Pakistan rejects ‘baseless, inaccurate’ allegations by Harish Salve, India’s legal counsel in the Kulbushan Jadhav case

Pakistan rejects ‘baseless, inaccurate’ allegations by Harish Salve, India’s legal counsel in the Kulbushan Jadhav case
By: Asghar Ali Mubarak
The Pakistani Foreign Office spokesperson H.E.Ms. Aisha Farooqui on Sunday said that Pakistan rejects the “baseless and inaccurate” allegations by Harish Salve, India’s legal counsel in the Kulbushan Jadhav case. The Foreign Office says Pakistan has fully complied with the International Court of Justice’s judgment in Kulbhushan Jadhav case. Responding to queries of media persons, Foreign Office Spokesperson Aisha Farooqui said Pakistan remains committed to continue doing so as the case proceeds further. She firmly rejected as inaccurate and contrary to facts the Indian legal counsel Harish Salve’s statements that Pakistan has not complied with the ICJ’s judgment in the case. Pakistani Foreign Office spokesperson H.E.Ms. Aisha said Pakistan has granted India consular access to Jadhav and is processing measures for effective review and reconsideration as per the guidelines provided by ICJ in its Judgment. The spokesperson said Pakistan, being a responsible state abides by all its international obligations. It mentioned here that in an online lecture on May 3, Mr.Salve, who had represented India in the case at the International Court of Justice (ICJ), alleged that Pakistan refused to respond to Indian queries about how it would carry out the ICJ’s judgment and review and reconsider Jadav’s case.”We have written four to five letters to Pakistan […] but they just keep on denying. I think we have reached a point where we have to now decide whether we want to go back to ICJ for consequential directions because Pakistan has not moved ahead,” Tribune India quoted Salve as saying. He also alleged that Pakistan granted consular access to Jadhav “too late” and refused to share details of the case with India. The Pakistani Foreign Office, while refuting the allegations, said that Pakistan has “fully complied” with the international court’s judgment. “Pakistan has granted India consular access to commander Jadhav and is processing measures for effective review and reconsideration as per the guidelines provided by ICJ in its judgment,” a statement from the FO read. The Pakistani Foreign Office also said that Salve’s statements were “regrettable and a misrepresentation of facts”, adding that Pakistan followed “all its international obligations”. The ICJ in its verdict in July 2019 had ruled that Jadhav be allowed consular access immediately and asked Pakistan to ensure “effective review and reconsideration of his conviction and sentences”. The ICJ had, however, rejected all other remedies sought by India, which included the annulment of the military court decision convicting Jadhav, restricting Pakistan from executing the sentence, securing Jadhav’s release and ordering his return to India.
Jadhav was born in Sangli, Maharashtra, on 16 April 1970 to Sudhir and Avanti Jadhav. His father is a retired Mumbai Police officer. Jadhav is married and has two children. His family resides in Powai, Mumbai. According to reports, Jadhav joined the Indian National Defence Academy in 1987 and was commissioned in the engineering branch of the Indian Navy in 1991.Media has reported that he began to gather information and intelligence within India after the 2001 attack on the Parliament of India. After 14 years of service, he was inducted into intelligence operations in 2003 and established a small business in Chabahar in Iran from where he made several undetected visits to Karachi and Balochistan.
Jadhav — a serving commander of the Indian Navy associated with Indian terrorist agency Research and Analysis Wing RAW — was arrested on March 3, 2016, from Balochistan on allegations of espionage and terrorism.
In his subsequent trial at a military court, Jadhav had confessed to his involvement in terrorist plots.
The terrorist / spy was subsequently sentenced to death in 2017. However, India insisted that Jadhav was not a (terrorist) spy and said he was kidnapped from Iran.
On April 10, 2017, Army Chief Gen Qamar Bajwa had endorsed the death penalty for Jadhav. In June 2017, the Indian terrorist/ spy had filed a mercy petition against the death penalty, in which he again confessed to his involvement in terrorist activities.
However, before Pakistani authorities could make a final decision, the ICJ, after being approached by India, had ordered a stay in his execution through an interim order.
On March 30th, 2016 the Inter Services Public Relations (ISPR) released a confessional video statement of Indian terrorist/ spy agent Kulbhushan Yadav admitting to foment terrorism in Balochistan and Karachi.
