Reply of the Republic of India

INTERNATIONAL COURT OF JUSTICE
JADHAV CASE
(India v. Pakistan)
REPLY
OF
THE REPUBLIC OF INDIA
17 APRIL 2018
INTERNATIONAL COURT OF JUSTICE
JADHAV CASE
(India v. Pakistan)
REPLY
OF
THE REPUBLIC OF INDIA
17 APRIL 2018
TABLE OF CONTENTS
I. EXECUTIVE SUMMARY ................................................................................ 1
II. FACTUAL BACKGROUND...................................................................................... 9
III. MEETING WITH MOTHER AND WIFE ............................................................. 18
IV. ABUSE OF PROCESS/RIGHTS AND LACK OF GOOD FAITH ..................................... 25
V. EX TURPI CAUSA (ILLEGALITY)/UNCLEAN HANDS/EX INJURIA JUS
NON ORITUR ..................................................................................................................... 30
VI. APPLICABILITY OF THE VIENNA CONVENTION .................................................. 34
VII. REPLY TO PAKISTAN’S SUBMISSION THAT THE VIENNA CONVENTION
IS NOT ENGAGED IN ESPIONAGE CASES ....................................................... 37
VIII. 2008 BILATERAL AGREEMENT HAS NO BEARING ON THE PRESENT
DISPUTE .................................................................................................................. 47
IX. RELIEF SOUGHT BY INDIA IS APPROPRIATE............................................... 51
LIST OF ANNEXES [1-18] ....................................................................................... 57
1
I. EXECUTIVE SUMMARY
1) The Counter Memorial filed by the Islamic Republic of Pakistan (Pakistan) is an
exercise in obfuscation and propaganda (making allegations without substance)instead
of engaging with and addressing the core issues i.e. its failure to fulfil its obligations
under the Vienna Convention on Consular Relations, 1963 (Vienna Convention).
2) Pakistan dwells at considerable length about the passport which it alleges was
recovered from Mr. Kulbhushan Sudhir Jadhav (Jadhav). Pakistan alleges that the
Republic of India (India) provided Jadhav with that passport and thereby gave him a
false Muslim identity to facilitate his movement in and out of Pakistan. These
allegations lack credibility. They are also unrelated to the issues in the present
proceedings. To give a legal cover to its exercise of making such allegations, Pakistan
has come with arguments of abuse of process, of Ex Turpi Causa and unclean hands
etc.
3) Pakistan has treated Jadhav as a pawn in its endeavour to wage a propaganda war
against India, as a riposte to the rising criticism it faces over its unabashed support for
violent terrorism including by way of State sponsored terrorism unleashed by it on an
increasing scale against India.
4) Unsurprisingly, its entire response to India’s Memorial proceeds on the premise that the
allegations made merit acceptance at face value.
5) In its Counter Memorial, which is riddled with inconsistencies, it rightly points out that
this Court is not a criminal appellate court, and yet it invites by its conduct a retrial of
the accused, which would be inevitable if this Court were to examine the truthfulness
of its litany of allegations against India and Jadhav. It fails to engage with the point that
the mechanism of consular access has come to be recognised as a vital element in
insuring the fairness of a process by which a foreign national is detained and tried by a
receiving State. Allegations made by the police of the receiving State, or findings of
Military Courts arrived at in trials held in camera, and in which the accused is not even
given the benefit of consular access, lack credibility. Unable to answer this fundamental
point, Pakistan invites this Court to examine extraneous matters by either accepting that
everything it alleges is true, or by converting itself into a criminal court of first instance
2
that will go into the provenance of the confession and the veracity of the allegations
surrounding the admittedly forged passport allegedly recovered from Jadhav.
6) Pakistan contends that India has failed to explain the matter relating to its allegations
that it seized a passport from Jadhav, which facially was, as per its allegations, a forgery
because it had a false Muslim identity. India does not accept that in the first instance
such a passport was recovered from Jadhav. Pakistan, however, invites this Court to
accept its assertions as being true and to then infer that “…Indian authorities who must
also have clothed him with a false Muslim identity (in pursuit of his illegal activities).”1.
7) Pakistan seeks to avoid the key issue (and an embarrassing issue) that the allegations
of “illegal activities” were not established in a trial that would meet the rigour of
minimum due process. By suggesting that India is acting in bad faith by seeking to
espouse the cause of a “spy” and a “terrorist”, Pakistan places the proverbial cart before
the horse. Not having established in a fair trial by an independent judicial tribunal and
by a process that conforms to the minimum due process standards, that Jadhav was
engaging in any illegal activities, Pakistan seeks to fill this gap between allegations and
proven facts by resorting to hyperbole.
8) Pakistan makes a point repeatedly about India’s alleged refusal to assist it in completing
the investigation. It finds fault with India not having produced the entire document by
which Pakistan had requested for assistance in the investigation. It fails to engage with
the point that in the first instance, it is Pakistan which has failed to agree to a Mutual
Legal Assistance Treaty (MLAT) with India. The reason why Pakistan has avoided
signing an MLAT is not far to seek. Pakistan can ill afford to have an MLAT with India,
considering its ceaseless campaign of terror, and its obdurate refusal to assist in
investigation into terror-related offences2. Pakistan openly provides safe haven to those
engaged in serious terror activities, including some whose names are on global terrorist
lists. It can hardly risk entering into a MLAT with India.
1 Counter Memorial, para 7(III).
2 At least 18 requests for investigation into terror related incidents including some horrendous incidents that
have shocked the global community are pending with Pakistan.
3
9) It conveniently chooses to reach out to the UN Charter and Security Council
Resolutions to found its right to seek cooperation in the matter of investigation, perhaps
hoping that its own credentials in the matter of sponsoring and financing terror would
be put to one side when considering its new-found respect displayed for these
Resolutions in its pleadings.
10) Besides, its letters of request for legal assistance facially are propaganda documents
rather than any serious request for investigating a crime. Beyond disclosing the First
Information Report (FIR), even at this stage Pakistan fails to disclose the evidence that
has been produced before its Military Court (other than the contrived confession) and
on the basis of which the court has found it appropriate to convict Jadhav and award
him the capital punishment. The request for cooperation in investigation is farcical and
merely an exercise in posturing.
11) The Counter Memorial admits that even before the charges were framed (much less
conviction by even its Military Court), on 25 March 2017 Pakistan “briefed” the P5
nations. India says that it now stands established that this matter is an exercise in
propaganda, a measure to deal with the increasing pressure on it by the world
community in the matter of cross border terrorism.
12) Having failed to find an answer to India’s allegations that Pakistan has violated the
Vienna Convention, it contrives legal principles to base its submissions. The first
submission is that India’s request is an abuse of process, an abuse of rights, an illegality,
and hit by the doctrine of unclean hands. Its citations are of dissenting opinions, or of
submissions made to this Court, which find no reflection in the judgement of the Court.
It conflates abuse of substantive rights, wrongful use of sovereignty and its incidents,
of actions which are contrary to public international law etc. It uses this as a springboard
to suggest that insisting upon a vital procedural safeguard guaranteed under the Vienna
Convention could be an abuse of some sort.
13) It overlooks that it is elementary to the doctrine of due process, that the more serious
the charge, the greater the need for compliance with procedural safeguards. The Vienna
Convention provides for a vital procedural safeguard – a mechanism by which the
accused can obtain the assistance of his home state in defending himself against
allegations made against him, in a trial being conducted in a foreign country. If the
allegations against Jadhav are so serious, i.e. that he was an Indian “spy” or worse that
4
he was a “terrorist”, it was all the more necessary that the trial should have been open
and fair; allowing Jadhav the full access to the assistance of his home state which could
have helped him in defending himself against these serious allegations. Pakistan seeks
to turn this on its head by suggesting that since the allegations were that he was a spy
and a terrorist, he forfeited his right to a fair trial as it were, and India’s insistence upon
consular access to help an accused in such a serious matter in arranging his defence
would be an abuse of some sort. This approach is outrageous.
14) Pakistan also invites this Court to carve out an exception from the rights under Article
36 of the Vienna Convention, suggesting that such rights are not to be made available
in the context of an individual against whom there is a prima facie case of espionage, a
person who possesses (allegedly) an “…authentic passport with a false…identity.”3 for
which the sending State refuses to provide an explanation. In support of this exception,
Pakistan is unable to cite any principle or authority, and so it turns the argument on its
head by contending that customary international law and practice do not provide any
support for the contention that Article 36 applies where such allegations are levelled
against an accused.
15) The plain language of Article 36 admits of no exceptions. The drafting history, parts of
which are relied upon by Pakistan establish that the problems of espionage were present
to the minds of those who negotiated the Vienna Convention and no exception was
carved out from Article 36 in relation to cases where the receiving State alleged
espionage. Pakistan recognises that it would have to provide strong evidence of
customary international law and practice to support a position that despite the
unconditional language of Article 36, some exception needs to be made for cases of
alleged espionage and terrorism. Not only would it be impermissible to disregard the
plain language of a treaty but a submission of the existence of such an exception is also
plainly counterintuitive. If Pakistan is right, then any such exception would be sufficient
to devour the rule, for all that a receiving State would have to do was to make allegations
of espionage, upon which the consular access rule would become inapplicable. The
history of disputes that have arisen in this context is replete with cases of alleged
espionage. Any such interpretation that is not only against the plain language, but
incompatible with the object and purpose of Article 36 is unacceptable.
3 Counter Memorial, para 7(II) - A contradiction in terms.
5
16) Pakistan’s argument admittedly finds no support in the language of Article 36, not in
the State practice or drafting history, and so it takes a convoluted position that India has
to establish the negative, viz that customary international law and state practice show
that there are no exceptions to the Vienna Convention. This approach is also hopeless.
17) Pakistan then attempts to find exceptions to the Vienna Convention in the Bilateral
Agreement between India and Pakistan dated 21 May 2008. It invites the Court to
misread this Bilateral Agreement.
18) Besides, the Vienna Convention recognises that States may have bilateral arrangements
that amplify or supplement the principles engrafted in the Convention. Article 73(2) of
the Convention does not recognise dilutions of the provisions of the multilateral
convention by bilateral treaties. Neither India nor Pakistan have ever suggested that
their Bilateral Agreement jettisons the Vienna Convention. The argument that the
Bilateral Agreement of 2008 somehow allows Pakistan to deny consular access
guaranteed in Article 36 of the Vienna Convention is an act of desperation, faced with
the fact that Pakistan finds itself in brazen violation of the Vienna Convention.
19) Finally, Pakistan seeks to salvage the poor reputation of its Military Courts, in the
matter of following due process, in the international community by relying upon a
report.4 The report, however, recognises that its system has manifest failings. Pakistan
fails to deny any of the allegations of the manner in which the military justice system
functions, and for which it has faced criticisms in reports of international agencies of
credibility and repute.
20) Without denying any of the allegations made, Pakistan uses the expression “kangaroo
courts”5 – if in its perception its courts have been functioning in a manner which the
international community has found unacceptable and for that reason should be
characterised as “kangaroo courts”, that is entirely a matter for Pakistan to introspect
upon and to deal with. India has not used any such expression despite provocation, for
using such language does not advance the case of a party.
4 Counter Memorial, Annex 142.
5 Counter Memorial, para 18.
6
21) The suggestion that Military Courts of India and Pakistan are in any manner similar is
misleading. Indian Military Courts have absolutely no jurisdiction over civilians.
