Kulbhushan Jadhav’s Trial in Pakistan is Farcical with No Credible Evidence: India
| Onkareshwar Pandey - 18 Feb 2019

Must Revoke the Death Sentence Awarded To Jadhav: India

Four days public hearing of Jadhav case begun in The Hague

Amid the extremely high tension after the horrific suicide attack in Pulwama, this is the first time that the two countries are literally facing eyeball to eyeball in the Great Hall of Justice in the Peace Palace in The Hague, Netherlands.

 

Onkareshwar Pandey

Indian Observer Post

New Delhi/The Hague, February 18, 2019: India has accused Pakistan on three accounts- One - for breach of Vienna Convention, and Two – Failing to provide consular access and Third – on the process of resolution. India’s Ex-solicitor general Harish Salve said this, while representing India at the International Court of Justice, where the public hearing of Kulbhushan Jadhav case bagun on Monday.

Amid the extremely high tension after the horrific suicide attack in Pulwama, this is the first time that the two countries are literally facing eyeball to eyeball in the Great Hall of Justice in the Peace Palace in The Hague, Netherlands.

Jadhav, a retired Indian Navy officer, was sentenced to death by a Pakistani military court on charges of espionage and terrorism in April 2017. India moved the ICJ in May in 2017 against the "farcical trial" by the military court of Pakistan against Jadhav. The ICJ had stayed Jadhav’s execution and admitted the case, a shot in the arm for India.

The ICJ has set a timetable for the public hearing in the high-profile case from Febraury 18 to 21 at the Peace Palace in The Hague, the Netherlands.

"Pakistan's story is solely based on rhetoric and not facts," said Harish Salve, adding that Jadhav's continued custody without consular access should be declared unlawful.

Putting his case strongly in the top UN court to direct Pakistan to revoke the death sentence awarded to Jadhav for on the allegations of espionage, Salve said, “Jadhav's trial by a Pakistani military court "hopelessly failed to satisfy even the minimum standards of due process. And No "credible evidence" was provided by Pakistan to show his involvement in any act of terrorism and Jadhav's purported confession clearly appeared to be "coerced."

The oral hearing on Indian national Kulbhushan Jadhav, 48, in the International Court of Justice,

Comes soon after a terror incident in South Kashmir’s Pulwama, where at least 40 security personnel lost their lives in a suicide attack by Pakistan-based outfit Jaish-e-Mohammed.

"It is an unfortunate case where the life of an innocent Indian is at risk," ex-solicitor general Harish Salve, who was representing India, said.

The hearing on Kulbhushan Jadhav case in the International Court of Justice (ICJ) is very important and has become highly sensitive for India after the Pulwama terror attack, and it could stoke fresh tension between the two countries.

All eyes will be on the ICJ for four-days, when the public hearing of this case will conclude.

India aims to demonstrate to the court that Pakistan’s refusal to grant Jadhav consular access prevented him from adequately defending himself.

While the ICJ will not be deliberating whether Jadhav is a spy or not, India seeks an annulment of the Pakistani military court’s order on Jadhav and will hope that the ICJ will rule that the trial was “illegal’’.

India has argued that the trial of Jadhav was “farcical’’ and “unjust’’ and “In egregious violation of the rights of consular access under the Vienna Convention,’’ which has led to the serious miscarriage of justice.

Senior Advocate Harish Salve, the lead Indian counsel, used his three hours of time before the 16 judges on Monday to build this case brick by brick. Pakistan now has to prove to the ICJ that Jadhav was given a fair hearing.

The reverberations of the Pulwama suicide bombing have spread far and wide and Jadhav's case has become a rallying point for the Indian community in the Netherlands and other parts of the world.

India has already upped its diplomatic offensive against Pakistan, and is well prepared to give befitting reply to Pakistan over the trial of Kulbhushan Jadhav on the floor of the International Court of Justice in the next four days when Pakistan will also try to make and prove the case against Jadhav and will try to justify the sentenced to death given by a Pakistani military court on charges of espionage to him.

On the first day of the hearing, India strongly questioned the trial and death sentence given to Jadhav by a Pakistani military court, saying, “The Pakistani military court "hopelessly failed" to satisfy even the minimum standards of due process and requested the International Court of Justice to declare it "unlawful".