He was arrested red-handed by law-enforcement agencies in the first week of the current month while infiltrating into Pakistan from the Saravan border area of Balochistan with Iran.
Following is the full text of his voluntarily confession shown at a press conference jointly addressed by the former Minister for Information, Broadcasting and National Heritage Senator and ISPR Director General Lieutenant General Asim Saleem Bajwa(Now Special Assistant to Prime Minister of Pakistan on Information ) at the Press Information Department Islamabad.
“My name is Commander Kulbhushan Yadav and I am the serving officer of Indian Navy. I am from the cadre of engineering department of Indian Navy and my cover name was Hussein Mubarik Patel, which I had taken for doing some intelligence gathering for Indian agencies.
“I joined the National Defence Academy in 1987 and subsequently joined Indian Navy in Jan 1991 and subsequently served for the Indian Navy till around December 2001 when the Parliament attack occurred and that is when I started contributing my services towards gathering of information and intelligence within India.
“I live in the city of Mumbai in India. I am still the serving officer in the Indian Navy and will be due for retirement by 2022 as a commissioned officer in Indian Navy after having completed 14 years of service by 2002.
“I commenced intelligence operation in 2003 and established a small business in Chabahar in Iran as I was able to achieve undetected existence and visits to Karachi in 2003 and 2004 and having done some basic assignments within India for RAW.
“I was picked up by RAW in 2013 end. Ever since I have been directing various activities in Balochistan and Karachi at the behest of RAW and deteriorating law and order situation in Karachi, I was basically the man for Mr Ani Kumar Gupta who is the joint secretary of RAW and his contacts in Pakistan especially in Balochistan Student Organisation.
“My purpose was to hold meetings with Baloch insurgents and carry out activities with their collaboration.
“These activities have been of criminal nature, leading to killing of or maiming of Pakistani citizens.
“I realize during this process that RAW is involved in some activities related to the Baloch liberation movement within Pakistan and the region around it.
“There are finances which are fed into the Baloch movement through various contacts or various ways and means into the Baloch liberation (movement) and various activities of the Baloch liberation and RAW handlers go towards activities which are criminal, which are anti-national, which can lead to maiming or killing of people within Pakistan and mostly these activities were centred around of what I have knowledge is of ports of Gwadar, Pasni Jewani and various other installations, which are around the coast damaging various other installations, which are in Balochistan.
“So the activity seems to be revolving and trying to create a criminal sort of mindset within the Baloch liberation which leads to instability within Pakistan. In my pursuit towards achieving the set targets by my handlers in RAW, I was trying to cross over into Pakistan from the Saravan border in Iran on March 3, 2016, and was apprehended by Pakistani authorities while on the Pakistani side and the main aim of this crossing over into Pakistan was to hold (a) meeting with Baloch separatists in Balochistan for carrying out various activities, which they were supposed to undertake and carrying backwards the messages which had to deliver to Indian agencies.
“The main issues regarding this were that they were planning to conduct some operations within the next immediate (near) future so that was to be discussed mainly and that was the main aim of trying to coming into Pakistan.
“So that moment I realized that my intelligence operations have been compromised on my being detained in Pakistan, I revealed that I am an Indian naval officer, and it is on mentioning that I am Indian naval officer, the total perception of the establishment of the Pakistani side changed and they treated me very honorably and they did utmost respect and due regards and have handled me subsequently on a more professional and proper courteous way and they have handled me in a way that befits that of an officer and once I realized that I have been compromised in my process of intelligence operations, I decided to just end the mess I have landed myself in and just wanted to subsequently move on and cooperate with the authorities in removing complications which I have landed myself and my family members into, and whatever I am stating just now, it is the truth and it is not under any duress or pressure. I am doing it totally out of my own desire to mention and come clean out of this entire process which I have gone through last 14 years.”