Terrorists of Pakistani origin who have been caught red-handed have been tried in the
ordinary criminal courts and their appeals have been heard under the Code of Criminal
Procedure in the normal course. In the case of Mohammed Ajmal Mohammad Amir
Kasab v State of Maharashtra6 (Kasab), the procedure followed shows the rigorous
standards of due process in the Indian legal system. Kasab was represented by an
independent lawyer in the Trial Court, the High Court and the Supreme Court. In the
Supreme Court a former Additional Solicitor General was appointed to appear for
Kasab so that he would get legal assistance “…of a standard and quality that is not
available to a majority of Indian nationals approaching this Court against their
conviction and sentence.”7. In sharp contrast, the Lahore High Court Bar Association
passed a resolution threatening any lawyer who would dare to appear for Jadhav.8
Finally it merits mention that India offered consular access to Pakistan in Kasab’s case
(and in all other cases where Pakistanis are detained and then put on trial) however
serious the allegations be against these persons. It is Pakistan that almost invariably
refuses to accord assistance to its nationals.
22) Undoubtedly, the origins of the Military Courts, insofar as armed forces are concerned,
are rooted in the Army Act of 1911. India and Pakistan have a shared history of
legislation that precedes 1947, but the manner in which the constitutional due process
jurisprudence has evolved is at a great distance from the state of the law in Pakistan. In
Pakistan, Military Courts have been authorised to try civilians to the exclusion of the
regular criminal courts. No such thing has even been mooted in India.
23) The judgement of the Supreme Court of Pakistan in Said Zaman Khan v Federation of
Pakistan through Secretary, Ministry of Defence, Government of Pakistan9 establishes
that the review of the process and product of the military law is in sharp contrast to the
processes in India. This difference becomes apparent from reading the judgment of the
Supreme Court of India in Kasab’s case. On account of the law being amended to allow
6 Reply, Annex 1 (Mohammed Ajmal Mohammad Amir Kasab v State of Maharashtra, Criminal Appeals Nos.
1899-1900 of 2011).
7 Ibid., para 5.
8 Memorial, Annex 11.
9 Counter Memorial, Annex 81.
7
trials by the Military Courts, and an amendment made to the Constitution of Pakistan
by the 21st Amendment Act, 2015 to Article 175, the jurisdiction of the ordinary
criminal courts has been excluded in matters that fall in the domain of the Military
Courts. The only remedy to a person convicted by the Military Courts, is by proceedings
of judicial review, which by their very nature are narrow in their scope. In stark contrast,
the criminal trials in India are by regular courts having judges independent of the
executive.
24) In the case of trials under the terrorism laws10, the trials were conducted by a Designated
Court (presided over by a Sessions Judge or an Additional Sessions Judge), and an
appeal on facts and law lay directly to the Supreme Court. After the repeal of the
special law, the trial of a person accused of terrorism related crimes is conducted before
the Court of Session11 and an appeal lies to the High Court. In the case of death penalty,
the sentence has to be confirmed by the High Court. A full appeal on facts and law is
thus available to a convict. In death penalty cases the Supreme Court hears the appeals
on the merits of the conviction (if challenged). Even review petitions against judgments
in death penalty cases are heard in open court12.
25) The following passage in the judgement of the Supreme Court brings out the stark
difference between the two systems: “We may also state here that since it is a case of
death sentence, we intend to examine the materials on record first hand, in accordance
with the time-honoured practice of this Court, and come to our own conclusions on all
issues of facts and law, unbound by the findings of the trial court and the High Court.”13
It is unfortunate that Pakistan has sought to suggest that there is any degree of similarity
between the judicial systems in India and the Military Court system in Pakistan.
26) India reiterates its position that any relief by way of review and reconsideration, in the
face of the allegations being made by Pakistan even in this Court, and the kind of system
that prevails in Pakistan, would not be sufficient in the facts of the case, for any such
review and reconsideration would be by a system marked by the absence of due process.
10 Terrorist and Disruptive Activities (Prevention) Act, 1987 (repealed in 2004).
11 i.e a District and Sessions Judge.
12 Reply, Annex 2 [Mohd. Arif v Registrar, Supreme Court of India & Others, Writ Petition (Criminal) No. 77]
Review petitions in other cases are decided by the Supreme Court by circulation (on papers) unless the Court
decides to hear it in open Court.
13 Mohammed Ajmal Mohammad Amir Kasab v State of Maharashtra, para 6.
8
Besides, the Jadhav case is now admittedly a part of the propaganda by Pakistan. It
would defy credulity to believe that a review and reconsideration would in any manner
be fair and impartial, and compliant with the object and purpose of Article 36. The relief
in the present case should be as sought by India, including by directing Pakistan to set
Jadhav at liberty.
9
II. FACTUAL BACKGROUND
27) From Paragraph 22 onwards of the Counter Memorial, under the heading “Factual
Background”, Pakistan has chosen to make allegations in relation to Jadhav, which are
almost entirely based upon his alleged “confession”. India has challenged the
provenance and credibility of this confession. The international agencies have been
critical of the manner in which almost as a practice, confessions are obtained by the
military of those detained by it and are treated as sufficient evidence of the wrongdoings
to then base a conviction by the Military Court. This practice is completely
incompatible with due process. Annex 17 of the Counter Memorial purports to be a
confession made by Jadhav. India seriously challenges that any such confession was
voluntarily made, and whether the text of the confession even faithfully reproduces
what was extracted.
28) All these matters are, however, entirely irrelevant and beyond the scope of the present
proceedings. The point at issue in the present case is whether Pakistan is in serious
breach of its obligations under Article 36, and if so, whether the relief of restitution in
integrum must necessarily be a restraint against Pakistan acting upon the conviction,
and consequential release of Jadhav. Pakistan’s obdurate refusal to allow consular
access, including the manner in which they behaved in the farcical exercise of the family
visit, supports India’s position that Pakistan apprehends that if Jadhav is allowed
consular access, and is given confidence that he will be given justice with appropriate
legal assistance being arranged for him by (or with the assistance of ) his sending State,
and he is tried by an independent court in an open trial, the carefully crafted propaganda
story may come apart.
29) India still maintains that there are serious allegations (more recently supported by an
interview given by a Baloch Human Rights Activist14) which suggest that Jadhav was
kidnapped from Iran where he was carrying on business after retiring from the Indian
Navy. Pakistan’s version lacks credibility.
14 Reply, Annex 3.
10
30) The alleged “arrest” of Jadhav was first communicated to India on 25 March 2016 when
the Indian High Commissioner was summoned by the Foreign Secretary.
31) Without any further verification, Pakistan claims to have notified the P5 States of this
arrest and created a 12 page document making allegations against India.15 Some
significant facts emerge from this document:
a) It states that the security forces apprehended Jadhav. It is a fair assumption that
he continued since his “arrest” in the custody of the Pakistan security forces.
b) This document does not indicate the date of arrest – it mentions “first week of
March 2016”.
c) It states that “The Agent has confessed…”. It is obvious that soon after his arrest
and in custody of the security forces, a confession was extracted. Much before this
confession was placed before a court (the FIR was registered as late as 8 April
2016) it was used as propaganda, being paraphrased in a document being
circulated to the P5 countries. This establishes that the entire exercise was an
exercise in propaganda by Pakistan, who has of late been facing the heat from the
international community for its unabashed support of terrorism.
d) It notes that he has been “operating…. as a businessman in Chabahar..”.
e) It alleges Jadhav crossed over from Iran to Balochistan. It does not deal with the
serious allegation that he was kidnapped in Iran and taken over to Pakistan where
the security forces extracted a confession from him. The way in which this
confession was promptly used by the Pakistani system of propaganda to make
allegations against India supports this allegation of kidnapping.
f) The document goes on to allege that he is a Commander in the Indian Navy.
Obviously, the suggestion is that he was an Indian citizen – a prerequisite for being
employed in the Armed Forces. Pakistan takes contradictory positions in the
15 Counter Memorial, Annex 12.
11
Counter Memorial – it asserts these allegations are true, but also argues in a
separate section that India has failed to establish that Jadhav is an Indian national.
g) It concludes by making serious allegations against India of “state-sponsored
terrorism” and of repeating its efforts of 1971 in Balochistan. No further evidence
is required to establish that Pakistan treats human lives with contempt, and has no
compunctions in using a kidnapped Indian in its geopolitical propaganda warfare
against India.
32) India, however, reiterates that none of this is of any relevance to the present case,
beyond showing that any further review and reconsideration in Pakistan would not fulfil
the standards of due process. Having no satisfactory response to India’s allegation that
Pakistan is brazenly violating the Vienna Convention, Pakistan has used - rather abused
- the opportunity to file a Counter Memorial in this Court to continue its propaganda
against India rather than engage on the legal issues that arise in the case.
33) In its factual narrative, Pakistan acknowledges that as early as 30 March 201616, the
Indian High Commission in Islamabad sent a note verbale to Pakistan’s Ministry of
Foreign Affairs requesting consular access. Pakistan obviously had no difficulty at that
time in recognising that the request related to Jadhav, and for that reason it did not seek
any clarification as to the identity of the Indian in respect of whom India was seeking
consular access.
34) Pakistan has made available a copy of the FIR17 relating to Jadhav. It offers no
explanation as to why an arrest made sometime in the first week of March led to the
filing of an FIR as late as 8 April 2016. It notes in its Counter Memorial that “once a
FIR is registered, the police authorities may utilise their powers of investigation in
order to investigate the offence complained of”.18 It offers no explanation as to under
what authority of law was he interrogated, detained and finally made to confess, all
before the law triggers the powers of investigation into crime. Quite clearly the entire
exercise was done by the “security forces”.
16 Memorial, Annex 1.2.
17 Counter Memorial, Annex 17.
18 Counter Memorial, para 31.
12
35) Section 154 of Pakistan’s Code of Criminal Procedure, 189819 requires the information
relating to the commission of a cognizable offence, if given orally to an officer in charge
of a police station, to be reduced to writing by him or under his direction. From the facts
set out in the Counter Memorial, it is a fair assumption that the first time the Pakistan
police was informed of the arrest of someone on the allegations of commission of an
offence was 8 April 2016. However, there was much greater promptitude displayed by
Pakistan in informing the world community about their having arrested an Indian spy,
and then proceeding to make a slew of allegations against India.
36) The FIR20 notes that “It was revealed by him that he is a serving officer of the Indian
Navy…” et cetera. Obviously the reference is to the “confession” extracted by the
military authorities of Pakistan. This is also clear from the assertion that “During the
interrogation/de-briefing before the Military Authorities of Pakistan, he declared
that…”. Finally, in paragraph 2 of the FIR, it is stated that the case may be registered
against him “for the offences not falling under the Pakistan Army Act 1952…”. It is
obvious that right from the moment he was apprehended (or kidnapped), Jadhav has
been in the custody of the Pakistan Army and it is the Pakistan Army that extracted
confessions from him which were promptly used by Pakistan to make false allegations
against India.
37) The exercise of disinformation and propaganda continued, for it appears that on 15
April 201621, Pakistan notified envoys of members of the Arab League and of the
Association of South East Asian Nations (ASEAN), who were also “briefed” – a
euphemism for Pakistan’s propaganda against India.
38) Going further, in its narrative Pakistan makes the point that in its note verbale of 10
June 201622, it was for the first time that India actually identified the individual in
question as Jadhav. It then uses that argument as a springboard to suggest that India has
never explained or rebutted the serious implications of “…the conduct of Commander
Jadhav”.23 Pakistan had no difficulty in understanding India’s request made on 30
19 Counter Memorial, Annex 82.
20 Counter Memorial, Annex 17.
21 Counter Memorial, Annex 16.
22 Counter Memorial, Annex 13.4.
23 Counter Memorial, para 38.
13
March 2016 and this submission is plainly an afterthought. Secondly and more
significantly, Pakistan converts the present set of proceedings, which relate to
allegations of violation by Pakistan of the Vienna Convention, into a propaganda
exercise in which it has arrogated to itself the right to assume that its allegations against
Jadhav should be treated as true and it is India who should be providing answers to it.
39) Pakistan fails to accept that these attempts at trying to deflect attention from its own
role in terrorism, and for which it is increasingly being criticised by the global
community, should be carried out outside the precincts of the International Court of
Justice and outside the proceedings before the Court. India does not consider it
necessary to reply in any degree of detail to the litany of false allegations being made
by Pakistan.
