Sunday May 26, 2024

ICJ stays Indian spy’s execution

By our correspondents
May 19, 2017

Says it has jurisdiction to hear case; espionage suspects not excluded from Vienna Convention; Yadav should be given consular access; Sartaj says provisional order not unusual; FO says ICJ has no jurisdiction to hear case; AGP says verdict doesn’t change Pak stance; Marriyum says politicking on issue to harm national interest;
PTI seeks explanation from PM over ICJ verdict;
PPP says govt was ill-prepared to contest case

THE HAGUE: The International Court of Justice (ICJ) on Thursday ordered Pakistan to stay the execution of an Indian national convicted of spying.

Judges at the ICJ ruled in a unanimous and binding decision that Kulbhushan Sudhir Yadav must not be put to death by Islamabad until they have had time to pass the final judgement in the case. 

Kulbhushan was arrested in Balochistan in March 2016 and Pakistani officials said he had confessed to spying for Indian intelligence services. He was convicted last month by a military court and sentenced to death. But India has alleged that he is not a spy, and that he was kidnapped by Pakistan. It lodged a case against Islamabad earlier this month, accusing the Pakistanis of violating the Vienna Convention by failing to provide him with consular access, as well as breaking the international human rights law. New Delhi also appealed for the court to impose emergency measures to suspend Kulbhushan’s execution until the legal battle in The Hague had concluded.

"Pakistan shall take all measures at its disposal to ensure that Mr Yadav is not executed pending the final decision in these proceedings," said the court´s president Ronny Abraham. He also ordered Pakistan to inform the tribunal that it had implemented the decision, and stressed that the ICJ decisions were binding on all member states.

Indian Foreign Minister Sushma Swaraj welcomed the ruling and said in a Tweet that it was "a great relief to the family of Kulbhushan and people of India".

Outlining the reasons for its decision, Abraham said Pakistan had "given no assurance" Kulbhushan would not be executed before the court delivered its final decision.

"The mere fact that Mr Yadav is under a death sentence and might therefore be executed is sufficient to demonstrate the existence of a risk of irreparable prejudice to the rights claimed by India," he added. Therefore, the court was "satisfied" of the "urgency" of the case.

The ICJ said it has jurisdiction to hear the case and the espionage accused cannot be excluded from the Vienna Convention. It said Kulbhushan should be given consular access.

The case -- a rare foray for Pakistan reacted coolly, with the attorney general's office stressing that the outcome was an interim order "without prejudice to the final determination of the merits" of India's case.

"The court's decision today has not changed the status of commander Jadhav's case in any manner," it said in a statement, adding he could still apply for clemency.

The ICJ was set up in 1945 to rule on disputes between nations in accordance with international law. The last time Pakistan and India took a dispute to the ICJ was in 1999 when Islamabad protested the downing of a Pakistan Navy plane that killed 16 people. But the tribunal decided it was not competent to rule in the dispute and closed the case. -- Agencies

Mariana Baabar, Mumtaz Alvi and Asim Yasin add from Islamabad: Pakistan said that it was satisfied with the manner its lawyers had presented their case at the ICJ as India had no substance in the case and reiterated that its stance on Kulbhushan had not changed at all, despite the announcement from the ICJ.

Islamabad very much intended to take the case to its logical end, as the court has clearly underscored that the provisional measures are without prejudice to the final determination of the merits and jurisdiction of the case.

“Granting stay in provisional order is not an unusual thing. Stay is granted in most of the appeals. Our lawyers had presented the case very well in the ICJ. The court had only expressed its viewpoint on providing consular access to Kulbhushan Yadav. However, security is a major reason in providing consular access to Indian spy,” Adviser to Prime Minister on Foreign Affairs Sartaj Aziz said in a statement.

Meanwhile, the Foreign Office in a statement quoted the Attorney General of Pakistan Ashtar Ausaf Ali, who stated that in Thursday’s interim order, the ICJ has stated that by way of provisional measures, the status quo be maintained in the case of Commander Yadav.

“The provisional measures are a procedural process only to enable the court to have full consideration at a later hearing. These measures have no bearing whatsoever on the final decision of the court,” the attorney general added.

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 Yadav,” he stated.

Pakistan’s status, he said, had not changed in Commander Yadav’s case in any manner.

