The Hague– India on Monday demanded before the International Court of Justice (ICJ) that Pakistan annul the death sentence of alleged spy Kulbushan Jadhav and see that he was not executed as his trial was held under “farcical” circumstances in violation of the Vienna Convention.
“I urge the ICJ to ensure that Jadhav is not executed, Pakistan reports to this court that the action (of not executing him) is taken and that no action is taken that might prejudice the rights of India in the matter of Jadhav,” noted lawyer Harish Salve submitted in his over hour-long presentation before ICJ President Ronny Abraham in the Hague.
The ICJ had last week stayed the execution of Jadhav on a petition by India, which approached the UN court after 46 years on an issue with Pakistan.
The former Indian Navy officer was awarded the death sentence by a Pakistani military court last month, a year after he was arrested on espionage charges. India says Jadhav has been kidnapped and framed. Islamabad has rejected 16 Indian requests for consular access to Jadhav, who is held at an unknown prison in Pakistan.
The brunt of Salve’s argument was that the entire matter of arrest, chargesheet and trial of Jadhav were all done in violation of the UN Charter and Vienna Convention in farcical circumstances and on concocted charges as Jadhav was not given legal assistance to defend himself.
Salve, who led the Indian legal team at the Hague-based ICJ, said the matter was “grave and urgent” and hence India approached this court which took up the case “at such a short notice”.
The Indian lawyer told the court that Jadhav was kidnapped from Iran on March 16, 2016, brought to Pakistan, presented as an alleged Indian spy and confession was extracted in custody before a magistrate. He was incommunicado and the trial was also held incommunicado.
He urged the ICJ President to take note of the farcical nature of the circumstances of the military court.
Salve said the provisions of the Vienna Convention recognised that any prisoner has a right to be tried by an independent tribunal as established by law and he should be tried in his presence and defended by legal aid assigned to him. In Jadhav’s case all the basic provisions of human rights were “thrown to the wind”, he said.
The facts presented by India establish the violation of all principles of UN charter and Vienna Convention because of the nature of the trial which destroyed any credibility or sanctity of the army court’s decision sentencing him to death, he said.
Salve cited three past similar cases in which the international court had intervened. These cases include Paraguay versus the US in which the court decided that the American government needed to take steps to give rights of access of a Paraguayan national.
In Germany versus the US, Salve said, the court held that execution of a German national was “an irreparable damage to justice”. He also referred to a case between the US and Mexico in which lives of 54 Mexicans were at stake as they faced execution.
After the court adjourned for a three-hour break to hear Pakistan’s arguments, Salve told the media outside that he expected India to be provided justice by the court.
Earlier, Deepak Mittal, Joint Secretary, of the Pakistan, Afghanistan, India Desk at the Ministry of External Affairs, told the court in his opening remarks that there was a fear that Jadhav may be executed soon even before the decision of the UN court.
“Jadhav has not got the right to get proper legal assistance and the right to consular access. There is an immediate threat to him to be executed even before a decision is passed.”
“India learnt from press reports that the death sentence was awarded to Jadhav on the basis of an alleged confession. Pakistan has not provided the chargesheet, any documents on the case despite repeated requests.
“It is clear that Jadhav has been denied of his right to seek legal counsel. Jadhav’s parents have applied for visa to travel to Pakistan which has fallen on deaf ears.”
V.D. Sharma, Joint Secretary (Legal and Treaties) in the MEA, said Pakistan had failed to comply with all its legal obligations by denying consular access to Jadhav since his arrest in March 2016.
Sharma also urged the court to restrain Pakistan from “giving effect to the sentence awarded by the military court” and to direct it to annul its decision.
The day-long hearing, which began on Monday morning, involves two sessions of an hour-and-a-half each to India and Pakistan to make their cases. (IANS)
