pak scan: ICJ unlikely to order acquittal or release of kulbushan jadhav

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English barrister Khawar Qureshi, who is representing Pakistan in the Kulbushan Jadhav case in the International Court of Justice, said on Monday that a very prominent UK expert had provided evidence that Indian spy Jadhav used his passport, issued by the Indian authorities, at least 17 times to come into and out of India.

“The inference is that India gave Jadhav the false Muslim identity for improper purposes. India’s answer has been to say it does not need to answer this point,” he said during an interview with Newsweek.

“The passport issue has recently been raised by respected Indian journalists Praveen Swami and Karan Thapar. They have been accused of spreading propaganda and, sadly, also called traitors for doing their jobs. No real answer has been given on this point, as well as most of the other arguments-apart (with respect) from resort to spin.”

During the conversation, Khawar who possesses the title of Queen’s counsel, summarised some of the key points of the case.

“India says Jadhav recently retired from the Indian Navy (but not when or why), and suggests he was kidnapped from Iran and smuggled into Pakistan to extract a false confession. India says the entire legal process against him in Pakistan was unfair, and demands that the ICJ at least orders his acquittal or release. India says Jadhav should have been given immediate consular access.”

“Pakistan says Jadhav was a naval commander who was working for Indian spy agency RAW when arrested. The ICJ has been asked to consider whether individuals suspected of espionage had in practice often been excluded from the right to consular access-an argument never raised or considered previously. The ICJ has now exceptionally invited all states that signed the Vienna Convention on Consular Relations (VCCR) to respond to Pakistan’s argument on this point, which is based upon the material practice of the US, Soviet Union and China, including the famous Gary Powers case (given the Hollywood treatment in The Bridge of Spies), as well as commentaries from experts in this field,” he said.

He continued: “In addition, India and Pakistan have signed an express agreement on consular access in 2008, which clearly qualifies consular access in situations involving issues of security-consistent with the state practice.”

He said that world-renowned UK military law experts had given expert evidence concerning Pakistan’s military courts system, with reference to the military courts in the UK, US, India and other key jurisdictions. “They have confirmed that effective review of the decisions of Pakistan’s military courts is potentially available before the high court of Pakistan.

He was referring to the trial and conviction of Jadhav by a military court, which passed the death sentence on April 10, 2017.

Replying to a question, he said: “I submitted on May 15, 2017 and repeat, the ICJ has never ordered acquittal or release (as India at least seeks), and all its previous decisions indicate it would never do so.”

Jadhav was tried and convicted by a Military Court, which passed the death sentence on April 10, 2017. Clemency petition avenues are available under the Constitution of Pakistan as of right, as well as review by the High Court of Pakistan.

Jadhav was arrested in Baluchistan, having clandestinely entered Pakistan from Iran. He was carrying an Indian passport in the name of ‘Hussein Mubarak Patel’. Pakistan had shared with the world at large his confession before a magistrate as a serving Indian navy commander seconded to RAW (the Indian intelligence’s Research and Analysis Wing), who was involved in crimes of espionage and terrorism directed toward the infrastructure and people of Pakistan, including Gwadar port and CPEC facilities.

From March 25, 2016 onwards, India had sought consular access to Jadhav, which was earlier denied.

On May 8, 2017, India made an application to the ICJ arguing that Pakistan had violated the VCCR by denying consular access, and that the military court trial/conviction was “flagrantly unfair”. India demanded that the ICJ should immediately make an order (without any hearing) that Pakistan should not execute Jadhav pending the full hearing of India’s claims.

On December 13 last year, Pakistan filed its counter-memorial at the ICJ in response to India’s memorial or formal submission.

On May 18, 2017, ICJ stayed Jadhav’s execution through an interim order.

“Since the ICJ hearing in May 2017, India had filed its full pleading and I had drafted Pakistan’s detailed Counter Memorial. Most unusually, India insisted on yet a further round of pleadings, and filed a reply on April 17, 2018 to which Pakistan would shortly file its rejoinder pleading in response.”

It may be mentioned that Khawar Qureshi has undertaken hundreds of cases before courts in the United Kingdom at all levels for the UK government and many other states. In addition, he has made frequent appearances before international arbitral tribunals across the world, acting or advising on matters involving around 70 different jurisdictions. He has also been a counsel for the Indian government (in what was then the largest claim brought against a state by General Electric, Enron and Bechtel.

He, however, said: “It is an honour to represent Pakistan in this matter and, God willing, I will continue to do so to the best of my ability.”

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