Published May 18, 2017
SOURCE: DAWN
The International Court of Justice has issued an order staying the execution of Indian spy Kulbushan Jadhav by Pakistan, a decision which has caused shock and disappointment in Pakistan.
Although Pakistani analysts were earlier confident that the ICJ does not have jurisdiction to stay Jadhav’s execution, today observers have said the jurisdiction argument was “weak” and “damaging”.
‘Pakistan made a mistake’
Justice (r) Shaiq Usmani told DawnNews the decision is alarming because “ICJ does not have jurisdiction”.
“It’s Pakistan’s mistake to have appeared there. They shouldn’t have attended. They have shot themselves in the foot.”
The retired justice says the case will continue in Pakistan. “Until the ICJ gives it verdict, the case will go on in Pakistan. But he cannot be executed until the stay order is there. The proceedings will continue here.”
He added that the 40 days of appeal as permitted by the Field General Court Martial which convicted and sentenced the Indian spy.
“I think 40 days are over and the time to appeal is over. But if they want they can accept the time. The FGCM court can extend the time if they want.”
‘Pakistan was grossly unprepared’
London-based Barrister Rashid Aslam says Pakistan was ill-prepared and did not utilise the 90 minutes it had to make its argument.
“Pakistan had 90 minutes of argument time but we wasted 40 minutes,” said Aslam. He added: “I was surprised why we finished our arguments in such little time. I think Khawar Qureshi didn’t consume all the time that was afforeded to him.”
“It is very clear, article 5 B of the Vienna Convention, that if a civilian is caught he is subject to human rights law. But if it is a spy, then human rights are forfieted. So I don’t think we presented the case quite well.”
He added: “Pakistan had the right to set up a judge there but we didn’t do that. I think Pakistan was grossly unprepared. It might be that we didn’t have enough time…”
‘Pakistan has a moral responsibility’
Analyst Zahid Hussain said the ICJ is not binding legally but morally.
“Usually, verdicts of ICJ are not binding but according to international laws, possess moral responsibility.”
He added that it cannot be said that the verdict is in India’s favour but it can be said that the court has just ordered to overturn the implementation of execution, and has refused Pakistan’s challenge of its own jurisdiction.
‘Our lawyers were inexperienced’
Former Attorney General Irfan Qadir said he is shocked by the decision.
“I think this decision is a violation of the principle of natural justice. I am shocked as to why Pakistan went there and presented their position and gave it in such a rush.”
“The lawyers handling these matters had no experience. The arguments had no weight. They should have been presented in a rational manner.”
He added that the proceedings are yet to take place but that the legal team needs to be better prepared “with an experienced legal team”.
“We need a dedicated team for Pakistan, loyal to the country. Pakistan’s jurisprudence has been ruined because of this.”
‘Pakistan’s case was weak’
Senior PPP leader Sherry Rehman said, “We based our case on jurisdiction and it proved weak. More arguments should have been made regarding espionage.”
‘Consular access is the main issue’
Lawyer Feisal Naqvi said the ultimate question is about consular access.
“The question is not whether he should be hung the questions are different. The question is; whether he can get consular access,” Naqvi said.
“It is normal that ICJ has said that we feel we might have jurisdiciton, so they have asked for a stay on execution. It is their impression that they have jurisdiction. They aren’t final about it. It happens quite often that the court first orders a stay, then examines the situation more closely before giving a verdict.”
‘Why did Pakistan agree to the Jadhav case?’
Barrister Dr Farogh A. Nasim said Pakistan should not have conceded to ICJ’s jurisdiction.
“India did not give consent to the Kashmir issue going to ICJ, then why did Pakistan give consent to the Jadhav case?”
He said that 17 years ago when Pakistan filed a case, ICJ said we do not have jurisdiction. “Today, ICJ did not accept that decision.”
There is a silver lining
According to international law expert, Taimur Malik, this is a significant decision and should not be seen as being completely adverse to Pakistan’s interests.
“The reasoning given by the ICJ keeps the doors open for Pakistan to take India to the ICJ on matters emanating from other international treaties,” he said.
“This is important also from the perspective of the on-going issues regarding the Indus Water Treaty. Moreover, the ICJ has not given a final decision against Pakistan and it is now up to Pakistan to prepare well for the next round. Furthermore, Pakistan should now avail its right to appoint an ad hoc judge of the ICJ for this specific case.”
https://www.dawn.com/news/1333924
