International Court of Justice stays alleged Indian spy's death
By ANN News Desk
19 May 2017

NEW DELHI (The Statesman/ANN News Desk) - India has managed to earn a small measure in the International Court of Justice which has stalled alleged Indian spy Kulbhushan Yadav's death by Pakistan. 

In a major boost to India’s efforts to save Kulbhushan Jadhav from the gallows, the International Court of Justice (ICJ) on Thursday unanimously directed Islamabad to take all measures to ensure that the former Indian Navy officer was not executed pending a final decision by the court on New Delhi’s appeal against the death sentence awarded to him.

‘’Pakistan shall take all measures at its disposal to ensure that Jadhav is not executed pending the final decision in these proceedings and shall inform the court of all the measures taken in implementation of the present order,” ICJ president Ronny Abraham said while announcing the court’s verdict at its nearly 30-minute sitting at the Hague, attended by representatives from both India and Pakistan.

“The court also decides that until it has given its final decision, it shall remain seized of the matters which form the subject matter of this order,” he said.

Dalveer Bhandari, Indian member of the ICJ, made a separate declaration also as part of the court’s verdict to record his views. He emphasised that Pakistan’s denial of consular access had determined a situation in which India had no direct knowledge of the charges against Jadhav, as well as of the proceedings against him in the Pakistani military court.  

Pakistan's aurgument 

Meanwhile, Pakistan, as expected, sought to give an impression that the ICJ’s ruling was not a setback for the country, saying the court’s decision had not changed the status of Jadhav’s case in any manner and that Islamabad was determined to pursue it to its logical end.

After the order was announced, Pakistan's Attorney General Ashtar Ausaf reasoned that the ICJ had directed for "the status quo [to] be maintained in the case" — ie, that Jadhav's status remain as it stands right now, with the execution of his sentence delayed till the court deliberates the case, Dawn reported.

"The court has clearly underscored that the provisional measures are without prejudice to the final determination of the merits and jurisdiction of the case," he pointed out in a written statement. "The provisional measures are a procedural process only to enable the court to have full consideration at a later hearing," he said.

"These measures have no bearing whatsoever on the final decision of the Court," he added, meaning that this was only a temporary relief granted by the court.

He also responded to critics who said Pakistan should not have accepted the ICJ's jurisdiction, saying: "Pakistan attended the hearing out of its utmost respect for the court and pursuant to the established jurisprudence that the challenge to jurisdiction can be made via appearance and not by abstaining from the process.

"In addition, Pakistan attended because of its conviction that the only way to resolve all outstanding issues is through peaceful means. We are confident that India would not be able to hide the subversive activities it is trying to carry out through its agents like Commander Jadhav," he added.

The arguments for Pakistan had been presented to the court on Monday in an emergency hearing swiftly organised on Monday on India's appeal.

Ambassador Moazzam Ahmad Khan, Dr Muhammad Faisal and Syed Faraz Hussain were present at the Peace Palace as members of Pakistan's legal team.

Khawar Qureshi led Pakistan's arguments, while Asad Rahim Khan and Joseph Dyke were present on Pakistan's behalf for the proceedings in The Hague.

Pakistani representatives had reminded the court that Jadhav “has confessed to having been sent by India to wage terror on the innocent civilians and infrastructure of Pakistan”.

They had also argued that, according to the Vienna Convention, the court had no jurisdiction to hear such a case.

They said the self-confessed Indian spy was sentenced to death after fulfilling all necessary legal procedures and that he was also given legal counsel to defend the allegations against him.

Qureshi had argued that the ICJ is not a criminal court and cannot decide such type of cases relating to national security.

He further appealed to the court to dismiss the Indian application, saying that "there is no agency".

The counsel for Pakistan had argued that the provisions of the Vienna Convention do not apply to a "spy involved in terror activities".

Qureshi said that Jadhav “is a terrorist” and “India invoked the jurisdiction of this court improperly.”

“This court exists to ensure that states engage in peaceful resolution of disputes. This court does not exist for time-wasting and political grandstanding,” he maintained.

"India's allegation regarding the kidnapping of its spy is not true and he [Jadhav] was arrested by Pakistani forces from Balochistan," he maintained.

India celebrates

Earlier in the day, as India waited with bated breath for the ICJ’s ruling, Court president Abraham dismissed Pakistan’s argument that the Vienna Convention on Consular Relations was not applicable in the case of Jadhav.

"The alleged failure by Pakistan to provide the requisite consular notifications with regard to the arrest and detention of Jadhav as well as the alleged failure to allow communication and provide access to him, appear to be capable of falling within the scope of the convention (on consular relations,’’ it ruled.

Asked if India would again make a request to Pakistan for consular access to Jadhav, the MEA spokesperson said India had already made 16 such requests. If Islamabad wanted, it could give India consular access to Jadhav any time.  In any case, the matter was now sub-judice, he added.

The court’s ruling, which sent a wave of jubilation across the country, was promptly welcomed by the Indian establishment with External Affairs Minister Sushma Swaraj asserting that under the leadership of Prime Minister Narendra Modi, the government would leave no stone unturned to save Jadhav, who has been awarded death sentence by a military court on concocted charges. 

She also thanked senior lawyer Harish Salve for presenting India’s case effectively at the ICJ. PM Modi also spoke to Swaraj on phone and thanked her as well as Salve for arguing India’s case at the UN’s highest judicial organ.

The ruling was a matter of great relief for every Indian and Jadhav could not be executed until the ICJ was seized of the matter, MEA spokesperson Gopal Baglay said at a media briefing. In response to a question, he said the ICJ’s verdict was a legally binding international obligation for Pakistan.

The spokesperson said India welcomed the “unanimous, favourable, clear and unambiguous” order of the ICJ on India’s request for provisional measures in Jadhav’s case. The order “constitutes an essential first step in ensuring justice for Jadhav. We hope that it will help remedy the egregious violation of Jadhav’s rights and violation of international conventions by Pakistan in this matter,’’ he added. 

The spokesperson said New Delhi was not aware of the fate of the appeal made by Jadhav’s parents against the military court’s order to execute him. Islamabad had also not taken any decision so far on his parents’ visa applications.  

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  • International Court of Justice stays Indian spy's death

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