Tussle between Army, govt will shape how The Hague verdict plays out in Pakistan

Kulbhushan Jadhav was sized up by the hardened intelligence professionals sitting across the table — and dismissed as a high-risk fantasist, officials present at the meeting recall.

Written by Praveen Swami | Updated: May 19, 2017 9:30 am
Kulbhushan Jadhav, jadhav, Kulbhushan Jadhav death sentence, Kulbhushan Jadhav hearing, ICJ, international court of justice, jadhav hearing, jadhav CJI, hague, pakistan, indian pak relations, indian express news, india news, indian express explained Presiding Judge Ronny Abraham of France (far right) and other judges enter the courtroom at The Hague on Thursday. AP photo

IN the summer of 2010, his hopes of setting up a marine engineering and gypsum-shipping business floundering in the sanctions-hit Iranian port of Chabahar, a former Naval officer walked into the offices of the Research and Analysis Wing off New Delhi’s Lodhi Road, with a startling business proposition. His dhow, the Kaminda, could spy on Pakistan’s naval works around Gwadar, the lean, balding man told officers at RAW’s Pakistan desk; he even suggested it could be used as a platform to ship in covert assault teams, to stage 26/11-type maritime retaliation against jihadists in Karachi.

Kulbhushan Jadhav was sized up by the hardened intelligence professionals sitting across the table — and dismissed as a high-risk fantasist, officials present at the meeting recall. He made repeated attempts to secure a place on RAW’s payroll until 2012, with no success.

Read | Kulbhushan Jadhav’s hanging stayed: Pakistan attacks India, Modi govt says ‘will do everything to save him’

“The fatal conceit of most spies is to believe they are loved,” wrote Ben Macintyre, historian of the great Soviet spy Kim Philby, who betrayed his nation, and his class, for his beliefs. