India, Pakistan In UN Court For Death Row Spy Case

India will ask the United Nations top court Monday to order Pakistan to take an alleged Indian spy off death row, in a case that could stoke fresh tensions after a deadly attack in Kashmir.Kulbhushan Sudhir Jadhav was arrested in Balochistan in March 2016 on charges of espionage and sentenced to death by a military court

THE HAGUE (UrduPoint / Pakistan Point News / NNI - 16th February, 2019) India will ask the United Nations top court Monday to order Pakistan to take an alleged Indian spy off death row, in a case that could stoke fresh tensions after a deadly attack in Kashmir.Kulbhushan Sudhir Jadhav was arrested in Balochistan in March 2016 on charges of espionage and sentenced to death by a military court.The International Court of Justice urgently ordered Pakistan in 2017 to stay the execution of Jadhav, pending hearings on the broader Indian case that take place this week in The Hague.The rare foray into the international courts for the nuclear-armed rivals could be another flashpoint after Thursdays suicide bombing in Indian- held Kashmir that killed 41 troops.New Delhis lawyers will present their arguments on Monday to the court, which was set up after World War II to resolve international disputes, followed by Pakistans on Tuesday.Jadhav, a former Indian navy officer, was accused of working for the Indian intelligence services in the province bordering Afghanistan.After a closed trial he was sentenced to death by a Pakistani military court on April 10, 2017, on charges of espionage, sabotage and terrorism.India claims Jadhav was not a spy, and alleged that he was kidnapped in Pakistan.

New Delhi in court documents is asking that the ICJ order Islamabad to annul the sentence.It accused Islamabad of violating the Vienna Convention by failing to provide him with consular access, as well as breaking human rights law.If Pakistan is unable to quash Jadhavs death sentence, Islamabad should be found in violation of international law and treaties, and be told to release the convicted Indian national forthwith, India said.India accused Pakistan in 2017 of harassing Jadhavs family during a visit, saying their meeting was held in an atmosphere of coercion.Islamabad reacted coolly to the ICJs urgent order to stay Jadhavs execution at the time, saying it has not changed the status of commander Jadhavs case in any manner.

The ICJs decision will likely come months after this weeks hearings.On the other hand, Pakistan has presented evidence obtained from Commander Jadhav after his arrest, and during the criminal process leading to his conviction as amply demonstrating his activities in fomenting terrorism and engaging in espionage in Pakistan.Pakistan will make its closing submissions on Thursday and it is expected that the ICJ decision will be delivered by the summer this year.The ICJ has repeatedly stated that it is not a Criminal Court of Appeal and effective review of a conviction is available before the domestic Courts.The ICJ has set a timetable for the public hearing in the case from February 18 to 21 in The Hague and Harish Salve, who represents India in the case, is expected to argue first on February 18.Khawar Qureshi will make submissions on February 19 from Islamabads side.

Then India will reply on February 20 while Islamabad will make its closing submissions on February 21. It is expected that the ICJs decision may be delivered by the summer of 2019.Pakistans Ministry of Foreign Affairs released summary of the case to set out the key facts and core issues.

This document adopts the following structure:On 3 March 2016, Commander Kulbhushan Jadhav was arrested in the Balochistan province of Pakistan, having illegally and clandestinely entered Pakistan from Iranian territory.

India has said that Commander Jadhav was "kidnapped" from Iran - but has provided no substantive evidence underpinning such an allegation. Commander Jadhav was carrying an Indian passport in the name of Hussein Mubarak Patel.On 25 March 2016, Pakistan shared with the world at large Commander Jadhavs confession (confirmed before a Magistrate) as a serving officer of the Indian Navy, who was operating for Indias Research & Analysis Wing ("RAW"), to having been involved in crimes of espionage and terrorism directed toward the infrastructure and people of Pakistan, including the Gwadar port and various facilities involved in the prominent China-Pakistan Economic Corridor (CPEC).

India says that Commander Jadhav retired from the Indian Navy (but has not said when or provided any further detail). From 25 March 2016, India sought consular access to Commander Jadhav, which India says was denied.

Pakistan says that an express agreement between India and Pakistan (drafted by India) headed Agreement on Consular Access entered into in 2008, at Article (vi), entitles either State to consider a request for Consular Access upon the merits where it involves a person implicated in National Security matters.Pakistan sent a letter making specific requests of India to assist in the investigation of Commander Jadhav on 23 January 2017 attaching copies of the authentic Indian passport Commander Jadhav was using in the name of Hussein Mubarak Patel, as well as the FIR and other material relating to the investigation into Commander Jadhavs activities.

India did not provide any assistance at all nor any evidence (either inculpatory or exculpatory) of Commander Jadhav.Commander Jadhav was provided with legal representation, and after several hearings, he was tried and convicted by a Military Court in Pakistan, which passed the death sentence on 10 April 2017.

Pakistans legal system, including its Constitution, provides for the availability of clemency petitions as of right to the Chief of Army Staff and then to the President of Pakistan.In addition, judicial review by Pakistans High Court and Supreme Court of the Military Court process and judgment is available pursuant to Article 199 of the Constitution of Pakistan.

Pakistans Courts have frequently stayed sentences imposed by the Military Court at the request of the convict or his family, often within hours of the sentence being passed. No application of this nature has ever been made to the Pakistani Courts by Commander Jadhav or his family.Both India and Pakistan have previously signed and become parties to the Vienna Convention on Consular Relations 1963 ("VCCR 1963").

Furthermore, both India and Pakistan signed and became parties to a separate agreement (called the Optional Protocol) that gives the ICJ jurisdiction over disputes arising out of the interpretation or application of the VCCR 1963. NNI