On 8 May 2017, India filed an Application instituting proceedings against Pakistan in respect of a dispute concerning alleged violations of the Vienna Convention on Consular Relations of 24 April 1963 “in the matter of the detention and trial of an Indian national, Kulbhushan Sudhir Jadhav”, who had been sentenced to death by a military court in Pakistan in April 2017. India claimed that Pakistan had failed to inform it, without delay, of the arrest and detention of its national. It further contended that Jadhav had not been informed of his rights under Article 36 of the Vienna Convention on Consular Relations, and that India’s consular officers had been denied access to Jadhav while he was in custody, detention and prison, and had been unable to converse and correspond with him, or arrange for his legal representation. As basis for the Court’s jurisdiction, India referred in its Application to Article 36, paragraph 1, of the Statute of the Court and Article I of the Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes.
On the same day, India also filed a Request for the indication of provisional measures, requesting the Court to direct Pakistan to “take all measures necessary to ensure that Kulbhushan Sudhir Jadhav is not executed” and to “ensure that no action is taken that might prejudice the rights of the Republic of India or Kulbhushan Sudhir Jadhav with respect to any decision the Court may render on the merits of the case”.
By an Order dated 18 May 2017, the Court directed Pakistan to “take all measures at its disposal” to ensure that Jadhav would not be executed pending a final decision in the case, and to inform the Court of all the measures taken in implementation of that Order. It also decided that, until the Court had given its final decision, it would remain seised of the matters which formed the subject matter of the Order.
Public hearings on the merits of the case were held from 18 to 21 February 2019. In its Judgment of 17 July 2019, the Court first outlined the background of the dispute, before concluding that it had jurisdiction to entertain India’s claims based on alleged violations of the Vienna Convention. The Court next addressed the three objections to admissibility raised by Pakistan, which were based on India’s alleged abuse of process, abuse of rights and unlawful conduct. The Court concluded that India’s Application was admissible.
Turning to the merits of the case, the Court examined in turn each of Pakistan’s three contentions concerning the applicability of the Vienna Convention. Having found that none of the arguments raised by Pakistan could be upheld, the Court concluded that the Vienna Convention was applicable in the case, “regardless of the allegations that Jadhav was engaged in espionage activities”.
Next, the Court examined India’s claim that Pakistan had acted in violation of its obligations under Article 36 of the Vienna Convention, by failing to inform India, without delay, of Jadhav’s detention. The Court observed that Pakistan did not contest India’s assertion that Jadhav had not been informed of his rights under Article 36, paragraph 1 (b), of the Convention, and thus concluded that Pakistan had breached its obligation under that provision.
As regards Pakistan’s alleged breach of its obligation to inform India, without delay, of the arrest and detention of Jadhav, as provided for in Article 36, paragraph 1 (b), of the Vienna Convention, the Court found that since Pakistan had failed to inform Jadhav of his rights, it was under an obligation to inform India’s consular post of his arrest and detention, that obligation also being implied by the rights of consular officers, under Article 36, paragraph 1 (c) of the Convention, to visit the national, “to converse and correspond with him and to arrange for his legal representation”. The Court then pointed out that Pakistan had notified India of Jadhav’s arrest and detention on 25 March 2016, some three weeks after his arrest; taking account of the particular circumstances of the case, the Court considered that Pakistan had thus breached its obligation to inform the consular post “without delay”, as required by Article 36, paragraph 1 (b), of the Vienna Convention.
The Court then turned to India’s third claim concerning Pakistan’s alleged failure to allow Indian consular officers to communicate with Jadhav, recalling in this regard that “Article 36, paragraph 1, creates individual rights, which, by virtue of Article I of the Optional Protocol, may be invoked in this Court by the national State of the detained person”. It being undisputed that Pakistan had not granted any Indian consular officer access to Jadhav, the Court was of the view that India’s alleged failure to co operate in the investigation process in Pakistan did not relieve Pakistan of its obligation to grant consular access, and did not justify Pakistan’s denial of access to Jadhav by consular officers of India. Further, Jadhav’s choice to be represented by a defending officer qualified for legal representation did not dispense with the consular officers’ right to arrange for his legal representation. The Court therefore concluded that Pakistan had breached the obligations incumbent on it under Article 36, paragraph 1 (a) and (c), of the Vienna Convention, by denying India’s consular officers access to Jadhav, contrary to their right to visit him, converse and correspond with him, and arrange for his legal representation.
