ICJ can’t terminate Yadav’s death sentence: legal experts

ISLAMABAD: Legal experts have opined that the International Court of Justice (ICJ) cannot terminate the death sentence of Indian spy agent Kulbhushan Yadav and grant of stay over his execution is not an 'unprecedented' development because it happens at the provisional stage in these types of cases. 

They said the ICJ would only review whether the demands raised by India like the consular access to Kulbhushan Yadav should be met, and it cannot pass judgement to make an end to his death sentence given after a due legal process.

Talking to The News, Ahmer Bilal Soofi, who has a long experience with regard to international law, said the ICJ granted stay over the execution at the provisional stage of three cases that were taken up by it in the past. 

"It is not the end as being portrayed by some segments because the case of Kulbhushan Yadav has just started in the ICJ. There is a silver lining for Pakistan as it has a chance to highlight involvement of India in the terrorist activities within its territory. In this way the international community will come to know the genuine concerns of Pakistan related to its national security," he said.

Apart from all other 14 cases currently pending with the ICJ, the case of the Kulbhushan Yadav has two basic contradictions that have made this case quite controversial in the eyes of the legal and diplomatic fraternity.

First, in the 14 cases  pending with the ICJ, the member states have accepted the jurisdiction of ICJ through a special agreement or by virtue of a jurisdictional clause or a declaration. Secondly, all these cases are related to mutual disputes especially over territorial boundaries and agreements. 

Ahmer Bilal Soofi said in the case of Kulbhushan Yadav, Pakistan has not accepted the jurisdiction of ICJ and contrary to all other pending case it is about the death sentence of a foreign agent who twice made confessional statements about his direct involvement in the acts of terrorism in Pakistan.

He pointed out that as far as due legal process is concerned, Kulbhushan Yadav cannot be hanged at least in next 150 days according to the Army Act.  The sources said the Pakistan intelligence agencies have some more solid proofs regarding involvement of Kulbhushan Yadav in the terror activities in Pakistan that have so far not been revealed to the media due to some reasons. 

Prominent legal practitioner Faisal Naqvi told this correspondent that the consular access cannot be taken for granted according to the November 2008 agreement between Pakistan and India, especially in the case of Kulbhushan Yadav, who faced the charges, including spying for India, working against Pakistan’s integrity, sponsoring terrorism in the country and attempting to destabilise the state.

"The ICJ will never pass any judgement making an end to the death sentence of Kulbhushan Yadav because it will only review the demands raised by India such as the Consular access and other issues," he said.

He said there is no violation of the Vienna Convention in denying the consular access to Kulbhushan Yadav because there is an exception in it about the national security of all the member states. Faisal Naqvi said India is now facing a gigantic task because it has to prove before the ICJ that Kulbhushan Yadav is not a terrorist in the face of the documentary evidence by Pakistan.