40) Pakistan mentions the fact that Jadhav’s confession was recorded on 22 July 2016
before a Magistrate.24 As a footnote in its Counter Memorial, it sets out Section 164,
the provision under which this confession was recorded. The provision refers to
recording of confessions “in the course of an investigation under this Chapter or at any
time afterwards before the commencement of the enquiry or trial…”.25 The copy of the
FIR suggests that the offences which were to be tried by the Military Courts were
beyond the remit of the investigation being done by the Pakistan police. It is clear that
the criminal courts have no role to play in military trials. Besides, this exercise of
recording his confession was carried out at a time when he continued to be in military
custody. It is naïve to suggest that being with a Magistrate would give any accused the
courage to retract a confession and to accuse the military authorities of forcible
extraction of a confession, when immediately after recording his confession, the
accused is to be put back in military custody.
41) Pakistan’s attempt to suggest that this again is similar to the procedures in India is an
attempt to mislead. In the procedure followed in India, accused are either on bail or in
judicial custody. As and when necessary, the police can seek custody for defined
periods of time for purposes of interrogation, which is granted after a rigorous exercise
seeking custody before the magistrate. The Indian security forces have no authority to
keep any person in custody.
24 Counter Memorial, Annex 23.
25 Counter Memorial, footnote 1.
14
42) Pakistan continues the narrative of the facts mentioning commencement of the trial
before the Military Court. No documents have, even at this stage, been placed on record
that would give any idea of what evidence was placed, what charges were framed, and
what kind of legal assistance was provided to Jadhav26. While India maintains that the
entire narrative is irrelevant since it seeks to obfuscate the real issue in the present
proceedings, the conduct of Pakistan in keeping away any of the material that was used
in the trial other than the contrived confession is significant, for it demonstrates the
complete opacity in the proceedings, and is testimony of how the system of trial through
Military Courts fails even the elementary tests of due process.
43) Pakistan again places on record its “MLA Request”. There is no MLAT between the
two countries. The reason why Pakistan refuses to negotiate and sign legal assistance
treaties, but continues to make requests for legal assistance on a unilateral basis on its
own terms are not far to seek. It has little to gain and far more to lose in signing such
treaties. There are over forty requests, including those relating to some shocking acts of
terrorism such as the Mumbai attack, which call for investigation in Pakistan, to identify
and bring to justice the masterminds of these heinous acts of terrorism. The truth is that
Pakistan’s request for legal assistance was a propaganda measure and no more, and is
now being used by Pakistan as yet another untenable defence to its brazen violation of
the Vienna Convention rights of Jadhav and India.
44) The suggestion that by its note verbale of 21 March 201727 the proposal made by
Pakistan was such that “There was certainly no doubt at this juncture that Pakistan was
prepared in principle to allow India consular access to Commander Jadhav”28 is
plainly wrong. The Vienna Convention applies to all countries who are party to the
Convention. Pakistan by its communication of 21 March 2017 stated that India’s
request for consular access “shall be considered..”. Consular access under the Vienna
Convention is a matter of right and the very fact that Pakistan suggested that it “would
consider” consular access establishes that Pakistan has scant respect for its international
obligations under treaties. Secondly, Pakistan’s position overlooks that the arrest was
in March 2016, the trial in the Military Court had commenced on 21 September 2016
and by April 2017 he stood convicted. A suggestion that they would consider a request
26 Beyond saying that a trained officer was made available, nothing is known of this.
27 Memorial, Annex 3.
28 Counter Memorial, para 60.
15
for consular access in March 2017 was obviously yet another attempt at creating
material for propaganda rather than complying with its Vienna Convention obligations.
45) Secondly, States cannot unilaterally impose conditions under which they would
discharge their obligations under international treaties. The submission by Pakistan
must proceed on the premise that Pakistan was entitled to stipulate conditions
extraneous to the Vienna Convention and is yet another factor that establishes that
Pakistan trivialises its international obligations. The scant regard for human rights is
obvious from the fact that even Jadhav who has a personal right (in addition to India’s
right) to consular access was effectively denied his right by making an offer to consider
such requests conditional upon India agreeing to an absurd request for “legal
assistance”.
46) India’s note verbale of 31 March 201729 rightly noted that consular access would be a
pre-requisite in order to verify the facts and understand the circumstances of Jadhav’s
presence in Pakistan. India requested immediate consular access. By this
communication India has made it clear that it did not accept unilateral conditions being
imposed by Pakistan. Besides, even if there were an MLAT, the country whose
assistance is sought is entitled to satisfy itself that it is a fit case for grant of assistance
of the kind being sought by the requesting State. Pakistan’s note verbale of 21 March
2017 again put the cart before the horse.
47) Death penalty in India for certain offences has been commented upon in paragraph 70
onwards of the Counter Memorial - an issue that is entirely alien to the present
proceedings. However, to set the record right, India would like to set out the correct
position in this regard:
a) Pakistan sets out the recommendation of the Law Commission of India for
abolition of death penalty. Even the Law Commission, which felt that steps should
be taken to abolish the death penalty, noted that it would be for all offences other
than terrorism-related offences. Cross-border terrorism sponsored by Pakistan is
one of the greatest threats to Indian national security. It is one of the reasons why
India has not considered the time to be right to abolish death penalty.
29 Memorial, Annex 1.12.
16
b) As noted in the Law Commission report quoted by Pakistan, the Supreme Court
of India has restricted imposition of the death penalty to the rarest of rare cases.
Besides, over a period of time, as a matter of procedure in appeals involving a
capital sentence, the Supreme Court reviews once again the matter on merits
including the evidence on which such conviction is based, and the basis for
suggesting that the case is one which qualifies for the death sentence applying the
test of “rarest of the rare cases”. As quoted earlier, even in the case involving
Kasab - the terrorist of Pakistani origin who had been apprehended red-handed,
the Supreme Court reviewed the evidence produced before the trial court fully
while hearing his appeal and gave a fully reasoned judgement upholding his
conviction.
c) India is not a party to the First Optional Protocol to the International Covenant on
Civil and Political Rights (ICCPR) for reasons that are completely irrelevant to
the present proceedings. India has a robust criminal justice system, and does not
recognise trials of those convicted even of the most heinous acts of terrorism by
Military Courts. It has other supportive institutions such as Human Rights
Commissions which provide effective means of resolution of grievances to those
accused of commission of offences. The fact that India has not agreed to the
jurisdiction of the Human Rights Committee whilst becoming a party to the
ICCPR does not suggest that India has not subscribed to the principles of the
ICCPR. On the contrary, the ICCPR has played a vital role even in the evolution
of domestic jurisprudence and has been frequently relied upon by the Supreme
Court to give an expansive meaning to the provisions of the Constitution which
recognise civil rights and liberties. The suggestion that India cannot rely upon
decisions of the Committee that administers the ICCPR is simply an argument of
desperation.
d) Consistent with India’s position in the matter of the death penalty, and in the
matter of external oversight over the administration of the death penalty, India
voted against the resolution of the Human Rights Council dated 29 September
2017. However, this is yet another matter that is completely irrelevant to the
present proceedings.
17
48) In paragraph 79 of the Counter Memorial, Pakistan appears to deny the newspaper
report which attributes to the Director General, the remark that “Jadhav is a spy and
consular access cannot be given to a spy.” However, this statement is perfectly
consistent with the stand taken by it in the present proceedings.
49) Pakistan acknowledges that on 19 April 201730, the Indian High Commission in
Islamabad sent a note verbale asking for certified copies of chargesheets, proceedings
of Court of Enquiry et cetera. It does not indicate any reason why these were not
provided. Instead, it repeats that India “…evaded Pakistan’s MLA request.”.31 It is a
consistent theme of the Counter Memorial that wherever Pakistan lacks a sensible
explanation for its conduct, it brings up its farcical request for legal assistance.
50) It is correct that some Indian journalists made the comments conveniently relied upon
by Pakistan. That is a measure of the freedom of press in India, where no curbs are
placed upon expression of individual opinions even if they be contrary to the stated
position of the Government of India. This is in sharp contrast to a system where out of
fear of the military, the Lahore High Court Bar Association passed a resolution
threatening any lawyer who would offer services and legal assistance to Jadhav.
51) Pakistan mentions more “narrations” by Jadhav.32 The text and tenure of the narratives,
which are highly inculpatory, by a person facing the death penalty, are testimony to the
kind of pressure which Jadhav faces while he continues to be in military custody in
Pakistan. It is for this reason that India has always expressed grave concern about his
health and safety. His meeting with his wife and mother confirmed India’s worst fears
about the kind of treatment which is being meted out to him in Pakistani custody.
30 Memorial, Annex 1.15.
31 Counter Memorial, para 82.
32 Counter Memorial, para 107.
18
III. MEETING WITH MOTHER AND WIFE
52) The Counter Memorial mentions that a meeting with Jadhav’s wife was under
consideration. This meeting took place on 25 December 2017. A report prepared by
Mr. J.P.Singh, Deputy High Commissioner of India in Islamabad33 who was deputed by
the Ministry to accompany the mother and wife for the meeting with Jadhav,
describes eloquently the farce that was perpetrated and Pakistan’s conduct in the matter.
53) On 10 November 201734, India received a note verbale from Pakistan stating that it had
“…decided to arrange a meeting of Commander Kulbhushan Jadhav with his wife, on
humanitarian grounds”.
54) On 13 November 201735, India responded to this note verbale requesting that Jadhav’s
wife be allowed to travel with her mother-in-law (Jadhav’s mother). India also sought
a sovereign guarantee and assurance, that Pakistan will ensure the free movement,
safety and security and well-being of the wife and mother of Jadhav.
55) On 8 December 201736, Pakistan responded favourably and extended its offer to
Jadhav’s mother “on humanitarian and compassionate grounds”. It accepted that a
diplomatic officer of the Indian High Commission in Islamabad may accompany them
whilst they are in Pakistan. It assured India that it would take such measures as are
available to safeguard their security, safety and freedom of movement. The visit was
scheduled for 25 December 2017.
56) On 11 December 201737, India furnished its detailed response to Pakistan’s request for
assistance in the so-called investigation it proposed to carry out based on the alleged
“disclosures” in Jadhav’s extracted confession. India pointed out that the requests were
farcical attempts at propaganda - a position which is now established by the fact that
Pakistan took steps to notify the P5 countries and later the Arab League/ASEAN
countries of Jadhav’s confession, and on that basis made frivolous allegations against
33 Reply, Annex 4.
34 Counter Memorial, Annex 40.
35 Counter Memorial, Annex 41.
36 Reply, Annex 5.
37 Reply, Annex 6.
19
India even before the FIR was registered. India further pointed out that Pakistan’s
requests did not furnish any evidence and did not even make over to India the charge
sheet that must have been filed against Jadhav. India pointed out that there is no MLAT
between India and Pakistan, and that Pakistan was unable to cite any bilateral or
multilateral treaty on the basis of which it could assert a right, as it were, to demand an
explanation from India. Finally, responding to the strange suggestion of extradition,
India pointed out that it has no reason to suspect that Jadhav had committed any crime
for which he could be tried in India. In fact, there is no criminal trial presently pending
against Mr. Jadhav in India for which an extradition of Jadhav could be sought.
Therefore, the question of seeking his extradition did not arise.
57) On 13 December 201738, India communicated through a note verbale to Pakistan, that
it wanted a sovereign guarantee that Jadhav’s wife and mother would not be questioned,
interrogated or harassed during their stay in Pakistan, and that a diplomat of the High
Commission of India in Islamabad will be allowed to accompany the mother and wife
of Jadhav, and also be present in the meeting with him.
58) On 20 December 201739, Pakistan by its note verbale with reference to India’s requests
of 13 December 2017 “… and the verbal request of the Indian Deputy High
Commissioner in Islamabad..” went on record “…to reiterate its concurrence to the
Indian requests, as already conveyed through Ministry’s Note Verbale of even number
dated 8th December 2017.”.
