I/III. http://www.hindustantimes.com/india-news/kulbhushan-jadhav-hearing-live-india-set-to-counter-pak-s-claims-at-icj/story-dLMHS18YCn1tmcdLhj4oKK.html
Highlights: ICJ hearing on Kulbhushan Jadhav’s case ends, Pak says India’s relief appeal ‘unnecessary and misconceived’ India and Pakistan presented their arguments before the International Court of Justice (ICJ) in The Hague over Kulbhushan Jadhav’s death sentence. The alleged Indian spy was sentenced to death by a Pakistani military court earlier this year. INDIA Updated: May 15, 2017 20:13 IST HT Correspondent Television channels show news about the ICJ hearing on Kulbhushan Jadhav’s death sentence.(AP Photo) India and Pakistan ended their submissions before the International Court of Justice at The Hague on Monday over the Indian national Kulbhushan Jadhav’s death sentence. India took up the issue of consular rights to its national and accused Pakistan of violating the Vienna convention and conducting a “farcical trial” without a “shred of evidence”. New Delhi also demanded the immediate suspension of Jadhav’s death sentence, expressing fears that Pakistan could execute him even before the ICJ hearing was over. Pakistan argued that the world court has no jurisdiction in this case as it pertains to national security. It is after 18 years that an India-Pakistan dispute is playing out in the world court. Here are the live updates: 7:25 pm: The ICJ chair addresses the court and says ICJ will render its order as soon as possible. The date will be duly communicated to the parties. “The sitting is closed.” 7:20 pm: Indian counsel’s claim that Delhi wasn’t provided consular access to Jadhav is far removed from the truth. It was “wholly inappropriate” for India to seek provisional measures from this court: Pakistan Qureshi ends his arguments. 7:18 pm: Earlier in the afternoon, ICJ declined Pakistan’s plea to play a video of Jadhav’s “confession”, reports news agency IANS. 7:15pm: To kidnap a man in Iran and get him for the purpose of confession is far-fetched, says Pakistan. 7:10pm: Point by point, Pakistani delegation gives reasons for why Islamabad is not violating Vienna Convention, as claimed by the Indian side. The focus then shifts on the passport controversy as Pakistan claims Jadhav carried a false document. Article 55 (of Vienna Convention) says there must be no inference in the internal affairs of the receiving state. Espionage, terrorism are clearly internal affairs of the country: Pakistan argues before the ICJ about the jurisdiction of the court in this case “Not one jot of evidence has been advanced by India.” 7 pm: Pakistan questions the “objective” of this case as it disseminates the case examples presented by the Indian side before the ICJ. “If the only relief India is seeking is not available, what is the objective.” The court should exercise considerable caution in matters where the court can’t provide relief, says Qureshi. 6:55 pm: Pakistan harps on the urgency of India’s plea, tells ICJ the matter is not urgent. “This court does not exist for time wasting.” At the very least what is required is annulment and release of Jadhav. “There is no realistic, plausible relief in this case... These relief are aspirational.” 6:50 pm: India’s position advanced towards this court is a sham, says Pakistan’s counsel... “India invoked the court with respect to urgency, not Pakistan.” 6:40 pm: Pakistan’s counsel QC Khawar Qureshi now addresses the ICJ bench. I will invite this court to dismiss this application, says Qureshi, listing out reasons for the claim. There is no urgency and the jurisdiction in this case is limited and unqualified. 6:37 pm: After saying that Jadhav has confessed to being an Indian spy, Md faisal -- agent of Pakistan government addresses the ICJ -- says the video (of Jadhav’s confession) is publically available for everyone to see. 6:35 pm: India has been provided with the copy of the passport that was in possession of Commander Jadhav. The passport bears a Muslim name, which clearly isn’t his name. India is unwilling to provide the explanation for his passport... We submit that India’s silence is telling: Pakistani delegation “Instead, India appears to be on a hyperdrive to brief its press on Commander Jadhav.” Faisal says India’s urgency claim, saying that the Indian national may be executed soon, is not accurate as a period of 150 days is provided for Jadhav to seek clemency. There is a no need for provisional measure: Pakistan 6:31pm: Moazzam Ahmad Khan (agent), Mohammad Faisal (agent), QC Khawar Qureshi (Counsel) to argue in ICJ for Pakistan in #KulbhushanJadhav case. Pakistan says India’s application is misconceived and unnecessary, and New Delhi is using ICJ as a political theatre. “India has used this court as the scene of political theatre. We will not respond in kind.” “Despite being ambushed for appearing before the court, we will present the case today.” “We will not be cowed by terrorism.” 