Being neighbours at war seems to be the inescapable fate for India and Pakistan. It was no different at The Hague, too, where the two countries launched their legal battle on February 18 to decide the fate of former Indian Naval officer Kulbhushan Jadhav. When the two delegations arrived at the Peace Palace, the atmosphere was already grim, on account of the Pulwama attacks. Deepak Mittal, India’s agent to the ICJ, refused to shake hands with Pakistan’s co-agent Mohammad Faisal, and limited the greetings to just a namaste. The rest of the Indian delegation followed suit.
For Harish Salve, who was handpicked by Prime Minister Narendra Modi to lead the Indian legal team, the stakes were high. Salve has a personal history with the lead Pakistani counsel Khawar Qureshi, the only lawyer to have represented both India and Pakistan. Fifteen years ago, Qureshi was hired by the Manmohan Singh government to represent India in the Dabhol case initiated by Enron Corporation. Salve was expected to appear for India, but he was replaced by Qureshi, and India lost.
Qureshi clearly had not forgotten that and also what happened in May 2017, the last time he appeared at the ICJ against Salve. He had less than five days to prepare for the case and Salve managed to beat him by convincing the judges to stay Jadhav’s execution. This time, Qureshi had come prepared.
The personal history between the two lead counsels seemed to add an edge to their arguments as well. Their styles could not have been more different. Salve built his case quietly. He was methodical and thorough. Qureshi was brash, and loud. “I am reminded of a character, Humpty Dumpty,’’ he said. “India built a flimsy wall of lies,’’ he kept on repeating, forcing President of the court Abdulqawi A. Yusuf to ask him twice to slow down so that the interpreters could do their job. Qureshi retorted that he would send them personal apologies as well as some chocolates.
Arguing before the ICJ is like preparing for a marathon. It is important to pace oneself. Over the week, Salve would have practised his opening argument at least four times, noting down how long it takes him to make a point. He chose to run slow. Qureshi, on the other hand, was forced to slow down. Salve argued with facts. Qureshi chose style over substance, catering solely to the Pakistani audience.
“This case is not about consular access,” argued Qureshi. “This case is political theatre. It is grandstanding by India.’’ And, he may have unwittingly nailed it for India. The case is not really about Jadhav. It is about two opposing views shaped by an escalating conflict between India and Pakistan, fuelled by nationalism. If India accused Pakistan of propaganda, Pakistan chose to use the case as an opportunity to repeat the line that India has been trying to destroy it since 1947.
Salve’s point was simple. “Shorn of the irrelevancies sought to be injected, there are two issues that arise in the case,’’ he said. The first point is whether Pakistan breached Article 36 of the Vienna Convention. And, the second is about the unlawful nature of the trial by a military court. “It would be in the interest of justice, of making human rights a reality, to direct his (Jadhav’s) release,’’ argued Salve.
No country has ever argued for the release of a prisoner at the ICJ. Salve, however, felt that there were grounds to make the exception. Two years after Pakistan permitted military courts to try civilians, they have convicted 274 people, “including possibly’’ children. “The jurisdiction of a military court should be restricted to military personnel. Ninety five per cent of the convictions handed by military courts are based on confessions,” said Salve. It substantiates India’s point that Jadhav’s confession was coerced. The video of the confession was shown to the court as evidence even before the proceedings started. “This was for the international community,’’ said Salve. He said Pakistan should not be allowed to use the ICJ for propaganda against India, and requested the court to set Jadhav free as a retrial would only take him back to a military court. “Outlandish,’’ was how Qureshi responded to Salve’s demand. In his three-hour-long response, Qureshi even targeted Salve personally. He called the Indian memorial drafted by Salve as “violence against the English language’’.
If there was any ambiguity on what the case was really about for Pakistan, Qureshi’s arguments made it clear for everyone. He accused India of terrorism and said Pakistan was the victim. His words echoed the points made by Prime Minister Imran Khan on February 18 in his statement about the Pulwama attack. Pakistan’s co-agent to the ICJ, attorney general Anwar Mansoor Khan, too, made similar arguments. “Pakistan is a victim of terror both inside and across the border,’’ he said. Commenting on India’s charge that Jadhav was tortured by Pakistan, he said he had faced torture in India in 1971 as a prisoner of war. And, he used the opportunity to blame India for everything that ever went wrong in Pakistan, including the Bangladesh war and the horrific Peshawar school attack of 2014.
But beyond such noisy rhetoric lie the principles of international law. The Vienna Convention is a sacred covenant between civilised nations. “In the denial of consular access, India seems to have a strong case. So far, any country that has brought the issue before the ICJ has won,’’ said legal journalist Thomas Verfuss. While India might score points on the questions of law, what is more important is a solution to the crisis. To set Jadhav free will certainly be a fairytale ending for India. But in the hallowed portals of the Peace Palace, hard facts of law tend to trump fairytales.