59) On 23 December 201740, Pakistan sent another note verbale which expressly recorded
that an Indian diplomat of the Indian High Commission could accompany the visitors
“including during the meeting, as further requested by India”. It assured India that “all
necessary courtesies..” would be extended to the visitors from India and their safety
and security would be safeguarded. On 24 December 201741 India sent a note verbale
to Pakistan in relation to the visit, communicating the flight details of the wife and
mother and the name of the Indian Deputy High Commissioner who would accompany
38 Reply, Annex 7.
39 Reply, Annex 8.
40 Reply, Annex 9.
41 Reply, Annex 10.
20
themfrom the time of their arrival to departure. It also flagged its concerns about media
interaction.
60) By a note verbale of the same date42, Pakistan communicated that it had noted India’s
request about media interaction, and that the Indian Deputy High Commissioner would
be allowed to accompany the wife and mother of Jadhav from the time of their arrival
to departure. They however insisted that the family would travel in a vehicle belonging
to Pakistan.
61) A report43 was received by the Indian Ministry of External Affairs from Mr. J.P.Singh,
Deputy High Commissioner of India in Islamabad which set out the unfortunate manner
in which the visit of Jadhav’s mother and wife were once again used by Pakistan only
for propaganda purposes, and the behaviour of the officials of the Pakistan government
was not only seriously objectionable but a brazen infraction of the basic human rights
of two human beings, more so the mother and wife of an accused where Pakistan has
already branded him as a terrorist in its public pronouncements.
62) The conditions imposed for the meeting by Pakistan included a security check with full
dignity, no media interaction with the family members, the location of the meeting in a
room where Jadhav will sit on one side and the other participants would be on the other
side of a glass panel, and the family members would communicate with him through an
audio system or through a microphone.
63) The Indian High Commission requested for use of their vehicles for the transport of the
family members, but this was rejected. The request to allow one lady officer from the
Ministry of External Affairs to accompany the family during their visit to Pakistan, in
order to provide them a sense of security and comfort, was also declined.
64) Contrary to the assurance that this meeting would not be a media circus, two cameramen
showed up at the aircraft tarmac itself. The movement from the airport to the High
Commission was filmed by the Pakistan media which was present at various points on
the route. When the family members reached the foreign office, a large contingent of
42 Reply, Annex 11.
43 Reply, Annex 4.
21
Pakistani media personnel were present to cover the arrival of the family members, and
the vehicle was strategically stopped so that the family members had to walk 40-50
steps to reach the building, in the course of which they were heckled by the media
persons present. The media persons present shouted at the mother and the wife, calling
them the mother and wife of a murderer and a terrorist. The same circus was repeated
when the family came out of the foreign office building - they were made to stand in
front of the media by strategically delaying the arrival of the vehicle in which they were
to be transported. During this also they were subjected to hostile comments.
Unsurprisingly, the family members were seriously traumatised by all these events.
65) The worst was yet to come. During the departure from the airport, when they got down
from the vehicle, about 15-20 Pakistani media-persons ambushed the family members
and tried to pressurise them into making a statement that they accepted Jadhav as a
terrorist. All this transpired in the presence of the Director, Ministry of Foreign Affairs
of Pakistan.
66) Contrary to the understanding, the arrangements of the meeting at the venue were made
in a way that the Indian diplomat was placed in a separate chamber while the mother,
the wife, with two persons from the Pakistani establishment were in a middle chamber,
and Jadhav was in a third chamber.
67) Jadhav’s wife, meeting her husband after a considerable period, had worn ornaments
which have religious sensitivities in Indian society. She was made to change her clothes
and remove these ornaments. Jadhav’s mother who wears a sari was forced to change
into a Pakistani attire.
68) The family was prevented from talking to Jadhav in their mother tongue (Marathi
language). Although this is clearly the natural medium of communication. While doing
so, she was reportedly interrupted by the Pakistan official present in the meeting and
eventually prevented from proceeding further in this regard.
69) These are only some of the significant matters that took place in a meeting that was
touted to be a “humanitarian” gesture. The dehumanising treatment of Jadhav’s mother
and wife, only to gather propaganda material, establishes the low priority (if any) of the
22
rule of law in Pakistan, and that any assurances by their officials should be accepted
with caution and circumspection.
70) Upon return, the mother and wife conveyed that Jadhav appeared under considerable
stress and was speaking in an atmosphere of coercion. As the meeting evolved, it was
clear to them that his remarks were tutored by his captors and designed to perpetrate
the false narrative of his alleged activities. His appearance also raised questions of his
health and well-being.
71) India communicated its protest over the violation of the letter and spirit of the
understanding on the basis of which the wife and mother of Jadhav were sent to Pakistan
by note verbale of 27 December 201744. India also conveyed that in the manner in which
the meeting was conducted and its aftermath made it clear that it was an attempt by the
Government and authorities of Pakistan to bolster a false and unsubstantiated narrative
even if it was at the cost of violation of the basic right to dignity of Jadhav, his wife
and his mother. India also conveyed serious concerns about the physical and mental
well-being of Jadhav, his treatment by the Pakistani authorities and measures being
adopted in gross violations of his basic human rights and the minimum standards of due
process.
72) The manner of the conduct of meeting evoked strong concerns among the Indian public
and shocked the conscience of the Indian nation. The External Affairs Minister of India
made a Statement in the Indian Parliament45 to place the facts of the meeting and its
aftermath before the nation on 28 December 2017.
73) On 19 January 201846 Pakistan responded to India’s letter of 11 December 2017.This
letter was again more posturing, without containing any matter of substance. For the
sake of completeness, a copy of the letter is attached to this Reply.
44 Reply, Annex 12.
45 Reply, Annex 13.
46 Reply, Annex 14.2.
23
74) Pakistan also, by its note verbale dated 19 January 201847, responded to India’s note
verbale relating to the events that transpired in the course of the meeting.
a) It sought to justify the undignified security check by alleging that Jadhav “…is a
convicted Indian spy and terrorist.” and thus the “…security dimension could not
be ignored.”. This was a sorry excuse for the treatment meted out to Jadhav’s
wife and mother.
b) It acknowledged that they were asked to change their clothes before the meeting,
and were permitted to change back into their clothes after the meeting. They
acknowledged that the shoes of Jadhav’s wife were retained – as per Pakistan
“…they did not clear the security check.”
c) It did not dispute that Jadhav and his mother were not allowed to communicate in
their native language – the justification was that “India never requested that the
Marathi language be allowed.”
d) Despite what is available in public domain, which establishes that the media was
allowed full access to the visitors, the note verbale stated that “As requested by
India, the media was kept at a safe distance from the visitors.”
75) By its communications of 11 April 201848, in two separate note verbales , India has
responded to both the communications of 19 January 2018. In relation to the meeting
India denied that by agreeing to a security check with dignity, they had agreed to the
insistence upon the removal of Jadhav’s wife and mother’s clothes and items of cultural
and religious sensibilities. It placed on record that the Indian High Commission was
never informed in advance that they would be required to sign a declaration form, and
it was a surprise when they were asked to do so by the Director General, South Asia,
just before the meeting on 25 December 2017. Besides, the declaration only mentioned
that the family members and the Indian diplomat were not carrying either weapons or
recording material - it did not require them to accept that they would change their
clothes or remove their customary ornaments. India flagged its concerns over retention
of the shoes, since the wife of Jadhav is also named in the FIR. It reminded Pakistan of
47 Reply, Annex 14.1.
48 Reply, Annex 15.1 and 15.2.
24
the media reports which established that the Pakistan press was not only allowed on
multiple occasions to approach the family but were allowed to harass and hector them.
Finally, India protested over the fact that the conversation between Jadhav and his
mother and wife was deliberately made audible to the officials of Pakistan.
76) In the second note verbale49 India dealt with the baseless allegations relating to the
passport. India has also pointed out that if Pakistan invites India to conduct an
investigation into the issue of the forged passport, the investigation would have to
commence by first examining the provenance and credibility of the allegations, which
in turn would require India to conduct an investigation into the conduct of the Pakistan
officials who allegedly “apprehended” Jadhav, and into the facts and circumstances
relating to his “arrest”, since the basic question as to whether Jadhav was indeed
carrying such a forged passport document would have to be investigated in the first
instance.
77) India submits that Pakistan has failed to set out any facts of relevance that would assist
the Court in deciding whether Pakistan was guilty of egregious violation of its duties
under the Vienna Convention.
49 Reply, Annex 15.2.
25
IV. ABUSE OF PROCESS/RIGHTS AND LACK OF GOOD FAITH
78) From paragraphs 124 to 129 and 151 to 167, Pakistan cites commentaries of eminence,
and from certain dissenting opinions or submissions made in certain cases where the
word “abuse” and the expression “good faith” can be found. These phrases have been
used in different contexts by different jurists, and each of the citations, apart from being
non-authoritative, is irrelevant in the context of the present case.
79) Professor Kolb in his authoritative commentary The International Court of Justice,50
identifies the notion of an “abuse of process” as the principle which is applicable “both
in international law and in systems of municipal law”51. He further describes (at page
947) it as “…the use by one or more of the parties, of procedural instruments and rights,
for reasons that are fraudulent, or designed to cause delay, or simply frivolous;
designed to harm the other side or give the abusing party and an illegitimate advantage;
intended to devalue other pending proceedings or deprive them of their object; intended
purely for propaganda purposes; or, generally, for any purpose other than that for
which the procedural rights concerned were instituted in the first place.”52
80) Pakistan’s conduct of attempting to play the doctored video in the course of the hearing
by this Court (at the time of indication of Provisional Measures), and its overall conduct
in the present case, using the platform of the present proceedings for its propaganda, is
a classic case of abuse of process.
81) Professor Kolb goes on to note that “Such abuses cannot simply have presumed to have
occurred and nor should they easily be considered to be proven. States are sovereign
and accusations that there have been abuses should therefore be made only with great
care. Also, the mere exercise of one’s rights should not be considered an abuse.”53
India seeks redress in relation to a violation of its rights and the rights of an Indian
national under the Vienna Convention. The long Counter Memorial fails to provide a
single substantial reason for denying consular access. The justification based on the
domestic procedure of trial under offences tried by Military Courts is hopeless. It is a
50 Robert Kolb, The International Court of Justice (2013).
51 Reply, Annex 16.
52 Ibid.
53 Ibid.
26
settled principle that domestic law cannot be pleaded as the defence to a breach of
international obligations. The rights of consular access in the context of an accused,
particularly a person accused of such serious offences, repeatedly characterised as a spy
and a terrorist, become even more important, for principles of due process insist upon
punctilious compliance with procedural safeguards where the charges are grave. The
Vienna Convention recognises the difficulties faced by an accused who is being tried
in a foreign country. Such difficulties are exacerbated manifold when an accused is in
the custody of security forces and is being tried by a Military Court. Thus, the safeguard
by way of consular access and consular assistance in arranging for a defence becomes
even more necessary in relation to an accused who is being tried for such serious
offences by Military Courts.
82) Finally, as Professor Kolb notices “The ICJ is frequently faced with allegations that
procedural abuses have occurred. However, unlike other international tribunals, the
Court has not so far ever had actually to conclude that an abuse has been demonstrated.
This restrictive approach by the Court is desirable.” He goes on to state that “The
practice shows that arguments to the effect that there has been a procedural abuse are
themselves generally motivated by a most unwelcome wish to prevent the Court from
taking cognizance of a case by arguing for its inadmissibility in limine litis.”54
83) This comment about the argument of procedural abuse is fully justified if regard is had
to the kind of arguments advanced in the Counter Memorial to suggest that there has
been an abuse.
84) The heads on which Pakistan suggests that there has been an abuse are as follows:
a) India’s “refusal to engage”55 with Pakistan on its request for information
regarding the passport.
b) India allegedly furnishing Jadhav “with a false identity so as to facilitate his travel
to Pakistan to commit acts of espionage and terrorism..”56.
