India may have to revisit the ICJ to get Justice for Kulbhushan Jadhav: Senior Advocate and QC, Harish Salve

India may have to revisit the ICJ to get Justice for Kulbhushan Jadhav: Senior Advocate and QC, Harish Salve

Salve made the observation while rendering the concluding lecture of the Dattopant Thengadi Lecture Series organised by the Akhila Bharathiya Adhivakta Parishad.

Meera Emmanuel

Senior Advocate and Queen’s Counsel Harish Salve on Saturday commented that India may have to go back to the International Court of Justice (ICJ) for consequential directions over the Kulbhushan Jadhav case, given that the Pakistan government “has just not moved ahead” following the ICJ's July 2019 ruling.

Salve made the remark while rendering the concluding lecture for the Dattopant Thengadi Lecture Series organised by the Akhila Bharathiya Adhivakta Parishad. Salve’s speech focused on the Kulbhushan Jaddhav case and his experience at the ICJ.

The senior lawyer had successfully argued for India before the ICJ to prevent the execution of Jadhav, who was sentenced to death by a Pakistani Military Court on charges related to espionage.

Senior Counsel Harish Salve during the ICJ hearing
Senior Counsel Harish Salve during the ICJ hearing

It has become an ego problem in Pakistan: Harish Salve

Whereas the Indian government may have saved him from the gallows, Kulbhushan Jadhav continues to remain in the custody of Pakistan.

“It has become a huge ego problem in Pakistan. We were hoping they would let him (Jadhav) go. They haven’t. We have written 4-5 letters. They just keep denying…"
Harish Salve

In July last year, the ICJ had rejected Pakistan's stance that their domestic laws had provided adequately for review and reconsideration of Jadhav’s conviction and death sentence by a domestic military court.

Salve pointed out that the ICJ ruled that there must be "effective review and reconsideration”, if necessary, by amending the law. The Court’s ruling saw to it that Pakistan gave Jadhav consular access.

“…but it is too late”, Salve said, given that Jadhav was entitled to access to the Indian consulate from the time of his arrest as per the Vienna Convention.

We have now been in a tussle with Pakistan trying to get them to set up a machinery (for adequate review and reconsideration)”, Salve said.

He went on to speak on the stance now taken by the Indian government.

"The Convention required consular access right in the beginning, upon his (Jadhav's) arrest. He should have been given consular access before his confession was recorded. And if you have failed to do so, that confession has to be disregarded. If they disregard this confession, there will be no evidence left", Salve added.

He spoke on the Pakistan government’s refusal to show the implementation of any effective review and reconsideration measures as far as Jadhav’s conviction and sentence are concerned.

Salve further said that till date, Pakistan has not shared the FIR, the chargesheet or the military court judgment imposing the death penalty on Jadhav, an argument India had raised during the hearings before the ICJ.

Salve went on to opine,

"I think they (Pakistan) have a serious problem on their hands. Other than the confession, they have nothing (to incriminate Jadhav).”

Harish Salve

Senior Advocate Harish Salve rendrered his addres via video confrence from London
Senior Advocate Harish Salve rendrered his addres via video confrence from London

Salve informed that the Indian authorities had also urged the Pakistan government to share the evidence collected in their case against Jadhav, so that legal assistance could be offered to Jadhav. "They refuse to part with it”, Salve said.

While domestic courts in Pakistan may find that there is enough to implicate Jadhav, Salve asserted that,

They (Pakistan) know if it comes to a fair consideration and a fair trial, they will have no choice but to release him, and that will be a big loss of face.”

In this backdrop, Salve opined that India may have to revisit the ICJ in order to secure justice for Jadhav.

“With the way things are going, we may have to be back in the ICJ someday, trying to get justice for Jadhav."
Harish Salve

He added,

"But we have at least brought it (the case) this far: They (Pakistan) cannot put him (Jadhav) to death. They are now concerned that our consular officers have to be given access now. They have to keep him in a good condition. They must also be seeing that they can avoid this problem for a while, but someday, India will insist…”

On Pakistan’s attempt to “try and build a counter-narrative against India”

During his talk, Salve also opined that the move to initiate criminal proceedings against Jadhav, along with Pakistan’s insistence on being allowed to investigate the case in India “was a clear attempt to try and build a counter-narrative against India.

Salve added,

India has always complained that Pakistan doesn't allow access in investigation into terrorists involved in dangerous acts of terrorism in India… that these terrorists live in Pakistan is not in dispute."

To try and build a counter-narrative, they filed an FIR against Jadhav, Salve said. The confession on which the Pakistan government had based its case against Jadhav was also criticised by Salve as being vague and jumbled.

After Jadhav was sentenced to death and when it became apparent that he may be sent to the gallows without affording him any opportunity to appeal the same, the Union External Affairs Ministry consulted with Salve to approach the ICJ.

As part of his preliminary research, Salve said that he also looked into when a country had the courage to “defy the Vienna Convention.”

"The answer was 'never before’”, Salve said.

How the case reached the ICJ

Salve observed that one of the challenges he faced during the case was to ensure that Pakistan does not catch wind of India’s decision to move the ICJ too soon.

If that were to happen, Salve pointed out that Pakistan could have moved to execute Jadhav before the dispute was taken to the ICJ by the Indian government.

Between my junior and I, we wrote out the complaint. It was done on a pen drive…” Salve said. This pen drive would go to the Joint Secretary and any changes made would be added to the files on the pen drive.

“We made a final draft, a copy was printed, it was shown to Sushma ji (former MEA Minister, late Sushma Swaraj). She read it, and in our presence, it was put in the shredder. She personally went to the Prime Minister and told him what we were doing. He said, go right ahead, and we were in Court.”

Salve on how secrecy regarding the matter was maintained.

On a lighter note, Salve also recounted that he was not expecting to be personally tasked to move the case file before the ICJ.

As a senior counsel, I said, ‘not my job’. She (Sushma Swaraj) said, ‘nothing doing, go and get it listed.’ So I went to the ICJ”, Salve said.

At the ICJ, Salve said that it took a few minutes to convince the Registrar of the case, before he agreed to pass It on.

Why Human Rights violations could not be relied on as a ground in India’s ICJ case against Pakistan

Salve recounted that when the case was first taken up by the ICJ,

Pakistan tried its theatrics. Their lawyer brought a PowerPoint presentation and slides - nothing to do with the case. He brought slides of his (Jadhav’s) passport and he wanted his (Jadhav's) confession to be played in the Court.”

Salve added,

"He (Pakistan’s counsel) was politely told that this was not a place for theatrics. The only question before the Court was 'have you allowed consular access?' If you've not allowed, the case has to be heard. In the meanwhile, (ICJ said) you (Pakistan) cannot put him to death.”

In securing this relief, Salve recounted that India had to confine its arguments to those concerning a violation of the Vienna Convention.

This was because parties are generally barred from invoking the ICJ's “compulsory jurisdiction” for disputes between commonwealth countries like India and Pakistan. On the other hand, it would be easier to invoke the ICJ’s “treaty jurisdiction” by citing a violation of the Vienna Convention on consular access.

We managed to persuade the ICJ this far in that they said - while we cannot enforce the ICCPR (concerning human rights) in these limited proceedings, the interpretation of the Vienna Convention must be imbued with the principles of Human Rights and the general value system which has now come into being”, Salve said.

In this manner, India was able to get Jadhav some justice.

As he concluded his main speech, Salve also remarked, “…someday, we shall have him back in India.”

The event came to an end after a live Question and Answer session.

The full lecture may be viewed here:

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