Kulbhushan Jadhav hearing: From 'snubbed' handshake to charges of 'terror policy', India, Pakistan battled it out at ICJ

In the aftermath of the Pulwama attack, India and Pakistan crossed swords during the hearing of the Kulbhushan Jadhav case at The Hague. The International Court of Justice (ICJ), is holding a public hearing of the case of Jadhav, a retired naval officer who is lodged in a Pakistani prison on charges of being a "spy".

Pakistan claims that its security forces arrested Jadhav in the restive Balochistan province in 2016 after he reportedly entered from Iran. India has, however, maintained that the retired naval officer was abducted in Iran, where he had business interests after retiring from the navy.

The verbal submissions made during the hearings left little doubt that representatives of both countries were also addressing the domestic audience in their respective countries, as the media remained glued to the subject.

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From a "snubbed" handshake to strongly-worded arguments against each other, the hearing at The Hague was peppered with some tense moments. Here's a roundup.

Representational image. UN Website

Day 1

Even before the day's proceedings could begin, what made headlines was an apparent snub by India to Pakistan. Plastered on newspaper front pages was MEA joint secretary Deepak Mittal ignoring a handshake offered by a Pakistani official, and responding with a "namaste" instead.

The first day of the hearing was for India to make its point, explaining why the ICJ should direct Pakistan to retry Jadhav in a civilian court and grant him consular access.

Indian counsel Harish Salve used some strong terminology to make his point. Calling the military court trial of Jadhav, "farcical", Salve accused Pakistan of “knowingly, wilfully and brazenly” flouting the Vienna Convention on Consular Relations.

Salve claimed that the way Pakistan's military courts function will fail to satisfy "even the minimum standard of due process"

"India seeks relief in declaring that the trial by the military court in Pakistan hopelessly fails to satisfy even the minimum standards of due process... A foreign detainee also has a right to life but Pakistan has sentenced 161 civilians to death in their military courts in opaque proceedings in the last two years."

Salve also claimed that the entire charade of arresting Jadhav and then portraying him as an Indian spy was nothing but propaganda.

"Pakistan has in custody an Indian national who has been publicly portrayed to be a terrorist and Indian agent creating unrest in Balochistan...," he said, adding that there is no doubt that Pakistan was using this as a propaganda tool.

Salve said Pakistan filed the FIR almost a month after the arrest of Jadhav and did not share even a "shred of credible evidence" against him. He claimed that in a clear violation of Vienna Convention, Pakistan detained the Indian citizen and did not notify the Indian government until three months after his arrest. Salve further claimed that Jadhav did not get any lawyer during his trial. He also said that Pakistan was embarrassed to disclose the charges against Jadhav.

Day 2

Pakistan on Tuesday responded to India with equal fervour, insisting that Jadhav was an Indian Navy officer who infiltrated in Pakistan on R&AW's bidding to create unrest and kill innocent Pakistani citizens.

Khawar Qureshi, the lawyer representing Pakistani side, argued in a heated, and often personal presentation that repeatedly referenced Prime Minister Narendra Modi and accused India of engaging in "political theatre," "grandstanding," and presenting its case in "bad faith."

"These are proceedings launched for political theatre, making a claim for relief that is unsustainable and that should be dismissed," he told judges.

Qureshi also alleged that Jadhav was an "instrument of India's official policy of terror".

On the question of granting consular access, Qureshi said that "a decision regarding Jadhav's nationality has not yet been made" and "India did not state whether he is Kulbushan Jadhav or Hussain Mubarak Patel." "How can India demand consular access when it did not confirm Jadhav's nationality?" he questioned.

Jadhav was alleged to have been caught in possession of a fake passport stating his identity as Hussain Mubarak Patel. India has admitted to this, however, it stated that this was not a crime of such a magnitude that he could be sentenced to death. "Just because he carries such a passport, it doesn't mean he was there to carry out terror activities," Salve answered back.

Day 3

On the third day, India got a chance to reply to Pakistan's rebuttal. First up, it slammed Pakistan for lowering the level of arguments by resorting to highly personal and abusive remarks.

"The language echoed in this court... perhaps this court may lay down some red lines. The transcript is peppered with words such as shameless, nonsense, disgraceful, arrogant... India takes exception to being addressed in this fashion in an international court. Indian culture prevents me from using similar language...

"Humpty-Dumpty has no place in this court," Salve said, insisting that criticism of a sovereign state must be in a language consistent with its dignity.

Salve said that the judicial review process available to Jadhav in Pakistan was “hopelessly insufficient,” while Islamabad was basing its case entirely on claims around a fake passport and an "extracted confession."

Slamming the Pakistani side for whipping up rhetoric rather than countering facts with evidence, Salve said that India hammered on facts while Pakistan hammered on a proverbial table.

Using a quote popular in courtroom parlance, Salve said, "When you are strong on law you hammer the law, when you are strong on facts you hammer the facts and when you are strong on neither, you hammer the table... Pakistan has hammered the proverbial table. India has hammered facts".

Salve invoked the 26/11 Mumbai attacks to highlight that Pakistan doesn't walk the talk when it comes to conducting fair trials.

"Jadhav’s trial was completed in six months? Four months? How many weeks?...Now with reference to the Mumbai attacks...call them non-state actors, but should we allow them to cross the border and kill 150 people in Mumbai? Explain it to me. Why can’t we complete that trial?... What has happened to the 150 people killed in Mumbai? Nothing."

Salve also invoked the trial of 26/11 attack convict Ajmal Kasab to make a point about a fair judicial process.

In Kasab's case, he was caught red-handed by brave police officers in the heart of Mumbai; the Supreme Court of India examined materials on record first-hand since it was a case of death sentence. This is called review, he said.

Answering Pakistan's claim that India never clarified on Jadhav's nationality, Salve said that unlike Pakistan, India never denies the nationality of its citizens in another country. This was perhaps a veiled dig at Pakistan regularly refusing to accept Pakistani terrorists killed or captured by Indian security forces. Salve said that Indian nationals are not the kind whose nationality needs to be denied.

He said, "Jadhav has become a pawn in Pakistan's tool to divert international scrutiny from itself," adding that Pakistan is used as a safe haven by UN-proscribed terrorist entities like al-Qaeda, LeT, JeM, Haqqani Network, and individuals like JuD chief Hafiz Saeed and underworld don Dawood Ibrahim.

Day 4

The final day of the hearing is customarily given to the respondent in the case. Since it was India that approached the ICJ, Pakistan presented arguments on Thursday.

Making final submissions, Qureshi said, "India's claim for relief must be dismissed or declared inadmissible... India's claim for relief (in the Jadhav case) remains as far-fetched now as it was then (8 May, 2017)," he told the judges in his concluding remarks.

Closing the arguments, Pakistan's Attorney General Anwar Mansoor Khan said, "India seeks relief which it cannot claim from this court."

Khan assured the court that the process of judicial review in Pakistan is robust and Jadhav can avail it if he chooses. "Jadhav has been charged with terrorism for which an FIR has been registered with the police, which is a civilian agency. The military court has sufficient proof of espionage and the said military court, on the available evidence and the judicial confession, proceeded to convict him. Although he was given the option of going for a judicial review, he has refused to do so," Khan told the court.

On the question of consular access, Khan merely said, "surely (it) was not allowed for good reason... specially for the reason that commander Jadhav was involved in espionage."

After his submission, ICJ top judge Abdulqawi Ahmed Yusuf adjourned the hearing and said a date for the judgment would be announced later.

With inputs from International Court of Justice website and PTI