54 Ibid.
55 Counter Memorial, para 168.
56 Counter Memorial, para 170.1.
27
c) India’s assertion of treaty-based consular access rights in order to access an
espionage agent.
d) India invoking the provisional measures jurisdiction in the manner that it did –
India having exercised its right as a tactical political weapon.
85) Each of these arguments justify Professor Kolb‘s cynicism about the way in which the
abuse doctrine is abused. None of these heads have any relevance to this case. An Indian
national is in Pakistan’s custody. He was sent to trial and has been convicted and
sentenced to death by a Military Court and while being all along in military custody.
All this has happened without allowing him consular access which would have allowed
his sending State to ensure his well-being and safety, and also assisting him in arranging
his defence. India asserts that its rights and the rights of the Indian national Jadhav had
been seriously impaired and the Vienna Convention brazenly violated.
86) Pakistan invites the Court to assume that the conviction is justified and on that basis
seeks to explain away the complete defiance of the Vienna Convention. If an allegation
by a State that a person in its custody is a spy or a terrorist is sufficient to jettison a
procedural safeguard as critical as consular access in the context of being tried in a
foreign country, it would have been expressly so mentioned in Article 36 of the Vienna
Convention. In trying and convicting Jadhav of the offences of spying and terrorism,
without allowing him consular access in the manner provided for by the Vienna
Convention which would have assisted him in preparing his defence, and would have
also ensured that he is not subjected to any torture or cruel treatment, Pakistan has
seriously violated its international obligations.
87) Pakistan invites this Court to accept the truth of its allegations and the verdict of its
Military Court, and treat India’s protest at violation of the consular access rights under
the Vienna Convention as an abuse. Such an approach turns the Vienna Convention on
its head.
88) India has invariably offered consular access to Pakistan whenever a Pakistani national
has been arrested and tried by the Indian courts. Pakistan has invariably refused to
provide consular access to its own nationals who are accused of serious crimes of
terrorism. India’s national security needs are of no lesser sanctity, and in fact India faces
28
greater threats to its security from the menace of cross-border terrorism. India has
however never deviated from its international obligations. Pakistan’s suggestion that
consular access would have in any manner affected its security concerns is a flimsy
excuse for not fulfilling basic treaty obligations which are, presently recognised, as a
dimension of the human rights of an accused.
89) Pakistan’s case that India’s refusal to “provide explanations on a range of issues
relating to the ongoing investigation…”57 and its refusal to engage with Pakistan’s
MLA request is a failure to act in good faith to the standard required by international
law is baseless. The submission has neither any basis in law, nor does it have any basis
in fact.
90) Pakistan calls to aid Article 2 (f) of the UN Security Council Resolution 1373.58 In this
context India submits as under:
a) It is ironical that Pakistan relies upon this Resolution. The Resolution begins by a
decision that all states shall prevent and suppress the financing of terrorist acts;
refrain from providing any form of support, active or passive, to entities or persons
involved in terrorist acts; take the necessary steps to prevent the commission of
terrorist acts; deny safe haven to those who finance, plan, support or commit
terrorist acts. Pakistan’s own conduct has been in breach of each of these
decisions.
b) Assistance in connection with criminal investigations of criminal proceedings
including those relating to “the financing or support of terrorist acts..” is achieved
through the entering into of mutual legal assistance treaties. There is no MLAT
between India and Pakistan and it has been India’s position all throughout that this
is so because of Pakistan’s reluctance to enter into such a treaty.
57 Counter Memorial, para 172.
58 Counter Memorial, Annex 89.
29
91) The request made by Pakistan does not satisfy the standards of a request which is made
under legal assistance treaties. It fails to provide any evidence of material that would
prima facie establish the commission of an offence. A confession extracted by the
security forces and promptly used for propaganda purposes, as well as a forged passport
which Pakistan repeatedly alleges was retrieved from Jadhav are all that it provides in
support of its serious allegations. A reading of the letter of request leaves no manner of
doubt that it is yet another step in the same direction of propaganda warfare.
92) In this long Counter Memorial, there is a complete paucity of details of how Jadhav
came into the custody of the security forces, what was the other evidence (apart from
the patently contrived confession and the forged passport) from which it could be
established that Jadhav was engaging in acts of spying and terrorism, and in fact the
particulars of such acts themselves, are conspicuously absent from all Pakistan’s
communications to India. The request for India’s “cooperation” is only to be read in
order to establish that it is yet another propaganda document rather than being a serious
legal document on the basis of which assistance in investigations is sought.
93) The premise all these submissions is that Jadhav “has himself voluntarily and
repeatedly confessed to the financing and supporting of terrorist acts…”.59 India asserts
that in obtaining this confession and in the proceedings going forward ending with his
conviction, Pakistan has acted in brazen defiance of the Vienna Convention. One of the
consequences is that all such allegations by Pakistan, and the conviction by its court
(and a Military Court at that) lack credibility. Pakistan invites this Court to hold that
India’s request for vindication of its right and the Vienna Convention is an abuse, on
the basis of the allegations and the court proceedings the credibility of which stand
entirely undermined by Pakistan’s refusal to comply with its international obligations
under the Vienna Convention.
59 Counter Memorial, para 176.
30
V. EX TURPI CAUSA (ILLEGALITY) / UNCLEAN HANDS / EX INJURIA JUS
NON ORITUR
94) Pakistan then alleges, as a defence to India’s case, the principle of Ex Turpi Causa
(Illegality)/ Unclean Hands/Ex Injuria Jus Non Oritur.
95) The submissions under this heading are as unmeritorious as those which precede them.
The factual foundation for these is the same as the previous ground of defence of abuse.
India reiterates its position set out in the paragraphs earlier.
96) The submissions in law are also untenable. In this context India’s brief comments are
as under:
a) The observations in the judgement in the Case Concerning The Factory At
Chorzów (Claim for Indemnity) (Jurisdiction) (Federal Republic of Germany v.
Poland) have no relevance to the argument being presented by Pakistan. The
passage that is extracted in the Counter Memorial60 sets out a well-settled principle
– a party cannot avail itself of the fact that the other party has not come to fulfil
some obligation, where the former party itself has by some illegal act, prevented
the latter from fulfilling the obligation in question. Pakistan fails to identify which
illegal act by India prevented Pakistan from allowing consular access. Instead it
suggests that a “prior illegal act has the consequence of negating any correlative
obligation…”.61 There is no authority for any such proposition – apart from the
fact that any such proposition would be destructive of the principles of the rule of
law. In the law of contracts, where the obligations are sequential, the failure to
perform one obligation by a party may relieve the other of performing its later
obligation. Such a principle has never been extended to international law. Besides
the obligations under Article 36 are stand alone and not dependent on some other
obligation of the sending State either under the Vienna Convention itself or some
other Treaty or otherwise.
60 Counter Memorial, para 191.
61 Counter Memorial, para 192.
31
b) Pakistan invites the court to hold that a State can unilaterally be the judge of the
legality of the actions of another State under its own understanding of some
general principles of customary law (or consequence of some U.N. Resolution)
and on that basis refuse to perform what are admittedly its unrelated obligations
under an international treaty. If such a proposition ever came to be accepted, it
would be destructive of the rule of law and comity of nations.
c) The Counter Memorial cites a Dissenting Opinion of Judge Anzilotti62 in
Legal Status of Eastern Greenland (Denmark v Norway) (1933) PCIJ (Series A/
B) No.
53. Even this is in any event completely out of context. India’s assertion of the
right to consular access was not an unlawful act – the action at law is based upon
an assertion of India’s treaty rights.
d) It cites Judge Schwebel’s Dissenting Opinion63 in Military and Paramilitary
Activities in and Against Nicaragua (Nicaragua v United States of America),
Merits, Judgment, I.C.J. Reports 1986, p.14. The proposition contained in the
extract quoted in the Counter Memorial is irrelevant to the present case. The
learned Judge held that Nicaragua’s actions in El Salvador disentitled it to the
claims it was bringing against the United States, since the actions of United
States were consequential on or embarked upon to deal with Nicaragua’s
illegalities. It is completely irrelevant to the present case, and general statements
of law cannot be torn out of context and cited in an entirely different context.
Besides the propositions that Pakistan relies upon are however not to be found in
any judgement of this Honourable Court. In any event Pakistan has hopelessly
failed to state (much less establish) any grounds from which it could be deduced
that India has come to this court with “unclean hands” or worse that India is
guilty of any illegality, and which actions of India prevent Pakistan from
discharging its obligations under Article 36.
e) In paragraphs 198 to 201 of the Counter Memorial, Pakistan relies on submissions,
and that too made in cases which have no factual similarity or contextual relevance
to the present case. Submissions made by counsel not accepted in the judgement
62 Counter Memorial, para 194.
63 Counter Memorial, para 196.
32
are not an authoritative exposition of the law. Pakistan invites this Court to assume
that the submissions made to oppose the putting in place of Provisional Measures
were impliedly accepted merely because Provisional measures were denied – an
approach that is untenable.
f) In relation to the Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p.136 it
relies on the Separate Opinion of Judge Elaraby64 rendered in a context entirely
different from the present case. The context was concerning the recognition of a
territory – and the Learned Judge was of the view that illegal occupation of
territories should not be recognised, and in that context he relied on the principle
that an illegal act cannot produce legal results. This is yet again an irrelevant
submission, and the authority (a dissenting opinion) included to embellish the
Counter Memorial.
97) Pakistan seeks to rely on a purported Expert Report65 as to the passport which it has
unilaterally obtained. India has sufficiently dealt with the issue of the passport, which
finds repeated mention, and repetitive narration, in the Counter Memorial. Suffice it to
say that India denies all these allegations, and maintains they are irrelevant.
98) The only place that Pakistan purports to directly engage with the question of denial of
consular access is in paragraph 218.5 of the Counter Memorial. Pakistan’s suggestion
that the denial of consular access was on account of India’s alleged illegal activities
seeks to arrogate to States that were parties to the Vienna Convention, the right to be
the judge of the conduct of other States and decide for themselves whether or not they
would comply with obligations expressed in unconditional terms in the Convention.
India has always offered consular access to Pakistan even when those arrested have
been caught red handed indulging in acts of terrorism. The principle that making
allegations of espionage and terrorism excuse the sending State from complying with
its obligations under the Vienna Convention is plainly wrong.
64 Counter Memorial, para 204.
65 Counter Memorial, Annex 141.
33
99) India reiterates that the allegations based on the two elements that lack any credibilitya
confession extracted in military custody when the accused, before and after the
confession continues to be held incommunicado, and a forged document that was
allegedly recovered by these security forces from Jadhav in the same process, and
which Pakistan rightly characterises as a forgery. Pakistan builds its case upon the fact
that it called upon Indian to explain this forged document and India has not
responded.66. As a matter of law, it amounts to Pakistan accusing India of conspiring in
the forging of the passport. The making of such an accusations does not excuse the
sending State from its obligations under the Vienna Convention. Provisions for consular
access are meant to safeguard the basic rights of foreign nationals in custody (and more
so in custody of security forces) and to make the requirements of due process in the
matter of a fair trial, and humane treatment even in custody, a reality. To recognise the
right in a State to deny due process (an aspect of which is now captured in Article 36)
because of the allegations made by it against an accused is to eviscerate the efficacy of
the Vienna Convention. It bears repetition that even when India has accused Pakistan
of sponsoring terrorism, it has always offered consular access.
66 A document that is false is by definition a forgery. To characterise a document as an authentic forgery is a
contradiction in terms.
