Justice can be served only if Jadhav is released: India argues before ICJ

It was a sun-drenched Monday when the Indian and Pakistani delegations filed in quietly in the imposing Hall of Justice at the Hague for the Kulbhushan Jadhav case. Day one of the battle between the embittered neighbours on the floor of the International Court of Justice (ICJ) saw India coming out strongly against what it termed as Pakistan’s “farcical trial’’ and seeking the release of Jadhav.

In a dramatic turn of events, Tassaduq Hussain Jillani, the Pakistani judge who was to be sworn in as adhoc judge for the Jadhav case, fell ill. In his opening statement before the court, ICJ President Abdulqawi Ahmed Yusuf said the Pakistani judge “is unable to sit with us during the session’’.

Jillani was taken to the hospital in an ambulance from the court early on Monday morning. It is believed that Jillani was suffering from a flu and his condition got aggravated in the morning. Family sources dismissed rumours that the 69-year-old judge had a heart attack and claimed that he will be back in court on Tuesday.

A country can appoint an adhoc judge of its choosing. With Dalveer Bhandari, an Indian judge, already on the panel, Pakistan applied to have its own judge on the bench. Jillani, with his tremendous experience in international law, was a unanimous choice. If his health doesn’t permit him from attending the court on Tuesday, his absence would become an issue.

The Pakistani side, however, outnumbered the Indian team. Headed by Anwar Mansoor Khan, attorney general of Pakistan, there are 15 other members in the team, including two former military officers—Brigadier (Rtd) Anthony Paphiti and Colonel (Retd) Charles Garraway CBE, as legal assistants. The Indian team, in contrast, was much smaller with six members. Ambassador Venu Rajamony, M. Luther M. Rangreji, who was recently transferred to The Hague, M.S Senthil Kumar, legal officer, ministry of external affairs and Sandeep Kumar, deputy secretary ministry of external affairs, are the new additions to the Indian side.

Jadhav was innocent, declared Deepak Mittal, joint secretary, ministry of external affairs, as he stood up to make his statement to the court. The ICJ’s hearing offers India and Indians “hope for justice’’ he said.

Senior lawyer Harish Salve, reiterated the sentiment as he walked out of the court of justice at the end of his arguments. “We have come to the International Court of Justice. We shall get justice,’’ he said to the media gathered on the steps. His rather pithy comments to media apart, Salve held forth in the court room for nearly three hours, stopping only thrice to drink water.

In his argument before the court, Salve built brick by brick India’s contention that Jadhav was unfairly tried in Pakistan. He pointed out that by refusing to grant him consular access, Pakistan was preventing him from fully defending himself.

The case was simple, said Salve. Pakistan had violated the Vienna Convention by denying consular access to and the only remedy, before the court, he argued, was that Jadhav should be released. Any review of the trial would only lead to Jadhav going back to the same system to be tried by the military once again, he submitted.

Justice can only be served, Salve argued, if Jadhav was released. This is the first time that such an argument—that goes beyond just the annulment of the sentence to dismissing it—has been made before the court. Pakistan has not provided evidence of the trial, he argued. The process was “opaque’’ and would not stand up to the international standards of justice, he said. Especially, as he was tried in a military court with the only evidence being his “confession’’, Salve added.

In the two years that Pakistan has empowered military courts to try civilians, they have convicted 274 people, “including possibly’’ children, Salve said. “The jurisdiction of a military court should be restricted to military personnel,’’ he argued.

Ninety-five per cent of the convictions handed by military courts were based on “confessions’’, he said. “This raises the question of how voluntary the confessions really are. This goes to substantiate what India has been reiterating that Jadhav’s ‘confession’—possibly under torture—is coerced. His video—of the confession, which was also presented to the court as evidence—was aired before the legal procedures even began. This was for the ears for the international community,’’ he said. Pakistan should not be allowed to use the court for propaganda against India, he added.

Tuesday will see Pakistan present its arguments before the ICJ. So far, the counsel for Pakistan, Khawar Qureshi, claimed that India’s response was disappointing. Speaking to the media at the end of the hearing, Qureshi said India had not presented “anything new’’.