Jadhav Case: 5 lies spread by irresponsible media

This is a Fact Sheet – released by McNair Chambers – to address certain misrepresentations, false statements and allegations made mainly in some sections of the Indian media following the provisional measures order granted by the ICJ on 18 May 2017. Dangerously, large parts of the Pakistani media, so-called experts and some politicians have not checked the facts before making or repeating false and inaccurate statements.

Answers are given below each baseless accusation.

1. The legal team was not competent/lacked experience

• So-called experts and commentators apparently stated that Pakistan’s legal arguments had no weight and that “we need a dedicated team for Pakistan, loyal to the country”.
• The International Court’s stated clearly that its decision on provisional measures was NOT concerned with jurisdiction/merits. The Court wished to ensure that the full hearing could be effective. If Commander Jadhav was executed before a full hearing that would mean a full hearing might be pointless. This is nothing unusual.
• Whatever happens the ICJ CANNOT order Commander Jadhav’s release or acquittal. The case is about whether Commander Jadhav is entitled to consular access because of a 1963 Treaty. It is NOT about whether the ICJ can act as a Court of Appeal from Pakistani legal proceedings. That is why Khawar Qureshi QC clearly and correctly told the Court that India is wasting time – because it can never obtain from the Court what it is seeking. He also told the Court that the case is about India using the media – this is now clear from the lies being circulated to create a false impression about the case.
• Khawar Qureshi QC was Called to the English Bar in 1990 and was appointed Queen’s Counsel in 2006. He is a Deputy High Court Judge in England, has taught law at Cambridge University (from where he obtained a 1^st class degree), and International Law at Kings College and LSE London. He was one of 20 “A” Panel Treasury Counsel (out of 12,000 Barristers) appointed to advise and represent the UK Government before becoming one of the youngest QC’s in 2006. He is consistently rated by the Legal Directories as one of the UK’s top International lawyers. See his full CV on serlecourt.co.uk or www.mcnairchambers.com. He was the youngest advocate to appear in the ICJ in 1993 in the Genocide case (for Bosnia against Serbia). A summary of his CV is attached.
• Khawar Qureshi QC has undertaken hundreds of cases before all levels of the English courts, as well as international arbitral tribunals and the International Court of Justice. He has acted or advised on matters involving around 80 different jurisdictions – as an English Barrister he is bound to represent any client without discrimination. He has acted for the US Govt, Russian Govt, Italian authorities, Kazakhstan Govt and many others. He is the author of many articles and legal texts on Public International Law and one of the most experienced advocates of the English Bar.
• Khawar Qureshi QC successfully represented Pakistan last year in the very complex Hyderabad Funds case where India (represented by 4 Counsel including Harish Salve) lost its strike out/summary judgment application. India said Pakistan’s case was “hopeless” – they lost their application – and the Indian media makes no mention of this when spreading its lies.

2. Indian Twitter comment regarding fees

• Media have reported Khawar Qureshi QC billed ‘almost GBP500,000’ or, in some cases, GBP720,000 – these were dangerously repeating and accepting a twitter comment made by an Indian – with no foundation at all.
• His heavily discounted fees were not even 10% of the GBP500,000 figure – which is less than £50,000.
• Khawar Qureshi QC covered the costs of his juniors’ fees and even cancelled other professional commitments for another Government in order to assist Pakistan. It is malicious nonsense to continue to repeat these lies.

3. Lost the Jadhav Case

• This shows a complete lack of understanding. The Court stated clearly that its decision on provisional measures was not concerned with jurisdiction/merits. The Court wished to ensure that the full hearing could be effective. If Commander Jadhav was executed before a full hearing that would mean a full hearing might be pointless. This is nothing unusual.
• A full hearing will take place after the Court sets down a timetable. We have given the Court the headlines of the key arguments on merits and jurisdiction. It has not ruled on ANY of these arguments yet. Because of a Treaty from 1963 which at least arguably gives jurisdiction the Court could not say it definitely did not have jurisdiction. We will raise all such arguments at the full hearing.