34
VI. APPLICABILITY OF THE VIENNA CONVENTION
100) Pakistan’s contention that India has failed or refused to furnish Pakistan with any
evidence as to Jadhav’s nationality is frivolous. In all its communications, Pakistan has
characterised Jadhav as an Indian national. It readily made allegations against India
before the international community on the premise that Jadhav was an Indian national
who had been sent by India to act as a spy and to promote terrorism in Pakistan. It
repeatedly addresses Jadhav as “Commander Jadhav” on the premise that he is a
serving officer of the Indian Navy. Admittedly, in order to be a member of the Armed
Forces, he has to be an Indian citizen - an Indian national. Surprisingly, in paragraph
238 of the Counter Memorial Pakistan suggests that India has to date failed or refused
to furnish Pakistan with evidence of Jadhav’s nationality.
101) The need to establish a fact arises where the fact is in dispute. This is elementary in
adversarial proceedings. India states that Jadhav is an Indian national. Jadhav’s
employment in the Indian Navy is not in dispute67. It has all along accused India of
sponsoring terrorism in Pakistan on the basis of allegations levelled against Jadhav, an
Indian national. In all the diplomatic communications, including the very first
demarche, it proceeded on the acceptance of the fact that Jadhav is an Indian national.
The plea raised in paragraph 238 is a contradiction to Pakistan’s conduct, as also to its
pleading in the Counter Memorial in other parts.
102) The second ground given to suggest that the Vienna Convention has no application is
equally devoid of merit. As stated earlier, the Convention confers a right of consular
access to the foreign national (who is arrested and then tried in a receiving State) as
well as in the sending State,. The decisions of this Court establish that this is an
indefeasible right and has with the evolution of the jurisprudence of this Convention
been recognised as a dimension of the due process rights of the accused. In LaGrand,
this Court observed “Based on the text of these provisions, the Court concludes that
Article 36, paragraph 1, creates individual rights, which, by virtue of Article 1 of the
Optional Protocol, may be invoked in this Court by the national State of the detained
person. These rights were violated in the present case.”. 68 In Avena, this Court
67 Pakistan insists he continues to be a Commander in the Navy. India says he is a former Naval Officer.
68 LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 466, para 77.
35
observed “It would further observe that violations of the rights of the individual under
Article 36 may entail a violation of the rights of the sending State, and that violations
of the rights of the latter may entail a violation of' the rights of the individual. In these
special circumstances of interdependence of the rights of the State: and of individual
rights, Mexico may, in submitting a claim in its own name, request the Court to rule on
the violation of rights which it claims to have suffered both directly and through the
violation of individual rights conferred on Mexican nationals under Article 36,
paragraph 1 (b). The duty to exhaust local remedies does not apply to such a request.”69
103) As already stated, the greater the gravity of the allegations made against an accused, the
greater the need to ensure adherence to the procedural safeguards so as to ensure that
the allegations are tried in full conformity with the principles of due process and the
accused is treated in accordance with the rule of law.
104) Pakistan would have to establish an express exclusion to the Vienna Convention to
justify a position that merely on allegations of espionage levelled by a state, based on
confessions extracted by security forces, the precious safeguards under the Convention
stand displaced. Pakistan acknowledges that there is no such material basis on which it
could support such an extreme suggestion which would significantly undermine the
efficacy of the Convention.
105) It therefore postulates the wrong test – it suggests that India must establish extrinsic
support in customary international law over and above the plain language of the
Convention, to assert the rights guaranteed in a convention and expressed in language
that admits of no ambiguity. Pakistan’s case on this is hopeless.
106) Pakistan’s reliance on the judgement of this Court in Avena is misplaced. In Avena, the
United States contended that “…a substantial number of 52 persons listed in paragraph
16 above were United States nationals and that it thus had no obligation to these
individuals under Article 36 paragraph 1(b).”70. It was in this context that the Court
held that “…it is for Mexico to show that the 52 persons…held Mexican nationality at
the time of their arrest…”71. In the present case, however, Jadhav’s nationality was
69 Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, I.C.J. Reports 2004,
p. 12, para 40, 140.
70 Ibid., para. 53.
71 Ibid., para. 57.
36
never in dispute, being brought up by Pakistan only as an afterthought to bolster their
case.
37
VII. REPLY TO PAKISTAN’S SUBMISSION THAT THE VIENNA
CONVENTION IS NOT ENGAGED IN ESPIONAGE CASES
107) The entire discussion in this section of the Counter Memorial is based on quotations
made out of context, or authorities cited which stand for precisely the converse
proposition, or of extracts supplied without careful analysis, in relation to the assertion
that State practice establishes that the rights under Article 36 of the Vienna Convention
are not available to those detained, then arrested and tried for charges of espionage and
terrorism.
108) India has already made the point that the fundamental approach itself is erroneous, for
it asks the wrong question and thereby comes to the wrong answer. Pakistan poses the
question as to whether there is State practice which establishes that even those arrested
on serious charges of espionage and terrorism are to be accorded the right to consular
access, and comes to the answer that there is no such State practice. This is an exercise
in obfuscation. It half-heartedly addresses the real problem that confronts its legal
approach - that despite the fact that the issue of espionage was present to the minds of
those who negotiated the Vienna Convention, which is apparent from the material relied
upon by it also, no exception was made to the Vienna Convention to deal with cases of
espionage.
109) Recognising that it has a hopeless case that it seeks to run72, and also recognising that
the discussions and commentaries do not support any such proposition, Pakistan then
resorts to obfuscation by asking the wrong question, namely whether State practice
supports extending the Vienna Convention rights to foreign nationals accused of
espionage and terrorism, and then happily comes to the conclusion that it does not. India
does not base its case on customary international law or State practice, but on the plain
language of Article 36 – upon its language which does not admit of any ambiguity.
110) India does not suggest that legitimate consular functions include espionage and does
not suggest that consular officers, who were protected under the Vienna Convention,
are entitled to carry on espionage. Incidentally events of the past, however, leave a
72 that the Vienna Convention does not apply where the charges of espionage are levelled against a foreign
national.
38
serious doubt whether Pakistan acknowledges this fundamental proposition in its own
conduct.
111) Pakistan draws attention73 to the commentary by do Nascimento GE.74. These
discussions establish that while consular officers may personally be responsible in
certain circumstances and answerable to the local jurisdictions, “The International Law
Commission Draft adopted the theory that consular officers are not liable to arrest or
detention pending trial except in the case of grave crime and subject to a decision by
the judicial authority.”.75 The commentary then traces the discussions and the sharp
differences between the states. It goes on to state that that the Draft of the International
Law Commission was only slightly modified by Article 48, which added carving out
an exception in respect of civil action arising out of contracts concluded by consular
officers not acting as agents of the sending state, or from damages arising from
vehicular or other similar accidents. The commentary notes that this really did not add
anything substantive since paragraph 1 granted the immunity “…in respect of acts
performed in the exercise of consular functions.”76.
112) However, the discussion establishes that officers who were members of the consular
post are subject to the civil and criminal jurisdiction of the local state “…in respect of
their private acts, especially if they carry out any private gainful activity.”77. None of
this has any relevance to the present case. Besides, it is not Pakistan’s case that where
there is suspicion of a consular officer ostensibly employed in consular activities,
carrying on acts that constitute spying or espionage, the immunity against criminal
action is waived. The practice is to declare such an officer a persona non grata and ask
him to leave, and not to violate the sanctity of the consular premises or arrest such a
consular officer in defiance of the Vienna Convention on the specious ground that a
sending State that commits illegalities is not entitled to invoke the Vienna Convention.
It would be destructive of the very fabric of international relations if a State could
unilaterally charge a consular officer with acts of espionage, and thereby unilaterally
73 Counter Memorial, para 275-279.
74 Counter Memorial, Annex 115 - do Nascimento GE.‘The Vienna Conference on Consular Relations’ in The
International & Comparative Law Quarterly, Vol. 13, No. 4 (October 1964).
75 Ibid., page 1226.
76 Ibid., page 1227.
77 Ibid., page 1227.
39
disregard the immunity recognised since time immemorial in respect of those exercising
consular functions.
113) Pakistan asserts that the effect of the Cold War upon the exercise of the codification of
international law “cannot be overstated”78 but fails to acknowledge that if despite this
no express reservation was made in Article 36 of the Vienna Convention for charges of
espionage, it establishes that (unsurprisingly) States did not want to allow a vital
safeguard recognised in Article 36 to be subject to the actions of the receiving State in
which the foreign national was arrested, enabling it to jettison Article 36 by unilaterally
making allegations of espionage. If the logic espoused by Pakistan is carried to its
conclusion, then a receiving State can throw all diplomatic immunities to the winds by
alleging espionage, and then plead the existence of allegations against the sending State
of the commission of wrongs as a full justification for denial of the protections engrafted
in the Vienna Convention Rights. Pakistan invites this Hon'ble Court to accept that
lawlessness of this kind is consistent with the principles of rule of law.
114) It bears repetition that the absence of such exceptions in the Vienna Convention is
unsurprising, because the fundamental principles of due process recognise that the more
serious the charge, the greater the need for procedural safeguards. Besides, there are
some basic rules that must prevail between civilised nations, and cannot be displaced
by unilateral allegations levelled by the receiving State.
115) Recognising that the needs of national security and efficacy of investigation may
require the receiving State to withhold notification of the arrest by a few days, the
draftsmen of the Treaty built in some “play in the joints” by the use of the phrase
“without undue delay”. A State may be able to explain a few days gap between the
arrest and the notification if the time is spent bona fide in investigating matters relating
to espionage, before the sending State of the national is notified. It is one thing to
explain the lapse of time between the arrest and the notification to the home state, and
quite another to suggest that charges of espionage jettison Article 36.
78 Counter Memorial, para 280.
40
116) The reliance on the ILC Yearbook, 1957 Vol. 179 is completely out of context. The
Counter Memorial quotes from the discussion in the 414th meeting on June 11, 1957.80
Paragraph 1 of the minutes sets out the context of this discussion. It states that “The
Chairman invited the Commission to continue its general discussion of Mr García
Amador’s second report…”. It is difficult to fathom the relevance of the observations
quoted in paragraph 27. The same comment applies to the observations in paragraph
281 of the Counter Memorial, except that it is interesting that China’s protest against
what it considered a harsh and discordant statement made against it carried the
following assertion “…it did not arrest diplomatic and consular agents on false charges
of espionage, and did not violate the premises of embassies and consulates to attach
apparatus to their telephones and desks…”. The arrest of consular agents on charges
of espionage would break the very system of diplomatic immunity.
117) Pakistan quotes Sir Arthur Watts QC, in his authoritative commentary explaining the
ILC Draft Convention. In this commentary, Sir Watts explains the manner in which the
interests of a State in a criminal investigation were balanced with the right to consular
access. In paragraph 6 which is extracted81, it states “the expression without undue delay
used in paragraph 1 (b) allows for cases where it is necessary to hold a person
incommunicado for a certain period for the purposes of the criminal investigation.”.
Pakistan wrongly suggests that there is nothing in the authoritative commentary to
indicate that Article 36 would apply to individuals against whom allegations of
espionage are made. Firstly, it again poses the wrong question and arrives at the wrong
answer. Besides, the commentary explains how paragraph 6 accommodates the needs
of a State to conduct investigations during which it may hold a person incommunicado.
This was unnecessary if serious allegations of espionage and terrorism make Article 36
inapplicable.
118) Paragraph 288 of the Counter Memorial that has a quotation from the comments made
by Mr Tunkin and the Chairman which close this issue. While Mr Tunkin, mentioning
espionage cases, suggests that it may be desirable that the local authorities should not
be obliged to inform the Consul, the Chairman remarked that if the Commission went
into the question of whether cases of espionage should be made an exception the whole
79 ILC Yearbook 1957, volume 1, page 159, paragraph 16, column 2.
80 Counter Memorial, para 280.
81 Counter Memorial, para 284.
41
principle of consular protection and communication with nationals would have to be
reopened. Far from being reluctant to undertake an examination of this problem, these
extracts suggest that the problem of espionage was very much on the table despite which
no exception was made to the treaty Article 36 in respect of cases where there were
allegations of espionage.
