Need to decide whether to go back again to ICJ: Harish Salve on Kulbhushan Jadhav Case

Senior advocate Harish Salve, speaking on the Kulbhushan Jadhav matter, said that a point has come in the case where India would have to decide whether to go to the International Court of Justice (ICJ) for further consequential directions.

Responding to a query on the current status of the Jadhav matter, as it has been a while since the ICJ verdict and also nothing has been heard so far, Salve said that India has been in touch with Pakistan through various channels.

“I think we have reached a point where we may have to decide whether to go to ICJ for further consequential directions. Because Pakistan has not moved ahead,” said Salve.

He further said, “We were hoping that through back channel, we may be able to persuade Pakistan to let him go. If they want to say on humanitarian ground or whatever, we want him back. We said let him go. Because it has become a big ego problem in Pakistan. So, we were hoping that they will let him go. They haven't," he said, while answering a question on the current situation in the matter.”

He was speaking at the Akhila Bhartiya Adhivakta Parishad’s Dattopant Thengadi Lecture Series on the Kulbhushan Jadhav case and his experience at the ICJ. The lecture was live-streamed.

Pakistan had alleged that Jadhav was a senior Indian intelligence officer who entered the country illegally to carry out acts of sabotage at the time of his arrest. He has been sentenced to death by a Pakistan military court on terrorism charges.

Salve insisted that Pakistan has a serious problem on its hands, as other than the confession, it has nothing. Detailing on Pakistan’s non co-operation, Salve said that till date, Pakistan has refused to share the FIR, the chargesheet and also the judgment of the military court.

Also, the confession does not disclose any particular offence, he added.

He also cited the limitations in fighting the case at the ICJ. Salve said the dispute had to be brought under the Vienna Convention, as it should fall under the ICJ’s treaty jurisdiction. Salve said that breach of basic human rights by Pakistan was not available as a ground for a dispute between India and Pakistan. “That is the limitation we were stuck with,” added Salve.

Salve said that following the ICJ order, Pakistan had granted consular access but it was too late and now India is in a tussle with Pakistan to get them to set up the machinery.

He said that Pakistan has raised a very interesting defence that Jadhav is a spy, and the Vienna Convention does not apply to spies. “India has pressed for either his release or for a procedure consistent with the due process to be put in place,” said Salve.

Salve insisted that they managed to persuade the ICJ that the interpretation of the Vienna Convention must be imbued with the principles of human rights and the general value system.

Citing the global stature of India, Salve said, “Today India’s stature in the global community is such that, within a matter of two weeks we managed to get a hearing in the ICJ for putting in place provisional measures.”

In July 2019, the ICJ ordered Pakistan not to execute Jadhav and asked it to reconsider the death sentence awarded to him by a military court.