.

Repercussions of not accepting ICJ order

Legal experts believe Pakistan may face great embarrassment if it does not comply with the ICJ’s decision, adding that the UN Security Council has the authority to take action against such states.

“If you don’t comply with the ICJ’s verdict then the world will abuse you as a rogue state,” said a senior lawyer. He referred to Albania, which faced dreadful consequences for not obeying the ICJ’s order.

“Those who are saying China will veto any move against Pakistan, should be aware that Chinese judge in ICJ gave verdict in favour of India by voting for provisional measures,” he added.

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Reader Comments (11)

  • Mir Masjidi
    May 19, 2017 - 9:39AM

    Like for international cricket matches, we cannot strategize for anything properly, partly due to taking a casual approach when sobriety is needed and a lot to do with vested interests and favoritism when cold calculation and hard objectivity is the need of the hour.Recommend

  • ab
    May 19, 2017 - 10:07AM

    no one can blame India, they took care of their interest. but who will take care of Pakistan’s interest. Recommend

  • Raj - USA
    May 19, 2017 - 10:31AM

    Everyone knows that it is Pakistan’s army that arrested Kulbubshan from Baluchistan or kidnaped from Iran. It is the army that has been having him in their custody and no one in the civilian government had access to him or ever seen him. The army prosecuted him in total secrecy and no one in the civilian government knows what evidences were considered and established, the witnesses who testified and were cross examined, the entire procedure of how the trials were conducted in the army court. No one even knows that if Kulbubshan is still alive or has already been killed by the army or died during the torture process to make him confess. Gen. Bajwa said in a seminar that it was the army that even arranged for lawyers to represent Pakistan at ICJ. All briefings and instructions to the lawyer must have been given only by the army and not by the civilian government as the civilian government knows nothing on Kulbubshan’s army court trials.

    ICJ allowed 90 minutes to both India and Pakistan to present their side and make their arguments. Lawyer representing India made full use of the full 90 minutes allotted time. Pakistan’s lawyer finished his arguments in just 50 minutes and did not utilize the remaining 40 minutes. Do you know the reason? The reason is that he had planned to show the video confession of Kulbubshan and discuss on this in the remaining 40 minutes time and had prepared accordingly. This is what the army wanted because they wanted to show that the confessional video they had produced is high quality proof. ICJ disallowed this and Pakistan’s lawyer did not know what to do in the remaining 40 minutes time and just wasted it. Recommend

  • Hakim
    May 19, 2017 - 11:10AM

    FM of Pakistan Mr. Nawaz Sharif who is also PM should resign. Recommend

  • Kashif Siddiqui
    May 19, 2017 - 12:18PM

    Dear All

    ICJ decision’s is not final verdict. Might there were some mistake in proceedings by Pakistani Authorities, but it does not mean that Indian instance is right.

    However we should wait for the final outcomes whether ICJ admit Indian point of view or Pakistani point of view both of us should respect it.

    It is not the matter of win or lose. bottom line terrorism should not be supported by any one.

    Kashif SiddiquiRecommend

  • Parvez
    May 19, 2017 - 2:02PM

    Those who blame the government for mishandling the case are mistaken….they should think again because the government is not stupid……it possibly got the result it actually wanted.Recommend

  • f35
    May 19, 2017 - 2:08PM

    Raheel said mishandling of Jadhav’s case was a classic example of how in the power struggle between military and political institutions, gaps in the foreign policy and national security perspectives had grown.+
    +++++++++++++++++++++++++++++++++++++++++++++++++++
    Read Read Carefully lots of wisdom in those lines.Recommend

  • Ashraf
    May 19, 2017 - 2:31PM

    Once CPEC is completed Jadhav will be found guilty.Recommend

  • Ch. Allah Daad
    May 19, 2017 - 5:54PM

    Those who are blaming Mian Sahib know nothing about this case. It’s Kargil Part 2. Recommend

  • s.khan
    May 19, 2017 - 7:09PM

    ICJ has just stayed the execution. They have not given a verdict on the case.
    Wait for the verdict before resorting to fingers pointing and lamenting the
    ineptness of the government. Recommend

  • Manoj Kaul
    May 19, 2017 - 10:51PM

    ICJ cannot take up Kashmir case on its own. Someone will have to file a case and you cannot do so because you are already in illegal possession of a large portion of J&K state.Recommend

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