119) Paragraph 295 of the Counter Memorial is in the same direction. The conclusion,
however, suggested in paragraph 296 of the Counter Memorial is directly contrary to
what is established by the very extracts upon which reliance is placed - it bears
repetition that despite the problem of espionage being raised and discussed, even if it
was recognised that it could in one view constitute a limitation on the right to consular
access (as the Chairman’s remarks noted), in the article that was finally put in the treaty,
no such limitation was recognised.
120) Pakistan brings up the issue of the problems confronted in implementing the provisions
of the Vienna Convention in the context of pleas for asylum and in situations of dual
nationality. Both these also establish that the Vienna Convention is indeed the
exhaustive rubric of consular access. It is invariably the provisions of the Vienna
Convention that provide the basis for resolving the situations, finding solutions
consistent with the Vienna Convention.
121) A case of asylum is the converse of a case where a person who is a national of the
sending State and has roots in that State, and does not disclaim nationality. The question
whether a person who seeks asylum and thereby expresses an intention to abandon his
nationality, should be treated in the same way under Article 36 of the Vienna
Convention is a vexed issue. Where Article 36 would detract from the human rights of
the arrested national, its applicability raises a challenge which has no definite answer.
122) Equally, applying Article 36 to a person of dual nationality presents legal challenges
which are sui generis. Disapplying Article 36 to a person of dual nationality is on the
legal premise that being a national of the arresting State, he is not entitled to the
protection of Article 36. Whether or not this legal premise is justified is itself a vexed
issue.
42
123) In its desperation to find answers to the inexcusable conduct of brazenly violating
Article 36 of the Vienna Convention, and not being able to find any support for its
underlying theme that Article 36 is jettisoned the moment allegations of espionage are
made, Pakistan gives examples of two areas where the application of Article 36 in its
own context has unsettled results. These examples are completely irrelevant.
124) The practice in the United Kingdom cited in paragraphs 301-2 and the Irish practice
cited in paragraph 303 of the Counter Memorial do not add anything to this discussion.
The commentary in paragraph 305 of the Counter Memorial only recognises the
problem – what it explains makes the example completely irrelevant to the present case.
Where there is dual nationality, the first issue is to establish the nationality of an
individual. The Vienna Convention proceeds of the premise that a national of one State
is in detention in another state. In the case of dual nationality, the first step is to establish
the capacity of a State to claim a right of protection since “…it is accepted that any of
the states of nationality may represent the person”. Thus, the arresting state itself
represents - or can claim to represent - the person, in which case the question of applying
Article 36 would simply not arise. This is an interesting question of international law -
it would be decided in an appropriate case when such an occasion arises. Inviting the
Court to decide this in the present case is a misadventure.
125) The language of Article 36 admits of no ambiguity. Pakistan does not even seek to
establish that settled State practice in the context of Article 36 has always excluded its
extension to cases of espionage. (The question framed once again in paragraph 309 of
the Counter Memorial is the converse.) The fact that countries have insisted upon
consular access even where there are allegations of espionage (as suggested in
paragraph 313) displaces any suggestion that Article 36 was not intended to apply to
cases of espionage. Pakistan gives a series of examples which, in its assertion, are the
“historic and modern example of espionage cases that states often operated on the
voting that they were not entitled to or were not going to be able to gain access to their
espionage agents once they had been captured”.82
82 Counter Memorial, para 314.
43
126) India submits that apart from the fact that the material relied upon for what happened
in those cases is hardly reliable for it is wanting in detail, even from that material what
is stated is not borne out:
a) In the case of Mikhail Gorin, it is not known whether or not the US denied him
consular access. It appears he was allowed to telephone the Soviet Embassy three
times, and he was visited by the Soviet Vice-Consul and was permitted to speak
in Russian in the presence of a US naval intelligence officer.
b) In the case of Gary Powers, he was denied, as per the material attached, consular
access for 21 months. The material suggests that his father attended his trial and
as per other material available in public domain, the American ambassador was
invited to view the trial, but he deputed two junior officers. It also appears that
this was prior to the Vienna Convention.
c) Frederick Barghoorn was held incommunicado for 16 days, and was detained on
espionage charges. There is no material to suggest that after the 16 days he was
denied consular access. Besides what was in play in this case was a bilateral
convention between US and Russia (of 1933) prior to the advent of the Vienna
Convention.
d) Hanson Huang was a Chinese American born in Hong Kong. He was detained in
Beijing and sentenced to 15 years imprisonment for espionage. His friend was
allowed to visit him. An article in the New York Times suggests that no diplomatic
action was taken to gain access to him since he was not a US citizen.83 This
represents yet another instance of the problem of relying on newspaper reports to
build up a case rather than on actual records which would establish whether or not
consular access was sought, and if it was denied, the grounds for the denial.
e) Harry Wu - a naturalised US citizen who was arrested in China in 1995 was
granted consular access, albeit it was after he was formally charged with
espionage. It is not known whether US was notified earlier, and whether it sought
83 Reply, Annex 17.
44
access to its national. Besides, this example negates any suggestion that consular
access is not available where the charges are those of espionage.
f) Xue Feng and Phan Phan-Gillis, both US citizens arrested in China were granted
consular access. They were also arrested on charges of espionage.
g) The reference to the case of the two USSR diplomats and the US diplomat again
are wanting in any detail that could establish any kind of practice.
127) As a matter of principle, examples where States have granted consular access after
considerable delay or have denied access cannot affect the interpretation of the treaty
and of Article 36 in particular. Pakistan, in this misadventure, however does not push it
to the point of suggesting that there is an established practice to show that consular
access is invariably denied. That being so, the individual incidents can at best establish
that Pakistan may not be the only state which has violated Article 36 of the Vienna
Convention or similar provisions in bilateral treaties that preceded the Vienna
Convention. That is hardly a defence in an action brought for relief against Pakistan’s
violation of its international obligations.
128) Pakistan asserts that the Vienna Convention was “…not intended to be engaged …in
the case of an individual who from his conduct and materials in his possession revealed
a prima facie case of State-sponsored espionage.”.84 It cites Luke T. Lee & John B.
Quigley (1961)85 to further its proposition that espionage is an exception to Article 36.
However, in a later publication by Luke T. Lee (1966)86 Chapter 14 has two passages
of significance:
a) He mentions that Article 36 “…may be regarded as one of the most important
contributions to consular law by the Vienna Convention. At the crux of the issue
were the duties of the receiving state to permit unimpeded communication between
consuls and nationals of the sending state, to inform consuls of the imprisonment
or detention within their district of such nationals, and to allow consuls to visit
84 Counter Memorial, para 325.
85 Counter Memorial, para 317.
86 Reply, Annex 18.
45
them in prison, custody or detention. These rights of consuls admittedly are basic
to their protective functions”.
b) He goes on to note that “…although customary international law does not require
the receiving State to accord the above triple rites to consuls, such rights are often
the subject of consular instructions and treaties. Sometimes they are granted by
virtue of “international courtesy”, induced at least in part by the desire for
reciprocity.” He goes on to discuss the cases of Frederick Barghoorn and Gary
Powers. Both these preceded the Vienna Convention.
c) Even in respect of these two cases, the commentary notes that “The Soviet refusals
in the above cases were in direct contravention of the 1933 Soviet assurance to
the United States concerning the consular right to be notified of the arrest of the
national within three days in large centres and seven days in remote areas as well
as the right to visit such nationals “without delay”. He then goes on to state “It
may be observed that no exception is made to persons charged with espionage
activities, whether in the 1933 agreement, the Soviet-United States Convention,
or the Vienna Convention”. (emphasis added)
129) Pakistan’s case that allegations of espionage exclude the operation of Article 36 is
simply hopeless.
130) On the facts of the case, Pakistan mischaracterises India’s case, in order to find a
response to such a mischaracterised case.
131) In its narrative of the factual background, Pakistan claims that Jadhav was arrested on
3 March 2016. On 25 March 2016 , it is alleged that he “voluntarily confessed”.
Pakistan had no concerns about the news of his arrest becoming public and impairing
any investigation, for it wasted no time in setting its propaganda machinery in motion.
It also issued a demarche to the Indian High Commissioner.
46
132) There is no material placed which would establish that giving consular access prior to
extracting a confession would have so imperilled its security or hampered investigation,
that delaying making available of this information by 22 days was justified. This delay
is plainly a violation in the absence of a cogent explanation for non-communication of
his arrest for 22 days.
133) Even after the notification, despite unequivocal demands by India for consular access,
such consular access has been denied all through his arrest and detention in Pakistan
including in the course of his “trial”. Even after his conviction, consular access has not
been provided. It is obvious that compulsions other than those of bona fide security
needs are what are driving Pakistan’s actions and omissions, even if they result in an
abject failure to comply with international obligations.
134) India also states that the repeated reliance upon a confession extracted during the
custody of Jadhav lacks even a scintilla of credibility. India has independently had the
confession examined by forensic experts who have confirmed (which is obvious to an
extent apparent to even a lay observer) that the confession is anything but voluntary and
is a heavily edited version. However, on a matter of principle, India had opposed and
continues to oppose Pakistan’s attempts to bring the merits of the trial and conviction
including the evidence such as this bogus confession into the present proceedings while
contending in parallel that this court does not have appellate jurisdiction. India has had
no access to the evidence at any stage. Besides, the strength (or its absence) of the case
against Jadhav, is irrelevant to whether the rights under the Vienna Convention were
available to him and to India in the present case. Pakistan is seeking to draw a veil over
its brazen defiance of the Vienna Convention and its contempt for international
obligations by diverting attention to matters that are irrelevant in the present
proceedings and by selectively placing material illegally extracted by it.
135) Paragraph 2 of Article 36 recognises that the laws and regulations of the receiving state
must enable full effect to be given to the purposes for which the rights accorded under
this article are intended. Domestic law in any event is never a defence for violation of
international obligations. Pakistan’s suggestion that the rights under Article 36 can be
superseded by domestic law is plainly wrong.
47
VIII. THE 2008 BILATERAL AGREEMENT HAS NO BEARING ON THE
PRESENT DISPUTE
136) Pakistan dwells upon the background of this Agreement and the steps in its negotiation.
None of those have any relevance to the present case.
137) India asserts that Article 36 of the Vienna Convention is the primary source of the
international obligations and the rubric for consular relations created by a multilateral
treaty. The Vienna Convention recognises that there may be other treaties, particularly
bilateral agreements between countries that address the same issue or similar issues.
The relationship between those treaties and the Vienna Convention is spelt out in
paragraph 2 of Article 73 which states that “Nothing in the present Convention shall
preclude States from concluding international agreements confirming, or
supplementing or extending or amplifying the provisions thereof.”
138) Pakistan invites the Court to hold that a bilateral agreement, which sought to address
entirely different issues as explained later, creates an exception to Article 36, which
would considerably erode its efficacy considering the kind of cases that frequently arise
between the two neighbours India and Pakistan. It invites this court to hold that India
would have thrown away the rights guaranteed under the Vienna Convention and
agreed to its nationals being subject to the vagaries of the system in Pakistan where
military trials extend to civilians, and for purposes of propaganda Pakistan could
trample underfoot the rights of individuals merely on allegations of espionage and
terrorism.
139) The 2008 Agreement sets out its object – “…the objective of humane treatment of
nationals of either country arrested, detained or imprisoned in the other country…”.
140) Considering that India and Pakistan are neighbours both on land and sea, and where
people who live in the border areas frequently strayed into the other country and ended
up in custody, it was found necessary to have a bilateral agreement that would
supplement the Vienna Convention. Thus, the matters covered in paragraphs (i)87,
87 Each Government shall maintain a comprehensive list of the nationals of the other country under its arrest,
detention or imprisonment. The lists shall be exchanged on 1st January and 1st July each year.
