Kulbhushan Jadhav case: Pakistan files counter-memorial in ICJ

Published: July 18, 2018
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Self-confessed Indian spy Kulbhushan Jadhav. PHOTO: FILE

Self-confessed Indian spy Kulbhushan Jadhav. PHOTO: FILE

ISLAMABAD: Pakistan on Tuesday submitted its second counter-memorial to India’s arguments on the conviction of RAW agent Kulbhushan Jadhav before the International Court of Justice (ICJ) in The Hague.

Sources told The Express Tribune that Pakistan rebutted Indian’s allegations that Kulbhushan’s wife and mother were ‘mistreated’ when they visited to meet him last year.

Pakistan also raised the jurisdiction issue of the ICJ that India had no case to plead because it never denied that Jadhav was travelling on a passport on a cover or the assumed Muslim name ‘Mubarak Patel’, the sources added.

Moreover, some international legal experts’ opinions have also been referred to in the counter pleadings to justify that effective review of the decisions of military courts is potentially available before high courts of Pakistan. The reply has been submitted by Director India at the Foreign Office Dr Fareha Bugti along with Khawar Qureshi, QC, the agent representing Pakistan at the ICJ.

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The ICJ, a world court that sits at the Peace Palace in The Hague, is seized with an Indian complaint on the conviction of the Indian spy.

Commander Jadhav was captured in Balochistan in March 2016 and he later confessed to his association with Indian intelligence agency — Research and Analysis Wing (RAW) — and his involvement in espionage and fomenting terrorism in Pakistan.

In early 2017, the Field General Court Martial sentenced Jadhav to death, which was confirmed by Chief of the Army Staff Gen Qamar Bajwa on April 10 this year.

On January 23, the ICJ gave a timeline to both Pakistan and India to file another round of memorials in the case.

Qureshi had briefed Prime Minister Nasirul Mulk two weeks ago about the developments in the case. Attorney General for Pakistan Khalid Javed Khan and other senior officials also attended the meeting.

On April 17, India submitted a second memorial before the ICJ. It is learnt that Khawar Qureshi has drafted the counter-memorial.

After the submission of the second memorial, the ICJ will fix the matter for the hearing which is likely to take place next year.

A senior lawyer, who has expertise in international litigations, believes that there is no chance of hearing the case this year.

Even the hearing of other matters has already been fixed until March or April next year, therefore, Kulbhushan Jadhav’s case will be listed next summer, he added.

Meanwhile, in an interview with an international newspaper published on July 16, Qureshi had given details of the written submissions in the case.

He stated that the ICJ has also been asked to consider whether India has behaved illegally by providing Jadhav with an authentic Indian passport in the name of ‘Hussein Mubarak Patel’.

An eminent British expert has provided evidence that Jadhav used the passport at least 17 times to go to and from India.

He confirmed that the passport was issued by Indian authorities. The inference is that India gave Jadhav the false Muslim identity for improper purposes. India’s answer has been to say it does not need to answer this point.

“The passport issue has also been raised by respected Indian journalists Praveen Swami and Karan Thapar, recently. They have been accused of spreading ‘propaganda’ and, sadly, also have been called as ‘traitors’ for doing their job as professional journalists.

No real answer has been given on this point, as well as most of the other arguments.

Qureshi in his interview also submitted that respected military law experts in the UK have given evidence concerning Pakistan’s military court system, with reference to the military courts in the UK, US, India and other key jurisdictions.

They have confirmed that effective review of the decisions of Pakistan’s military courts is potentially available before high courts of Pakistan.

“I submitted on May 15, 2017 and repeat [it now], the ICJ has never ordered “acquittal or release” (as India “at least” seeks), and all its previous decisions indicate it would never do so.”

Likewise, Qureshi says that “India says Jadhav recently retired from the Indian navy (but not when or why), and suggests he was kidnapped from Iran and smuggled into Pakistan to extract a false confession.”

“India says the entire legal process against him in Pakistan was unfair and demands that the ICJ ‘at least’ orders his acquittal or release. India says Jadhav should have been given immediate consular access.

“Pakistan says Jadhav was a naval commander who was working for RAW when arrested. The ICJ has been asked to consider whether individuals suspected of espionage had in practice often been excluded from the right to consular access—an argument never raised or considered previously.

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“The ICJ has now exceptionally invited all states that signed the VCCR to respond to Pakistan’s argument on this point, which is based upon the material practice of the US, Soviet Union and China, including the famous Gary Powers-U2 case, as well as commentaries from experts in this field.”

He says, “In addition, Pakistan and India signed an express agreement on Consular Access in 2008 (at the suggestion of India), which clearly qualifies consular access in situations involving issues of security — consistent with the state practice I mentioned.

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“I was told that some ‘expert’ commentators in the media had suggested I never referred to the 2008 Agreement during the May 15, 2017 hearing. If they had watched the live broadcast or read the transcript they would have seen I quoted it in full, and explained why it applied, so as to flag up Pakistan’s key arguments on the merits for the future. As the court made clear in paragraph 60 of its order, it was not considering the substantive arguments on May 15, 2017 in any event — it was solely concerned to preserve the status quo,” he adds.

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