Vienna Convention doesn’t apply to spy operations, Pakistan tells ICJ

ISLAMABAD: Pakistan has told the International Court of Justice (ICJ) in a counter memorial to the Indian claim that the Vienna Convention on Consular Relations, 1963, applies only to the legitimate visitors and does not cover clandestine operations.

In its memorial formally filed before the ICJ, Pakistan argued that Indian spy commander Kulbhushan Sudhir Jadhav was on an active duty and the only deduction that one could make was that he was a spy sent inside Pakistan on a special mission to carry out subversive activities.

A senior government officer privy to the development told media on condition of anonymity that India had no case to plead because it never denied that Jadhav was travelling on a passport on a cover or an assumed Muslim name “Mubarak Patel”.

The ICJ, a world court that sits at the Peace Palace in The Hague, is seized with an Indian complaint on the conviction of the Indian spy and had set a deadline of Dec 13 by which Pakistan had to submit its counter-pleadings or counter memorial against the Indian claims. The formal hearing of the case is expected to commence late February or early March next year.

Commander Jadhav was captured in Balochistan in March 2016 and he later confessed to his association with Indian intelligence agency Research and Analysis Wing (RAW) and his involvement in espionage and fomenting terrorism in Pakistan. In early 2017, the Field General Court Martial awarded death sentence to Jadhav and it was confirmed by Chief of the Army Staff Gen Qamar Bajwa on April 10 this year.

In its written pleadings, India had accused Pakistan of violating the Vienna Convention by not giving consular access to Jadhav and argued that the convention did not say anything that such access would not be available to an individual arrested on the allegation of espionage.

Khawar Qureshi QC, who pleaded Pakistan’s case at the initial stage, is expected to plead the case. On May 18, the ICJ through an interim order had stayed Jadhav’s execution after which the Foreign Office communicated to the ICJ that the government of Pakistan had instructed its all relevant departments to give effect to the order of the world court.

The government officer further said that India had no explanation why a serving naval commander working on secondment to RAW was travelling to and from inside Pakistan in the cover of a Muslim name.

In the counter-pleadings, the officer said, Pakistan had argued that Jadhav was on active duty and the only deduction that one could make was that he was a spy sent on a special mission, adding that only a state which adheres to legitimate actions with clean hands could request the world court to intervene in a matter between two countries.

‘‘But India is a habitual violator of human rights and has not honoured since long the United Nations resolutions for holding plebiscite in Kashmir,’’ Pakistan argued, emphasising that the use of pellet guns on peaceful protesters in held Kashmir was a case in point.

Thus sending Jadhav inside Pakistan by giving him a false identity on espionage and funding of terrorists activities were some of the reasons which disentitled India from invoking jurisdiction of ICJ, Pakistan argued.

Islamabad, on humanitarian grounds, has already offered New Delhi to hold a meeting between Jadhav, his wife, mother and an Indian diplomat on Dec 25.

In October last year, Islamabad had formally communicated about its designation of former chief justice of the Supreme Court of Pakistan, Justice Tassaduq Hussain Jillani, to be its judge ad hoc.

Soon after a meeting with ICJ’s president Ronny Abraham and delegations of Pakistan and Indian in the Netherlands on June 8, Attorney General (AG) Ashtar Ausaf Ali had informed the world court about Pakistan’s intention of appointing judge ad hoc to sit on the ICJ bench for all proceedings, including substantive hearing in the Jadhav case.

On July 5, the registrar of the world court was communicated by the foreign ministry that the AG will act as the agent for Pakistan in the case, which usually is a top functionary of the government who leads a delegation to represent country’s perspective and is also responsible for the future exchanges or information between Pakistan and ICJ, whereas Director General Foreign Affairs Dr Mohammad Faisal will continue to act as a co-agent.