48
(iii)88, (iv)89 and (v)90 were agreed to and these are not matters that are covered by the
Vienna Convention, but supplement and extend the provisions of the Vienna
Convention.
141) Pakistan appears to rely upon paragraphs (iv) and (vi)91. Neither of them suggest that
they detract from the general provisions and the overarching protection of Article 36.
142) The requirement that each government shall provide consular access within three
months does not give an excuse to delay consular access, but, even if it does apply as
supplementing and amplifying Article 36, it can only fix an outer limit of three months
in which consular access must be provided.
143) India does not accept that this Bilateral Agreement is to be read as superseding Article
36 and India asserts that its rights under Article 36, as well as Jadhav’s rights under
Article 36 are uninfluenced by this Bilateral Agreement of 2008. Even if paragraph (iv)
of the 2008 Agreement was to apply, Pakistan could have provided a substantial
explanation for why it needed three months for providing consular access, and upon
which it could have claimed that it has complied with its treaty obligations. Even on the
erroneous premise that paragraph (iv) applies, Pakistan has not complied with its treaty
obligations.
144) Worse is the case of its reliance on paragraph (vi) of the Bilateral Agreement. The
phrase “examine the case on its merits” makes it apparent that it applies to the
agreement to release and repatriate persons within one month of the confirmation of
their national status and completion of sentences. As an exception to this, India and
Pakistan reserve the right to examine on merits of the release and repatriation of persons
upon completion of their sentences, where their arrest, detention or sentence was made
on political or security grounds.
88 Each Government undertakes to expeditiously inform the other of the sentences awarded to the convicted
nationals of the other country.
89 Each Government shall provide consular access within three months to nationals of one country under
arrest, detention or imprisonment in the other country.
90 Both Governments agree to release and repatriate persons within one month of confirmation of their
national status and completion of sentences.
91 In case of arrest, detention or sentence made on political or security grounds, each side may examine
the case on its merits.
49
145) Paragraph (vii)92 of the 2008 Agreement also calls for compassionate humanitarian
considerations in which each side may exercise its discretion to allow early release and
repatriation of persons.
146) The focus of the 2008 Bilateral Agreement, in these three paragraphs, was upon the
return of those arrested, tried and convicted in the receiving State, being nationals of
the other State. India and Pakistan have shared land and sea borders, and there are
frequent occasions of nomads or fisherman straying across the borders and being
arrested. This treaty primarily sought to address problems arising out of these kinds of
situations.
147) Pakistan invites this Court to add an exception to the Vienna Convention, which
exception was mooted but not placed in Article 36 of the Vienna Convention as
discussed earlier. Such an interpretation would be contrary to the plain english of
Article 73 – it would neither supplement nor amplify but instead it would qualify and
restrict the operation of Article 36. Pakistan invites the court to rewrite the relationship
between the Vienna Convention and later bilateral treaties. This argument is a hopeless
as its earlier arguments.
148) The discussion in paragraph 378 of the Counter Memorial is destructive of Pakistan’s
argument. Judge Shigeru Oda’s treatise deals with the contrast between what is now
Article 30 of the Vienna Convention on the Law of Treaties (“VCLT”) and the Vienna
Convention of 1963. Article 73 (2) of the Vienna Convention is cited as a provision
which recognises the right to supplement its provisions by bilateral treaties “which do
not derogate from the obligations of the general convention”. The text of Article 30 (2)
of the VCLT, according to the author, goes far beyond the mere confirmation of the
legitimacy of bilateral agreements, and he argues that if Article 30 (2) were applied then
the bilateral consular agreements would prevail over the Vienna Convention. This
analysis of Article 73 is directly contrary to what Pakistan invites this Court to hold in
the present case.
92 In special cases, which call for or require compassionate or humanitarian considerations, each side
may exercise its discretion subject to its laws and regulation to allow early release and repatriation of
persons.
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149) Clearly, it is Article 73 (2) which is a part of the Vienna Convention 1963 that would
apply and not the general provisions of Article 30 of the VCLT. It is also relevant in
this context to note that India is not a party to the VCLT. While India accepts that a
number of the principles incorporated in the VCLT are codification of the general
principles of international law and, for that reason, of relevance, the suggestion that
Article 30 of the VCLT would override Article 73 (2) of the Vienna Convention has
merely to be stated to be rejected.
150) Pakistan states the point with a degree of ambivalence – it does not gather the courage
to suggest that Article 30 of the VCLT would override Article 73 (2). Instead in its
conclusions contained in paragraph 385 of the Counter Memorial, Pakistan claims that
the Bilateral Agreement is a “supplement and/or amplification” of Article 36. India
generally agrees with this assertion but points out that this premise is destructive of
Pakistan’s case on the interpretation it seeks to place on paragraph (vi) of the Bilateral
Agreement of 2008.
151) The fallacy of Pakistan’s case – and the point that reading paragraph (vi) of the Bilateral
Agreement of 2008 would emasculate Article 36 becomes apparent from the point made
in paragraph 385.4 of the Counter Memorial. The phrases “political” and “national
security” are amorphous and indefinite in their import. If both countries can unilaterally
decide the application of Article 36 to individual cases and reject its application on such
subjective conditions, Article 36 would have lost its meaning. Arrests on trumped up
charges are frequently made by Pakistan - the present case is a text book case of such
conduct. All that Pakistan would have to do to wriggle out of Article 36 is to add a
ground that can provide a hook to later claim “political” considerations in the arrest,
even if it does not show up in the final charges and conviction, and on that basis deny
consular access. Pakistan may as well denounce Article 36.
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IX. RELIEF SOUGHT BY INDIA IS APPROPRIATE
152) India has given substantial grounds and on the basis of which it has sought the relief
that the Court may restrain Pakistan from giving effect to the sentence, conviction and
direct the release of Jadhav. Pakistan suggests that no relief beyond review and
reconsideration, as directed in LaGrand and Avena, should be the only relief which
should be granted.
153) Pakistan fails to engage with the key issues in this regard. This Court recognised that in
cases of violation of the Vienna Convention, as in other cases, the principles of
restitution would apply proprio vigore. Having so held, this Court found that, accepting
the United States’ assertion that the system that is prevalent in their country is fully
compliant with due process, and because the lapse could be addressed by review and
reconsideration, the Court balanced the relief in those cases.
154) India has set out the grounds of distinction between those cases in the present case. The
only way in which Pakistan seeks to engage with the grounds of distinction is by citing
a report it has obtained from “military law” experts. In this context India has the
following comments to offer:
a) India has based its case on the underlying principle that Pakistan’s criminal justice
system by way of trial in the Military Courts does not satisfy the minimum
standards of due process in its application to civilians. India has relied on
incontrovertible international material that has found serious lapses in the manner
in which the criminal justice system, by trial held by Military Courts, has failed to
satisfy the standards recognised in contemporary times by the international
community. The two experts do not purport to testify on what would be the
minimum standards of due process that this Court would apply - and rightly so,
for the reason that this would be a matter for this Court to decide and not for
experts on military law.
b) In the Conclusion as is set out in Paragraph 3 of their report, they note that the
jurisdiction of Military Courts to try civilian offences such as espionage and
terrorism (i.e. offences beyond the law applicable to members of the Armed
Forces), their jurisdiction is limited to persons already subject to Service
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jurisdiction. They go on to state that “Modern state practice in most jurisdictions
is that civil authorities of the state will undertake any prosecution of these offences
where there is concurrent jurisdiction.”.93 This supports India’s position that the
Pakistan system in which Military Courts have exclusive jurisdiction, to the
exclusion of the civil authorities, runs counter to the modern State practice.
(emphasis added)
c) The experts say that the “Military Courts of Pakistan are soundly based in statute
which provides the substantive legal basis for their jurisdiction”.94 They also find
that it is consistent with Pakistan’s Constitution. Both these assertions are
irrelevant for the present case for the reason that the international standards of
minimum due process are not subject to domestic law, but provide a standard on
which domestic law can, in certain situations be measured. It is the domestic law
which is tested for its adherence to the minimum standards of due process in the
context of a case.
d) The experts notice that judicial review by the constitutional courts is available and
in their view it “appears to provide a potential effective safeguard against the
manifest failings in due process”.95 India offers two comments on matters that
are apparent in this guarded statement; Firstly, it acknowledges that in the system
there are “manifest failings”. Secondly, it does not address the narrow remit of the
courts exercising the power of judicial review, which is elaborately discussed in
the judgement of the Pakistan Supreme Court cited by the experts. A fair trial in
an open court presided over by a judge who is independent of the executive, and
in which the accused gets a fair chance to defend himself and avail of legal
assistance of his choice are indispensable elements of due process as it is
understood in present times with the evolution of human rights jurisprudence. All
these are absent - they are the manifest failings in the system. The replacement of
judicial review by the National Constitutional Courts can hardly be a substitute
for these basic elements of due process. By way of contrast, the Indian Supreme
Court has expanded its scope of review in an appeal arising from a sentence of
death, recognising the need of the highest degree of judicial scrutiny,
93 Counter Memorial, Annex 142, page vi.
94 Ibid.
95 Ibid., page vii
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untrammelled by procedural limitations, where the sentence of death is to be
awarded to a human being. And these principles have been applied to a Pakistani
national apprehended when he was openly engaged in acts of terrorism, caught by
one of his victims whom he riddled with bullets.
e) Finally the experts close with a note of caution stating that they are aware of the
criticisms made of the courts which try terrorism offences, but at that they were
not in a position “to consider whether those criticisms are valid without further
extensive research and review”96.
155) This report of the experts hardly supports Pakistan’s challenge to India’s position – on
the contrary the Court now has a report filed by Pakistan which substantially confirms
what India has said about the failings in the system of trial by Military Courts.
156) It bears repetition that it is Pakistan which seeks to invite this Court to assume the role
of an appellate court, and for which purpose it raises the issue of the passport and the
issue of the confession, inviting this Court to endorse its wrongful actions leading to
the farcical conviction. India raises the issue of violation of the rights and Article 36
and limits its case to seeking a vindication of its position that Pakistan has acted illegally
and in breach of its international obligations. India does not invite this Court to reopen
the conviction on merits. This court has already held that the violation of Article 36
results in the injured state and injured accused seeking “restitution in integrum.” In the
facts and circumstances of the present case, India invites this Court to restrain Pakistan
from acting on the conviction on the ground that it was secured by a means which was
in brazen violation of Article 36, and in the present case, the relief of review and
reconsideration would be highly inadequate considering the facts and circumstances set
out in its Memorial. This does not amount to seeking an appellate review of the trial
and the verdict of conviction.
157) India challenges Pakistan’s assertions that going beyond review and reconsideration
would, in the facts and circumstances of the case go beyond the legitimate functions of
this Court. As set out in paragraph 473 of the Counter Memorial, in their domestic law,
the convictions by the Military Courts can only be assailed on the ground of coram non
96 Ibid.
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judice, absence of jurisdiction, mala fide and malice in law. Pakistani law does not have
an appellate procedure by which a trained independent judge dispassionately reviews
the findings of a Military Court. In the absence of any independent procedure of trial or
review of the evidence de novo by an independent appellate court, India claims that the
relief that should be granted is as has been sought in its Memorial. To suggest to the
contrary and to argue that this Court does not have the power to grant such relief is to
seriously curtail the powers of this Hon'ble Court in the matter of grant of protection to
the human rights of those accused of serious offences and facing the capital sentence,
as well as those of the sending State to help its nationals effectively defend themselves
– a vital right which is engrafted in Article 36 of the Vienna Convention.
India reserves the right to modi fy or extend the term s of its
submissions, as well as the grounds invoked in this Reply.
R esp ect fu lly Su bmitted
Dr. Deepak Mittlll
Agent of the Rep ub lic of India
Before th e International Cour t of J ustice
17 Apr il 2018
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Certification
I certify that the Annexes are true copies of the documents referred.
Dr. Deepak Mittal
Agent ofthe Republic ofIndia
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