6:30 pm: ICJ hearing on Kulbhushan Jadhav’s death sentence begins again. Pakistani delegation will present its case. 3.10pm: India concludes its arguments at the International Court of Justice. 3pm: Graver the charges, greater the need for continued adherence of Vienna Convention: Harish Salve. 2.40pm: The trial was conducted without informing Jadhav: Harish Salve tells ICJ. 2.26pm: India tells ICJ it fears Kulbhushan Jadhav will be executed before its arguments are heard in the case, reports PTI. 2.21pm: India refutes Pakistan’s claims against Kulbhushan Jadhav, says he was kidnapped from Iran. 2.15pm: The ICJ appeal has been filed as a measure of desperation, Harish Salve tells the court. 2.12pm: India calls for immediate suspension of Kulbhushan Jadhav’s sentence, accusing Pakistan of violating Vienna Convention of consular access. View image on Twitter View image on Twitter Follow ANI ✔ @ANI_news India seeks annulment of Pakistan's verdict on #KulbhushanJadhav case: Harish Salve #ICJ 2:27 PM - 15 May 2017 · New Delhi, India 20 20 Retweets 29 29 likes 2.08pm: India seeks interim relief for Kulbhshan Jadhav. He should not be executed till the final disposal of the case is done. 2.07pm: Follow Press Trust of India ✔ @PTI_News The present situation is grave and that is why #India has sought the indulgence of ICJ: India's attorney #HarishSalve. 2:06 PM - 15 May 2017 15 15 Retweets 18 18 likes 2.05pm: India made innumerable requests to Pakistan for consular access which were denied: Harish Salve. 2pm: Harish Salve will address ICJ on these four issues Jurisprudence of the courtPrima facie case – JurisdictionPrima facie violation of Vienna conventionNature of provisional measures that India seeks 1.57pm: Pakistan has violated rules of International law, India says, citing La Guard and Avena cases on Consular access. 1.55pm: Kulbhushan Jadhav’s parents have filed an appeal against death penalty with Pakistan. 1.50pm: Pakistan has not provided India any chargesheet, copy of the verdict and other documents, says Deepak Mittal. 1.47pm:Jadhav was framed on confessional statements extracted from him when he was in Pakistan’s military custody: Harish Salve. 1.44pm: India’s plea at ICJ: Pakistan should take all measure that Kulbhushan Jadhav is not executed. 15 May Hindustan Times ✔ @htTweets India’s plea at ICJ: Pakistan should take all measure that #KulbhushanJadhav is not executed Follow Hindustan Times ✔ @htTweets India’s plea at ICJ: Pakistan should report to court what it has done to follow ICJ’s order 1:46 PM - 15 May 2017 5 5 Retweets 12 12 likes 1.42pm: The execution will cause irreparable damage to rights of India and Jadhav: Deepak Mittal. 1.40pm: India’s demands at ICJ # immediate suspension of death penalty#Declare sentence of military court – violatice of Vienna convention#Restrains Pak to give effect to death penalty and annul the Pak courts order #Declare the decision of pak court illegal 1.40pm: Dr Deepak Mittal (joint secretary), GOI and agent for India begins his statements. 1.30pm: View image on Twitter View image on Twitter Follow ANI ✔ @ANI_news India has a very good case.It is clear Pak violated all rules,both in trial & human rights:AG Mukul Rohatgi on ICJ hearing #KulbhushanJadhav 10:11 AM - 15 May 2017 21 21 Retweets 57 57 likes 1.20pm: Both sides will get 90 minutes each to make their arguments, with India getting the first say. 1pm: India accused Pakistan of “egregious violations” of New Delhi’s rights under the Vienna convention on consular relations (VCCR) when it sought ICJ’s intervention on May 8. 12.45pm: India is scheduled to first argue its case. This would be followed by arguments from the Pakistan team led by Attorney General Ashtar Ausaf. 12.30pm: Pakistan has said the Indian move to approach ICJ was an attempt to divert attention from “state-sponsored terrorism in Pakistan” and that it was analysing the ICJ’s authority in the matter. 