India at ICJ: Kulbhushan Jadhav could be executed even as trial is on

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THE HAGUE/NEW DELHI: India vigorously took on Pakistan over the Kulbhushan Jadhav case at the International Court of Justice (ICJ) on Monday, saying the Indian national facing the death sentence for alleged spying could be executed even as the trial at ICJ was on.
India said Jadhav was framed on the basis of a “confessional video” and had been denied consular access, leaving his family and the Indian government with no information of his well-being.
The court later turned down Pakistan’s bid to play Jadhav’s “confession” even as India said it was extracted under duress.
The court proceedings, televised live, saw India strongly argue that it was not given a copy of the charges filed against Jadhav, whose so-called trial was carried out by a secret military court. “The need for wholesome compliance is greater when the charges are serious. We want appropriate legal representation for Kulbhushan Jadhav,” senior advocate Harish Salve, representing India, said.
Pakistan said India was using the court as a “political theatre” and sought to dissuade the court from ordering a stay on Jadhav’s execution by conveying that the Indian would not be executed during his appeal window.
Salve called on ICJ to immediately suspend the death sentence and pointed to precedents relating to Mexico, Nicaragua and Honduras.
Pakistan’s reply was essentially built around its assertions that ICJ lacked jurisdiction in the case as this was a matter of national security.
Pakistan said that the 2008 bilateral agreement between the two countries for consular access took precedence over the Vienna Convention on Consular Relations (VCCR).
India pointed out that the agreement had not been registered with the UN and was not relevant to a dispute under the Vienna Convention. “Execution of the death sentence cannot be done while this court is hearing the appeal.
Else it will be a violation of the Vienna Convention,” Salve said. India expects ICJ to grant the provisional measures it has sought, including suspension of the death sentence, in the next few days.
Salve told the court that Pakistan had denied India 16 requests for consular access to Jadhav. “The graver the charges, the greater the need for continued adherence to the Vienna Convention. Jadhav has been in judicial custody without any communication with his family,” he said.
The rights of Article 36 of the Vienna Convention were sacrosanct, Salve said, citing the International Covenant on Civil and Political Rights, which recognises that no one can be arbitrarily deprived of their lives.
India’s case, he said, was built solely around VCCR and Pakistan’s focus on the bilateral agreement for consular access was irrelevant.
Pakistan argued that Jadhav’s execution date was not yet fixed but this, experts said, would not prevent the court from ordering provisional measures that India demanded.
“In past consular rights cases, the ICJ has taken between one day to about three weeks in awarding provisional measures. In all but one of those cases, the dates for execution were fixed and imminent.
That is not the case for Jadhav but the court in a previous case has said that the fact that no execution dates have been fixed ‘is not per se a circumstance that should preclude [it] from indicating provisional measures’,” said Shashank Kumar, a Geneva-based international lawyer who has worked as a law clerk for ICJ.
According to Kumar, Pakistan’s argument that no date being set for Jadhav’s execution showed that there was no urgency to hang him did not find support in ICJ case law.
India was unable to provide an explanation for Jadhav’s passport which bore a Muslim name, the Pakistan foreign office’s Mohammad Faisal said in his opening remarks in response to India’s submissions earlier in the day.
India’s application on Jadhav, who was sentenced to death by a Pakistani military court on charges of espionage and subversive activities, was “unnecessary and misconceived” and must be dismissed, Pakistan told the UN’s highest judicial body.

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