Kulbhushan Jadhav case: How India beat Pakistan at the ICJ in style

When India approached the International Court of Justice (ICJ) to stay the execution of Kulbhushan Jadhav; Pakistan had a choice. They could have welcomed the case and disclosed all the related details, but they chose to fight tooth and nail. Hearing their arguments, it becomes clear why.

The Indian side began with opening remarks by the Agent - Deepak Mittal. He was followed by BD Sharma, and finally it was left to Harish Salve to elaborate the merits of the case.

The Indian approach was simple and straight forward. Mittal started by stating the facts of the case, Sharma spoke about jurisdiction of the court, after learning about Pakistan’s plans to fight the case on jurisdiction, and finally Salve elaborated the Indian case in detail and highlighted the concerns.

The arguments were basically about how Pakistan refused consular access and how the military trial was basically a sham. Both under the Vienna Convention and the treaty that both countries signed in 2008, it is required for a country to notify any arrest immediately and also provide consular access. Pakistan clearly failed on both these points. It was also pointed out that Jadhav is incommunicado with even his family. His mother has applied for visa, but there is no response on that yet.

Salve, wiping the sweat off his face repeatedly, made the Indian case and its urgency very clear to the judges. Towards the end of the 90 minutes that were allotted, the veteran lawyer appeared to find it difficult to continue to stand, but still; he continued without giving any pause. He was deliberate and precise in his arguments.

The Pakistani side

The Pakistani lawyers decided to call the man in their custody “Commander Jadhav,” to emphasis the fact that he once served in the Indian armed forces, even though at the time of his “arrest” he was a businessman in Iran. The only evidence they produced to paint him as a spy was a passport and his confession.

The judges refused to allow the video to be shown in open court. Forced confessions are neither new nor isolated to South Asia. Perhaps the judges didn’t want the hearing to turn into some form of mockery.

The bulk of the arguments for the Pakistani side were made by Khawar Qureshi. At first sight, he seemed a little weird to me. With a wig that British judges wore in the 1800s, it was hard to take the man seriously.

While the Indian team read out their arguments, by citing and quoting articles and precedents, Qureshi took a different approach. He gave a speech! This I believe worked against him, as many of the judges chose to read his written submission, point by point, rather than listen to him speak.

Qureshi’s arguments were that there is no urgency to grant any order without a hearing because there is still a lot of time before the execution is carried out, the relief India is seeking is unavailable to a “spy” and lastly the ICJ has no jurisdiction because there is a treaty in place between Indian and Pakistan (remember that treaty that gives the arrested person the right to consular access?). The Indian side had made it clear that the agreement between the two countries does not replace the Vienna Convention, but adds to it.

Defending the military trial of Jadhav, Qureshi said that due process was followed. He relied on a statement of Sartaj Aziz, which he hoped the judges will blindly accept like the people of Pakistan.

The Indian side had pointed out that even basic details like the charge sheet has not been made available. The mysterious charge sheet is still nowhere to be found. The truth of the matter is that even Qureshi may not exactly know what happened in the trial. The only people who know the actual details are General Bajwa and the army officers who were involved in the trial. No wonder the Indian side called this a farcical trial.

Qureshi hinted at an ulterior motive for bringing this case before the ICJ, suggesting that the final relief that India seeks is not available for the court to grant, because it doesn’t have the jurisdiction. “What is the objective?” he repeatedly asked without answering it.

The Indian arguments, Qureshi said, were “bootstrap arguments.” He apologized for using this English term in front of the judges, who were all from different nations. He asked them to imagine someone trying to pull himself up by his boot straps. This comment and the wig made me think of this gentleman as someone with a colonial hangover.

It is not fair to blame Qureshi for being unable to prevent the ICJ from granting a temporary reprieve to Jadhav, as some people in Pakistan are doing at the moment. In the end it was all too clear that there was very little any lawyer could have done. This is what happens when the military starts poking its nose in other areas of society. A soldier can’t be an economist, politician, diplomat and a judge at the same time. Throwing away accepted judicial norms to the wind in the name of national interests may be acceptable in Pakistan, but it will get little sympathy outside.

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