“In our submissions on 15 May, we had assured the court unambiguously that Commander Yadav would be provided every opportunity and remedy available under the law to defend his case. Commander Yadav still has ample time to petition for clemency. To recall, we had in our presentation on 15 May, proposed to the court that a final hearing be held on the merits and maintainability of the case as early as possible. We are determined to pursue this case to its logical end,” he concluded.

The Foreign Office claimed that the ICJ has no jurisdiction to hear the case of Kulbhushan as it pertains to the national security of Pakistan.

“Pakistan's reply (to the court) was submitted in line with Article 36 of the Vienna Convention, explaining that Pakistan, in some issues, does not recognise the jurisdiction of the ICJ. India was trying to portray Kulbhushan Yadav case as a humanitarian issue to divert world attention from its state atrocities in IHK,” the FO Spokesman remarked during a media briefing.

To a query, he responded that after India stood exposed in state sponsored terrorism, terror financing, spying and subversive activities, it has desperately tried to divert the world attention by presenting Kulbhushan's case from humanitarian angle. "India is trying to defend a person whose actions have led to the killing of scores of innocent Pakistanis," he said.

Explaining the background of Pakistan’s decision to enter into a Revised Declaration under Article 36(2) of the statute of the ICJ on March 29, 2017, the spokesman said that this was common practice.

“It is stronger declaration than the earlier that was entered in 1960. The process of revising the declaration entailed an extensive and exhaustive process of multi-stakeholders consultations within the Government of Pakistan, spread over two years. The objective of this exercise was to better protect Pakistan’s interest and at the same time continue to be a responsible member of the United Nations. Many clauses have been added to the earlier declaration including, excluding all matters related to the national security of Islamic Republic of Pakistan, which in the current case totally excludes the jurisdiction of ICJ under Article 36(2) in our view,” he explained.

Meanwhile, the PTI called on Prime Minister Nawaz Sharif to explain the outcome of the ICJ proceedings on India’s plea against Kulbhushan’s conviction by Pakistani court. 

The PTI Central Secretary Information, Shafqat Mehmood, demanded of the prime minister to disclose all details of his 'secret' meetings with Indian businessmen Sajjan Jindal. Shafqat raised seven critical questions on the matter and sought explanation from the prime minister in this connection.

He demanded that the PM should come before the House to explain why Pakistan did not appoint an ad hoc judge it had a right to and why the Foreign Office did not take legal advice before initiating correspondence on the issue. He asked why the government selected a lawyer, who has not a single international law case reported from the UK Supreme Court and what was the reason to engage London Queen’s Counsel (QC) who was based in Qatar? He further pressed the PM to explain why his government assigned the task to a lawyer who has never argued a case independently before the ICJ and what compelled his government to send a first year associate from Attorney General’s Office instead of AG himself to the ICJ.

Shafqat said decision is a clear outcome of the rendezvous of Nawaz Sharif and his Indian friend Jindal. He said apprehensions regarding the decision came true. 

PTI lawmaker Dr Shireen Mazari charged that the Sharif government deliberately played the Indian game by going to respond to ICJ when it should have refused to accept ICJ's jurisdiction as it is entitled to do. 

The PPP demanded summoning the meeting of Parliamentary Committee on National Security on the issue of Kulbhushan, saying that government had mishandled the case as it was ill-prepared to contest the case in the ICJ.

“Pakistan’s lawyer has presented our stance weakly and instead of 90 minutes he has completed his arguments in 50 minutes and Pakistan chose a lawyer to contest the case who lacked international experience,” said the PPP Vice President Senator Sherry Rehman while talking to media persons along with PPP Punjab Secretary General Nadeem Azal Gondal, Senator Salim Mandviwala, PPP Punjab Information Secretary Mustafa Nawaz Kokhar and Nazir Dhoki.

Sherry Rehman said the government was ill-prepared for contesting the case. “Kulbhushan was not only an Indian spy but also involved in terrorist activities and was arrested and it was a strong point that needs to be told,” she said.

She said the political parties did not play politics on the matter of national security. 

Minister of State for Information Marriyum Aurangzeb said any reporting on the interim order of ICJ on Kulbhushan case should be done responsibly. She said politicking on the issue will harm the national interest.

Marriyum said sensationalising this issue by the media will not serve the national cause. She said Pakistan will vigorously fight this case without compromising on its national security.

The minister said Pakistan hired the best legal counsels in this case and any speculations in this regard were baseless. Marriyum said that the Ministry of Law was scrutinising the judgment carefully and no compromise would be made on the national security.

 For ICJ statement, text of lawyers' arguments, visit