Home In the Spotlight Kulbhushan Jadhav case hearing at ICJ till February 21

Kulbhushan Jadhav case hearing at ICJ till February 21

The International Court of Justice’s decision is expected by summer.

Four days of hearings in the Kulbhushan Jadhav case are set to kick off on Monday at the International Court of Justice in The Hague, with oral arguments first from India and then Pakistan on Monday and Tuesday, followed by a second round of argument by both sides. The hearings take place against the background of heightened tensions between India and Pakistan, following the February 14 terrorist attack on the CRPF convoy in Jammu and Kashmir’s Pulwama, which killed 40 jawans.

The ICJ is the main judicial arm of the UN, established in 1945 to deal with “contentious” cases submitted to it by member states and to give advisory opinions on legal questions referred to it, but is not a criminal court. A judgment could be expected within months of the hearings.

India’s legal team is expected to be led by Harish Salve, and Pakistan’s by Khawar Qureshi, a London-based Queens Counsellor. While one of the ICJ judges – Dalveer Bhandari – is Indian, the former Chief Justice of Pakistan Tassaduq Hussain Jilani will serve as an ad hoc judge on the case.

Jadhav, a former naval officer, was arrested in 2016 and sentenced to death by Pakistan in April 2017 over allegations of espionage and abetting terror, after three and a half months of trial, which India has described as “farcical.” In May that year, India filed an application to launch proceedings against Pakistan for “egregious violations” of the 1963 Vienna Convention on Consular Relations, accusing Pakistan of failing to comply with its obligations under Article 36 of that convention. It argued that Pakistan had failed to inform Jadhav of his rights and had denied him consular access, despite repeated requests for this to happen. India also applied for provisional measures to stay the execution of Jadhav, arguing that without such a measure it feared that he could be executed before the full case could be heard.

On May 18 2017, the court found in favour of India’s plea that Jadhav should not be executed before the case was heard, and stayed his execution, and ordered Pakistan to “take all measures at its disposal” to prevent his execution, pending the court’s final judgement on the case. The court accepted India’s argument that the failure by Pakistan to provide required consular notification and access fell under the scope of Article 1 of the Optional Protocol of the Vienna Convention of Human Rights, which Pakistan had sought to challenge. A 2008 bilateral agreement on consular relations did not impact its jurisdiction, as Pakistan had argued, the court concluded.

Pakistan has said it has a confession video of Jadhav saying he spied for India and raised issues such as what it insisted was a “palpably false passport” and a “false cover name” on which it says he was travelling, While Pakistan had contended Jadhav had been arrested in Balochistan, India maintains he had been abducted from Iran, where he had business activities following his retirement from active service.

The case is only the fourth one involving a death sentence to be heard by the ICJ since the first in 1999, and the first that does not involve the US. The previous three cases involved Germany, Mexico and Paraguay.