The International Court of Justice in The Hague. Photo: AFP
The International Court of Justice in The Hague. Photo: AFP

With the International Court of Justice (ICJ) in The Hague now hearing a case brought by India against the conviction of an Indian national, Kulbhushan Jadhav, in Pakistan, Islamabad has challenged the jurisdiction of the court – just as India did back in 1999 in the Atlantic patrol plane case.

On that occasion, India was responding to a compensation claim filed by Pakistan after the Indian Air Force shot down a Pakistan Navy aircraft with 16 persons on board on August 10, 1999. India pleaded that “the ICJ has no jurisdiction to hear such disputes.” The court dismissed India’s claim.

Yesterday, hearings began in the case of Jadhav, who was arrested in Balochistan in March of last year and charged with conducting espionage and sabotage activities against Pakistan. India claims that the death sentence handed to him by a military court is “an act of premeditated murder.” New Delhi insists Jadhav is a retired officer of the Indian Navy and was kidnapped from Iran, where he was involved in business activities. Leading the Indian legal team, senior advocate Harish Salve focused on denial of consular access to Jadhav, in breach of the 1963 Vienna Convention on Consular Relations.

Pakistan’s counsel, Khalid Qureshi, arguing that the case did not fall under the ICJ’s jurisdiction, told the court: “India has not provided any evidence to rebut that Jadhav is a terrorist.”

He added: “Pakistan has concrete evidence of Jadhav’s involvement in subversive activities and he was sentenced in accordance with law.” Jadhav, he said, he entered into Pakistan on a fake passport. “Kulbhushan Jadhav confessed to having conspired to fan terrorism inside Pakistan, while the passport he was found in possession of bore a Muslim name.”

Pakistan also believes that the approach to ICJ is premature, and that Jadhav had other options available to him under the law, with the Supreme Court of Pakistan having the power to make a ruling on his conviction.

Meanwhile, India’s complaint about denial of consular access may not be watertight. Under Article 5 of Geneva Convention IV, non-combatants detained for spying forfeit their rights of communication during times of hostilities. Moreover, while such as person has the right to a fair trial, there is nothing to stop a death sentence being passed.

India is seeking the suspension of the death sentence handed to Jadhav by a Field General Court Martial (FGCM) in April this year. “India was not informed of Jadhav’s detention until after his arrest and learned only through the media about the death sentence,” its application states. The ICJ has stayed the execution while the case is heard.

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