• The Jadhav case concerns whether he is entitled to consular access – this has been denied by Pakistan. Whatever happens the ICJ CANNOT order his release or acquittal. In 3 previous cases involving USA this is what was requested from the Court but the Court made it clear it does not have the power to make such orders.

• People need to understand India did not win anything through Provisional Measures. Commander Jadhav should remain alive until the full hearing but that would also happen pending determination if he made an application for clemency or writ petition to the High Court in Pakistan.

Alleged errors in handling of the case.

• should have withdrawn 29 March 2017 declaration/reservation
• This would not have led to a different result on the Court’s decision to grant provisional measures.
• should have mentioned Kashmir
• So-called experts are quoted as saying that Pakistan should have taken human rights violations in Kashmir to the ICJ.
• The Kashmir issue (whilst very important) is not legally connected to the facts and legal issues in the Jadhav Case.
• should not have attended the ICJ hearing on provisional measures on 15 May 2017
• It is a matter of courtesy to appear before the Court as a member of the United Nations and the international legal community. Even if you believe a Court has no jurisdiction and the other side is wrong you must explain why.
• Failure to attend would not have led to a different result.
• ill-prepared
• So called experts are quoted as stating that the legal team was ill-prepared because Pakistan did not use the full time allotted by the ICJ to make oral submissions.
• The amount of time taken to make submissions is irrelevant to their correctness or persuasiveness. A good advocate uses less not more time.
• None of the so-called experts whose comments we have seen has any expertise or experience in International Law cases – and certainly no comparison with that of Khawar Qureshi QC (see his CV – attached).
• failed to appoint a judge ad hoc
• A so-called expert quoted as saying that Khawar Qureshi QC (who was appointed 48 hours before the hearing and travelled first to Pakistan and then to The Hague in that period) made a mistake by not appointing a judge ad hoc.
• The Court’s provisional measures order was unanimous (11-0) and therefore a judge ad hoc would have made no difference to the outcome.
• Contrary to some reports suggesting that India appointed a judge ad hoc (and therefore was more organised than Pakistan), India already has a permanent judge on the ICJ bench (Judge Bhandari).
• failed to argue the 2008 Agreement
• A so-called expert was quoted as saying that Khawar Qureshi QC made a mistake by not responding to the argument of India’s lawyers regarding the 2008 Agreement.
• In fact Khawar Qureshi QC read out the entire 2008 Agreement from start to finish in his oral submissions and explained why (contrary to India’s submissions) the 2008 Agreement was relevant, that it amplified or supplemented the Vienna Convention and that it made expressly clear that national security matters were to be decided by each country on the merits.

4. Djibouti/BSB

• Some media reports have inaccurately tried to smear Khawar Qureshi QC by associating him with Peter Gray’s misleading of the English Court in the Djibouti v Boreh
• Following a detailed 83-page judgment in March 2015 (See Djibouti v. Boreh), Mr Justice Flaux found that Peter Gray had misled the Court and made it clear that Khawar Qureshi QC had not done so. The Judge said he found the attempt to blame Khawar Qureshi QC “unedifying”. Nevertheless and even though 3 QC’s had advised it was not required, Khawar Qureshi QC asked the Bar Standard Board to also carry out a full investigation of Mr. Peter Gray’s allegations in May 2015.
• All allegations against Khawar Qureshi QC were dismissed by the Bar Standards Board in July 2016.

5. Khawar Qureshi QC lost the India/Dabhol powerplant case/Air-India case.

• In 1998 Air-India lost an arbitration and was exposed to a claim for nearly USD100 million. Senior English lawyers were sacked. With Khawar Qureshi QC’s involvement this was reduced to below USD30 million.
• In what was the largest ever claim brought against a State in 2004 (by Enron, General Electric and Bechtel for over USD7 billion), India had been advised to settle this case for over $1 billion dollars by its QC and lawyers – they were removed.
•  Following Khawar Qureshi QC’s involvement, the case was settled for under $200 million.