12.15pm: India delegation leaves for International Court of Justice (ICJ). The public hearing will start at The Hague, Netherlands, from 1.30pm IST. 11.55pm: People held prayers for release of Kulbhushan Jadhav in Kanpur, ahead of India’s arguments before International Court of Justice. II/III. https://www.geo.tv/latest/141859-ICJ-hearing-on-Jadhav-Pakistan-presents-its-stance Pakistan says ICJ lacks jurisdiction in Kulbhushan Jadhav case Azaz Syed & Khalid Hameed FarooqiMay 15, 2017 PAKISTAN کلبھوشن کے معاملے میں عالمی عدالت انصاف میں پاکستان کی شنوائَی Posted by Geo News Urdu on Monday, May 15, 2017 Related Stories Who is Kulbhushan Jadhav? Indian propaganda exposed: ICJ to hear Jadhav case on May 15 India pursuing Jadhav’s case to divert attention, says Khawaja Asif The HAGUE: Pakistan on Monday stressed that the International Court of Justice (ICJ) lacked jurisdiction in the case of Indian RAW agent Kulbhushan Jadhav, as Islamabad presented its stance on death sentence handed to the under custody RAW operative in the International Court of Justice (ICJ) in The Hague, Netherlands. The ICJ Monday conducted hearing into India's petition demanding staying of Pakistan's death sentence to RAW agent Kulbhushan Jadhav, a RAW operative and on-duty Indian navy officer, was apprehended from Balochistan as a result of a counter-intelligence operation in March 2016. Pakistan’s counsel, Khawar Qureshi, presented the country’s stance on the death sentence handed to Jadhav in the ICJ, contending that according to the Vienna Convention the case cannot be heard in the ICJ. “India has not provided any evidence to rebut that Jadhav is a terrorist,” Qureshi informed the court, stressing that Indian spy Kulbhushan Jadhav did not hold the right to consular access. Qureshi moved the ICJ to turn down India's petition on Jadhav's death sentence. "The case is not that of emergency basis, while India's petition has too many loopholes." "Pakistan has concrete evidence of Jadhav's involvement in subversive activities and he was sentenced in accordance with law," he said, noting that Jadhav was arrested from mineral-rich Balochistan. The Pakistani counsel told the ICJ that Jadhav entered into Pakistan on a fake passport. "It is the responsibility of all states to punish a terrorist," he added, contending that the under custody RAW operative cannot be given counselor access. 'India to find its claim dismissed' Speaking to newsmen after the hearing, Qureshi explained, "The Government of India brought an application to seek an exceptional relief from the ICJ, the highest judicial organ of the United Nations, such application should only be brought in circumstances of extreme emergency. "It is clear as we have tried to demonstrate in the court that the urgency was contrived and there's no substance in the application to court." He said that, in any event, applications for provisional measures are not evaluation of the merits or the facts. All an application for provisional measures is intended to do is to enable a full hearing to take place at a subsequent date. "Government of Pakistan remains confident, whether it be the provisional measures or the application itself, the clarity of the law and the facts will prevail and India ultimately will find that its claim is dismissed," he said. 'Pakistan won't be cowed down by terrorists' Speaking prior to him in the ICJ, DG South Asia and SAARC, Dr. Muhammad Faisal said, "Pakistan will not be cowed down by terrorists and utilise all legal means to safeguard its people and soil." "Kulbhushan Jadhav confessed to having conspired to fan terrorism inside Pakistan, while the passport, he was found in possession of, bore a Muslim name," he said. The ICJ was also shown a copy of the passport seized from Jadhav at the time of his arrest. "The court can see the passport bore a Muslim name and the copy of which was also provided to Indian authorities, but New Delhi has been unable to provide an explanation of it," the Pakistani diplomat said. Hearing closed, verdict to be announced soon After having listened to the arguments, the ICJ closed the hearing, with the judge saying that the court will soon announce a verdict on India's petition. "The parties will be apprised of the date when the verdict will be announced," he said, directing counsels from the two sides to remain available for the court. Earlier, joint secretaries at the Indian External Affairs Ministry, Dr Deepak Mittal, Dr VD Sharma, and Indian counsel Harish Salve completed their statements before the judges. The Indian side focused on expressing its reservations over the fairness of Jadhav's trial in Pakistan by an army court as well as lack of mercy shown by the