ICJ has not taken a position against Pakistan on Yadhav

ICJ has not taken a position against Pakistan on Yadhav

SAM Report,

Following India petitioning the International Court of Justice (ICJ) to move against the decision of the Pakistani Field General Court Martial which sentenced alleged Indian spy, Kulbashan Yadhav, to death on charges of espionage, Pakistan has called the move an attempt to deviate from what it alleges is India’s ‘state sponsored terrorism.’

Khawaja Asif, Pakistan’s defense minister, tweeted that the Indian letter to ICJ is an attempt to divert attention from state-sponsored terrorism..

Pakistan Advisor on Foreign Affairs, Sartaj Aziz told the media Thursday that Pakistan would respond to the letter by the ICJ shortly after analysing the realities concerning it.

“We are analysing the Indian petition and the International Court of Justice’s (ICJ) authority [on the case],” he said.

 On May 8, India submitted an application to the International Court of Justice against Pakistan’s arrest of the alleged Indian spy, Kulbhushan Jadhav. The ICJ President, Judge Ronny Abraham, wrote to the Government of Pakistan on May 9, instructing on the refraining of taking any action on the Jadhav case until the ICJ has had a chance to examine India’s petition against Pakistan.

In his letter to the Pakistani government, Judge Abraham said he was acting under his Article 74 (4) powers.  Article 74, section 4 of the rules of the court states: “Pending the meeting of the court, the president may call upon the parties to act in such a way as will enable any order the court may make on the request for provisional measures to have its appropriate effects”.

Although India had petitioned the ICJ to move against the decision of the Pakistani Field General’s Court Martial which sentenced Jadhav to death on charges of espionage, observers point out that India has in the past contested ICJ authority to decide on disputes between the two countries.

India had used this argument in 1999, when Pakistan took it to court, after a Pakistani military plane had been shot down in the Indian air space over the Rann of Kutch.

India had lost the case at the ICJ when it challenged the right of the International Civil Aviation Organisation to declare India’s move illegal over banning Pakistani flights in its airspace  during the East Pakistan civil war. India had claimed at the time that its decision was because of a terrorist hijacking of its airplane.

The current Indian argument being made at the ICG is based on what it claims is Pakistan’s violations of the 1963 Vienna Convention on Consular Relations, which allows foreign country prisoners to be visited by their national diplomatic representatives.

In its application, India claims that Jadhav was abducted from Iran where he was supposedly on business and “then shown to have been arrested in Baluchistan” on March 3. India has accepted that Jadhav was a serving officer in the Indian Navy.

The ICJ press release states that India contends that it was not informed of Mr. Jadhav’s detention until long after his arrest and that Pakistan had failed to inform the accused of his rights. It further alleges that, in violation of the Vienna Convention, the authorities of Pakistan are denying India its right of consular access to Mr. Jadhav, despite its repeated requests.

Meanwhile Pakistan is maintaining that the 2008 bilateral agreement on Consular Access signed between the two countries allowed for both sides to make an exception to the granting of access when issues of “national security” were involved.

“We have made it clear time and again that Pakistan and India have signed an agreement on consular access in 2008, and according to clause VI of that agreement, decision to grant consular access in cases where detentions and arrests relate to political or security matters, the request of consular access will be decided on merits of the case,” Nafees Zakaria, foreign office spokesperson clarified earlier in April.

India claims that that no evidence has been provided against Jadhav, despite the fact the Indian officer himself had given detailed accounts of his activity against Pakistan and had also recorded a confessional video which had been released by the ISPR.

Global analysts meanwhile point out that the International Court of Justice provisional measures are not legally binding and that the ICG has not been able to prevent death sentences being carried out in previous instances such as the first major case it heard in 1999, against the impending execution of German national Walter LaGrand, sentenced to death in a bank robbery case in the United States. The Hague complied with Germany’s request for a provisional stand-still against execution, just as it has done in Jadhav’s case, but the United States Supreme Court refused to enforce this provisional order.

The United States’ Solicitor-General argued that International Court of Justice provisional measures are not legally binding and Walter LaGrand was executed on March 3, 1999.