India fails to engage ICJ with any ‘solid argument’ in Jadhav’s case

February 22,2019

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ISLAMABAD: Legal teams of Pakistan and India concluded their arguments into Indian spy Kulbhushan Jadhav’s case at the International Court of Justice (ICJ) in The Hague on Thursday.

The ICJ is expected to deliver its verdict in coming summer this year. The four-day hearing in the Jadhav’s case opened on Monday when Indian legal team told the court that Pakistan should have refrained from using words such as “ridiculous” and “nonsense” in response to the approach adopted by India. But Pakistan’s counsel Khawar Qureshi argued that “these words were, unfortunately, required and were given meaning by the context created by India - not Pakistan. India could not stop itself from exaggeration even on this simple issue. As for its own reply submissions, Pakistan has no need to add padding. The facts speak loud and clear enough by themselves. India’s attempt to drown out the truth with background noise simply will not work.”

Khawar Qureshi further argued that Pakistan intends to be brief and succinct in its reply. That is because India has made no real let alone convincing arguments, he pleaded before the ICJ. However, Pakistan must point out yet further striking examples of India’s approach advanced in the guise of reply arguments the other day. India persists in contumelious conduct and failed to engage with the evidence that states made an exception for espionage prior to the VCCR being adopted, he further argued.

About the kidnap fiction claim by Indian authorities, Pakistan’s lead counsel further argued, “by failing to avail itself of an opportunity before this court to explain what steps it took to seek an investigation within Iran to support its kidnap fiction, India nevertheless expects the court to accept it has a reasonable basis to advance this assertion. It advanced no evidence, merely bare unsupported and convenient speculation.”

Indeed, India’s failure to identify any attempt by India to engage with the Iranian authorities in respect of its “kidnap fiction” is left completely unexplained - because providing an explanation would expose the fiction, the arguing counsel stated.

Pakistan’s reference to three independent Indian journalists was to illustrate that their independent investigations, at the very least, corroborated commander Jadhav’s own confession of being a RAW agent. India’s response, namely to cling steadfastly to the position that words mean what India wants them to mean, was to assert that Pakistan had used the words “clinching and convincing”17 as well as “unimpeachable”18 to describe the evidential value of the investigations made by the journalists, Khawar Qureshi added.

Pakistan’s lawyer said India simply cannot continue to suggest that there is not a “scintilla of evidence” other than Commander Jadhav’s confession to suggest that he was an Indian agent. Indeed, India itself in its own pleading had adopted a blatantly contradictory position when it stated, “what was the other evidence (apart from the patently contrived confession and forged passport) from which it could be established that Jadhav was engaging in acts of spying and terrorism” (emphasis added), he argued.

Is it permissible for a party to “chop and change” its case without consequence, asked Khawar Qureshi. “India has also asserted that there was no need to address the passport issue as this had no legal consequence and Pakistan’s submissions were mere rhetoric.

Submissions which (as the court was shown) were based upon clear, compelling, un-contradicted expert evidence, it was rhetoric that has been used throughout by India alone by way of hollow response on this issue, Khawar Qureshi argued. The suggestion that India’s conduct in this regard has no legal consequence, if accepted, would allow a serious transgression of the duty of good faith never mind fundamental international obligations to go unchecked, he added. Is the approach of India as it suggests really to “hammer the facts, hammer the law,” asked Qureshi. Pakistan submits yes, insofar as India seeks to twist the facts and break the law to suit its purpose. India’s conduct cannot go unchecked - it is brazenly trampling on red lines.

Giving a reference of a secret report, Qureshi said, “Having sought to adduce a document purportedly dated 26 December, 2017 which formed a seven-page annex (headed “SECRET”) to its reply served on 17th April 2018, and underpinned approximately 15% of the written pleading, when repeatedly pushed by Pakistan, India rebuffed all requests by Pakistan to check the accuracy of the reply after it was filed.”

However, yet again, he further argued that when Pakistan made it clear that it intended to expose the manufactured nature of the document, India sought to effect a correction to the date of the 9 “Secret Report” on 23 January, 2019 (with reference to a letter purportedly dated 8 August, 2018) (presumably as a “slip/error” to the date of the said document), without any regard to Article 52(3) of the Rules of Court (1978) which provides for correction only “with consent or leave of the president”. This is consistent with India’s approach. It appears to believe that it has no duty to ensure accuracy in its pleadings or to effect timely corrections, and that there are no consequence for its blatant inaccuracies otherwise.

Ultimately, India now contends that even this “report” is irrelevant, Qureshi added. In his concluding arguments, Qureshi said, Pakistan was driven to make trenchant observations in its rejoinder in the face of India’s brazen distortion of the 2008 agreement and the doctoring of the military experts’ report. Even as at the commencement of the oral phase of these proceedings, Pakistan expected India to show some respect to the court, if not Pakistan, and if not the independent experts.

Pakistan was (unfortunately) compelled to make trenchant oral submissions in this context. India’s position is as devoid of legal merit now as it was on 8 May, 2017 if not even more so in light of its brazen continuous course. India’s claim for relief remains as far-fetched now as it was then, Qureshi concluded.


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