With regard to India’s contention that it was entitled to Restitutio in Integrum, its request for the Court to annul the decision of the military court and restrain Pakistan from giving effect to the sentence or conviction, and its further request for the Court to direct Pakistan to take steps to annul the decision of the military court, release Jadhav and facilitate his safe passage to India, the Court found that the submissions made by India could not be upheld. The Court also found, however, that Pakistan was under an obligation to provide, by means of its own choosing, effective review and reconsideration of the conviction and sentence of Jadhav, so as to ensure that full weight was given to the effect of the violation of the rights set forth in Article 36 of the Vienna Convention.

On 10 April 2017, Jadhav was sentenced to death by a Field General Court Martial (FGCM) in Pakistan, following a confession before the magistrate and court. Jadhav’s trial lasted three and a half months and the charges he was convicted for included spying for India, waging war against Pakistan, sponsoring terrorism, and destabilizing the state. He was tried in a military court due to his naval background and the sensitive nature of his case, involving espionage and sabotage. The sentence was confirmed by army chief Qamar Javed Bajwa, and released via the ISPR Pakistan’s Defence Minister stated that under the provisions of the Pakistan Army Act of 1952, Jadhav had the right to appeal against his conviction on three appellate forums within 40 days.
In May 2017, India approached the International Court of Justice (ICJ), asserting that Pakistani authorities were denying India its right of consular access to Jadhav in violation of the Vienna Convention.
The ICJ proceedings began in The Hague on 15 May to review the case. India and Pakistan both sent their legal teams to put forward their arguments, led by Harish Salve and Khawar Qureshi respectively.
On 18 May 2017, the International Court of Justice stayed the hanging of Jadhav.
On 22 June 2017, Pakistani sources confirmed that Jadhav had sought clemency from the country’s army chief following his conviction. Pakistan also released a new confessional video of Jadhav, in which he stated that he visited Karachi twice for gathering intelligence on naval facilities. He also admitted to supporting and funding, on behalf of India’s RAW, Baloch militants affiliated with the BLA and BRA, in addition to infiltrating and establishing “30 to 40 RAW operatives along the Mak In May 2017, India approached the International Court of Justice (ICJ), asserting that Pakistani authorities were denying India its right of consular access to Jadhav in violation of the Vienna Convention.
The ICJ proceedings began in The Hague on 15 May to review the case. India and Pakistan both sent their legal teams to put forward their arguments, led by Harish Salve and Khawar Qureshi respectively. On 18 May 2017, the International Court of Justice stayed the hanging of Jadhav.
On 22 June 2017, Pakistani sources confirmed that Jadhav had sought clemency from the country’s army chief following his conviction. Pakistan also released a new confessional video of Jadhav, in which he stated that he visited Karachi twice for gathering intelligence on naval facilities. He also admitted to supporting and funding, on behalf of India’s RAW, Baloch militants affiliated with the BLA and BRA, in addition to infiltrating and establishing “30 to 40 RAW operatives along the Makran Coast” for involvement in terrorist activities. Jadhav said that RAW’s activities in Balochistan and Sindh were conducted under the direction of Anil Kumar Dhasmana.
On 25 December, Jadhav’s mother and wife met Jadhav in Islamabad after being allowed permission by Pakistani authorities. India subsequently denounced Pakistan for its handling of the visit of the wife and mother of Jadhav, saying they were harassed and prevented from talking to Jadhav freely.
On 17 July 2019, the ICJ, in its verdict, rejected India’s appeal for Jadhav’s release and directed Pakistan to allow consular access and effectively review the death sentence. The court observed that Pakistan had breached international law by not granting consular access.
Earlier the serving commander in the Indian Navy who was involved in terrorist activities inside Pakistan and was arrested on 3 March 2016 during a counter-intelligence operation in Balochistan the Indian government recognized Jadhav as a former naval officer. Before the arrest of Indian terrorist at the beginning of March 2016 the Pakistan and India had agreed to resume peace talks under the newly-coined phrase of CBD during Swaraj’s visit to Islamabad for the Heart of Asia Conference.
The dialogue was to take on matters related to peace and security, Jammu and Kashmir, Siachen, Sir Creek, Wullar Barrage, Tulbul Navigation Project, economic and commercial cooperation, counter-terrorism, narcotics control and humanitarian issues, people to people exchanges and religious tourism.