Alleging Pakistan for using the confession document as propaganda, Salve said, “Pakistan has disrespected the Vienna Convention.”  Salve read out the various sections and articles of the Vienna Convention under which foreign prisoners fall.

"Article 36 of the Vienna Convention says that a country must be informed about the detention of its citizens but Pakistan did not inform India about his arrest."

"The Vienna Convention is a powerful tool that ensures the facility of consular access to foreign nationals who have been put on trial in foreign trial," Salve said.

“India had sent 13 reminders to Pakistan for consular access to Jadhav, but Islamabad is yet to accede. There is no manner of doubt that Pakistan was using this as a propaganda tool. Pakistan was bound to grant consular access without delay," Salve said.

During the hearing, Salve said, “Pakistan claims that its security forces arrested Jadhav from restive Balochistan province on March 3, 2016 after he reportedly entered from Iran. However, Pakistan filed the FIR almost a month after the arrest of Jadhav.”

"In April 2016 and FIR was registered against Jadhav. In May 2016, Jadhav was interrogated, and India sent reminders for consular access across May, June, and July," Salve says.

"India and Pakistan have a bilateral agreement on consular access. But without the consular access, India has no information on what happened to Kulbhushan Jadhav in Pakistan," Salve said. \

“That the ICJ has already upheld the importance of consular access under Article 36 in two previous cases LaGrand (Germany vs USA) and Avena (Mexico vs USA). This quite plainly, is an egregious violation of Pakistan's obligations under Article 36 of the Vienna Convention," said Salve.

"Bilateral treaties cannot modify Article 36 of Vienna Convention. It could only supplement it," Salve added.

Pakistan should have provided a substantial explanation for why it needed 3 months for providing consular access, upon which it could have claimed that it has complied with treaty obligation, Salve said.

India maintains that Jadhav was kidnapped from Iran where he had business interests after retiring from the Navy. Jadhav's sentencing had evoked a sharp reaction in India.

Salve argued that Pakistan did not uphold the Article 36 of the Vienna Convention that states consular access applies all nationals, regardless of espionage claims in Jadhav's case.

"They at one point said they might consider it if India assisted their investigation into him being an Indian spy, asked for evidence of bank accounts, phone numbers, etc," he said.

"Inhuman detention is violation of universal rights," Salve said.

He said Pakistan offered to allow Jadhav's family to visit him, the terms were agreed and the meeting was held on 25 December, 2017.

"India was dismayed at the manner the meeting with Jadhav's family was conducted and wrote a letter on 27 December marking its protest," he said.

Pakistan didn't send any details of the probe conducted by the Joint Investigation Team before informing the Indian side about the death sentence handed over to him. Jadhav was not appointed any lawyer during his trial by the Pakistani military court either, he said.

"If Article 36 grants rights of consular access in all cases including where allegations of such kind are leveled , then demanding those can't be an abuse of those rights," Salve said.

Jadhav's trial by military court hopelessly fails to satisfy even minimum standards of due process & should be declared "unlawful", said Salve.

According to Article 36 of the Vienna Convention, consular access must be given before the trial is over. India wasn’t granted consular access in the Kulbhushan Jadhav case even though India made multiple requests, said Harish Salve.

Salve continued his arguments and said, “Pakistan offered to allow Jadhav's family to visit him, the terms were agreed and the meeting was held on 25th December, 2017. India was dismayed at the manner the meeting with Jadhav's family was conducted & wrote a letter on 27 December marking its protest.”

Presenting India’s case, Harish Salve said, “On 19th June, 2017, India responded to the request for assistance in 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 and his (Jadhav's) purported confession clearly appears to be coaxed."

"India reminded Pakistan that it's government hasn't ratified SAARC convention on legal assistance in criminal matters," Salve added.

The Pakistani counsel, Kharwar Qureshi, will have his task cut out as he counters Salve's arguments on Tuesday.

(With inputs from Agencies)


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(Onkareshwar Pandey is Founder, Editor in Chief & CEO, Indian Observer Post and former Senior Group Editor- Rashtriya Sahara (Hindi & Urdu) and also former Editor, (News), ANI. http://bit.ly/2mh7hih Email - SMS- 9910150119)


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