Pakistani side, saying the jailed Indian national was not allowed to meet his mother. The Indian delegation comprised five members whereas the Pakistani side consists of six individuals, including a European lawyer and members of the diplomatic corps. Meanwhile, senior Pakistani government officials stated that the incarcerated RAW agent’s confession of involvement in sabotage and espionage activities inside Pakistan is the crux of Islamabad’s case. Moreover, Pakistani legal experts are of the view that India’s case at the global legal tribunal is weak. Jadhav, in his confessional statement, had admitted to funding sabotage activities in Balochistan. Criticising India’s designs to cloud the issue, officials said Pakistan’s legal team will lay bare India’s bogus claims regarding the Jadhav case in front of the international court. Read more: Who is Kulbhushan Jadhav? Sources also said that India had four months to prepare its case in the global court whereas Pakistan had to prepare its arguments in a couple of days owing to New Delhi’s surprise move to approach the ICJ. On May 9, New Delhi instituted proceedings in the ICJ over Jadhav’s sentencing to death in Pakistan earlier this year. Jadhav alias Hussein Mubarak Patel was arrested on March 3, 2016 in a ‘Counter-Intelligence Operation’ from Mashkel area of Balochistan over his involvement in espionage and sabotage actives in Pakistan. According to a press release on May 9 from ICJ, India requested the United Nations' judicial organ to provide relief "by way of immediate suspension of the sentence of death awarded to the accused". A later press release from the ICJ stated that on May 15, it will hear India’s observations in the first session and that of Pakistan in the second session. The hearing is being streamed live and on demand (VOD) on the ICJ’s website, as well as on the United Nations online television. India has contended that it was not granted consular access to Jadhav, terming it a violation of the Vienna Convention on Consular Relations. India has also claimed that it learned about the death sentence by way of a press release from Pakistan. On April 10, Jadhav was awarded a death sentence by a Field General Court Martial under the Pakistan Army Act for espionage and sabotage. Army Chief General Qamar Javed Bajwa ratified Jadhav's sentencing by the army tribunal. [Video] III. http://www.firstpost.com/india/kulbhushan-jadhav-hearing-at-the-icj-a-fundamental-reason-why-india-will-lose-this-case-3448210.html Kulbhushan Jadhav hearing at the ICJ: A fundamental reason why India will lose this case Ajay Kumar May, 16 2017 14:38:38 IST Monday's hearing before the International Court of Justice at the Hague may appear to be a victory for India in terms of political points scored back home, but there were some key legal issues that Pakistan did point out that require our consideration. The legal issues stem from the fact that there was a 2008 bilateral agreement on consular access. An agreement that India sought not to rely on at the Hague on Monday and merely restricted itself to the Vienna Convention on Consular Relations. In doing so, India made the point that the agreement had not been registered with the United Nations and therefore, India would have to restrict the argument to the Vienna Convention on Consular Relations alone. This perhaps may be the first instance of a State disavowing a bilateral treaty, in accordance with which it has been acting, in the midst of a court proceeding. The ICJ is not an ordinary court in the strictest sense, the ICJ is a diplomatic body and statements made before the ICJ have consequences. Which is why States are represented by agents who instruct counsel to argue the case for them, rather than just counsel alone. Statements made by an agent or an agent via their counsel bind the State in the international fora. By refusing to acknowledge the 2008 Agreement, India could have well just terminated that agreement. The agreement is critical for the fate of many Indian fishermen who end up straying into Pakistani waters year after year as it called for the exchange of prisoner lists and consular access. Harish Salve at the ICJ. Image credit: webtv.un.orgHarish Salve at the ICJ. Image credit: webtv.un.org Coming to the point of consular access, one of the key arguments that Pakistan raised before the court was that India had failed to prove the nationality of Kulbhushan Jadhav. While to many this may seem like a technicality, it is not. In the case of Mexico versus United States (The case concerning Avena and other Mexican nationals; more commonly the Avena Case), the ICJ was quite clear on the point that in order for a State to exercise diplomatic protection, it must prove that the person it is trying to protect is a national of that State. Pakistan raised the dispute in court on Monday, as India was not dealing with the Indian passport with which Jadhav was found. While there is abundant evidence that may exist to prove that Jadhav is an Indian national, this evidence was not put before the court. Instead India relied solely on Pakistan's assertion that he was an Indian spy. If we are disputing the Pakistani narrative of things, it becomes incumbent upon India to prove that the Pakistani narrative is false. Towards this, among the many annexes in India's pleadings before the ICJ, annexing Jadhav's birth certificate or perhaps a copy of his original passport would have gone a long way in countering this objection by Pakistan. Put simply, not all spies are of the same nationality as the State for which they are spying. Sometimes foreign spies can be engaged as well (think James bond and how he always had someone local working for British Intelligence if you need to understand it simply). We still have a burden to prove he is a national of India. The other is the ground of jurisdiction and reliefs. India has approached the ICJ to ask Pakistan to release Jadhav on the grounds that his rights under the Vienna Convention had been violated or in the alternative, to declare that the military court trial was unfair and not carried out in accordance with International Law, and order a new trial ie relief by way of restitution in integrum, which is legalese for returning to the original condition. This becomes very problematic in light of the jurisprudence of the ICJ and in particular the fact that the ICJ is a body for the pacific settlement of disputes between States and not individuals. The Vienna Convention does not provide for the right to fair trial. Indeed the right to fair trial even though recognised under International Law is not one that is justiciable before the ICJ in a case where the Vienna Convention has been breached. Let us take an example. Tomorrow, if an Indian were to be put through the kangaroo courts of North Korea and sentenced to death, if India had consular access to that Indian, there is precious little India could do to have that trial set aside, as North Korea has the right under International Law to run its affairs in accordance with its sovereign rights. Now if the final relief is one that the court cannot grant, then interim relief is something the court may be unlikely to grant in this case. In the La Grande Case (Germany versus United States), the court held that as a way of restitution, a full new trial need not be provided and in fact, even if review and reconsideration taking into account that consular access was not provided would be sufficient relief for restitution in integrum. In the Mexico versus United States case the Court at Paragraph 122 held: "The Court reaffirms, that the case before it concerns Article 36 of the Vienna Convention and not the correctness as such of any conviction or sentencing. The question of whether the violations of Article 36, paragraph1, are to be regarded as having, in the causal sequence of events, ultimately led to convictions and severe penalties is an integral part of criminal proceedings before the courts of the United States and is for them to determine in the process of review and reconsideration. In so doing, il is for the courts of the United States to examine the facts, and in particular the prejudice and its causes, taking account of the violation of the rights set forth in the Convention." Further, in the same case, Mexico had contended that failure to grant consular access would lead to a violation of due process making the trial unfair. This is the exact argument India is going with before the court. The court however was very clear on this point and at Paragraph 124 said: "Whether or not the Vienna Convention rights are human rights is not a matter that this Court need decide. The Court would, however, observe that neither the text nor the object and purpose of the Convention, nor any indication in the travaux preparatories, support the conclusion that Mexico draws from its contention in that regard." By saying this, the court refused to review if the trial had been fair or not and in terms of the relief held that review and reconsideration along with clemency may be valid means of remedy rather than setting aside the trial itself. (See Para 141,142 and 143) saying on the point of a clemency procedure: "The Court considers nevertheless that appropriate clemency procedures call supplement judicial review and reconsideration, in particular where the judicial system has failed to take due account of the violation of the rights set forth in the Vienna Convention, as has occurred in the case of the three Mexican nationals referred to in paragraph 114 above" (Para 143) It would be wise at this stage to point out that India, in none of its pleadings before the court, has asked for consular access as a prayer, including in its main pleas before the court. None of them include a relief by way of a direction that Pakistan grant consular access to the Indian national concerned: Which is the relief to address India's primary and continuing grievance under the Vienna Convention. Consular access would help Jadhav find lawyers to fight his appeal and also help him liaison with his family back home. The primary aim of the Vienna Convention is to facilitate those rights. However, in the reliefs sought before the ICJ, India has not asked for consular access to be granted either as a final or as an interim relief. Last but not least, India failed miserably on Monday to establish urgency before the court. The chances of its interim application being allowed largely evaporated when Pakistan agreed to consent to an early hearing for quick disposal of the matter. Further, in all previous cases there was a lot more urgency before a State went to the court. In the first case of this kind — Paraguay versus the United States, Paraguay approached the court on 3 April, 1998 when the execution date for its national was set for 14 April, 1998. There were around two weeks to go. File image of former Indian naval officer Kulbhushan Jadhav. PTIFile image of former Indian naval officer Kulbhushan Jadhav. PTI In La Grande (Germany versus United States), the execution was scheduled for the following day and in the Mexican case, there was around a month. If Pakistan is able to establish that Jadhav won't hang within the time that the case could be heard and disposed off by the ICJ then there is no chance of India getting an interim measure. Pakistan was able to do so by pointing out that there was still time before the execution and therefore the court need not intervene. Let us now revisit the key fact that the ICJ is a diplomatic body and not a court per se. It exists to have States settle disputes peacefully rather than go to war. The court will be reluctant to interfere in the internal workings of a State unless it has to. This is why India also hardly ever goes to the ICJ to litigate. Quite likely, this is the first time India has applied as an applicant to the court to seek substantive relief. The last time India was before the ICJ as an applicant in 1971 was when it challenged a decision by the International Civil Aviation Organisation on the grounds that it did not have jurisdiction. It has been consistent Indian policy to have affairs settled bilaterally rather than invoking the jurisdiction of the ICJ. Which makes this author wonder why India has suddenly decided to do this. The Vienna Convention is a very strict convention. It requires that the person arrested be informed of their right to consular access and also requires that this access be supplied at the earliest. Tomorrow, if a terrorist is picked up in Jammu and Kashmir, and the authorities fail to inform him of his consular rights, Pakistan could suddenly make an application against us before the ICJ. Bilateral relations work better for States that share long borders and keep facing the problem of nationals slipping in from one territory to another. To invoke a multilateral framework and at the same time disavow a bilateral one is something that India has seldom done. After Monday's hearing, one really wonders if the advice of the legal mandarins in the Ministry of External Affairs is being heeded or if India is purely moving this case as a result of a political decision. -- Peace Is Doable -- You received this message because you are subscribed to the Google Groups "Green Youth Movement" group. To unsubscribe from this group and stop receiving emails from it, send an email to [email protected]. To post to this group, send an email to [email protected]. Visit this group at https://groups.google.com/group/greenyouth. For more options, visit https://groups.google.com/d/optout.
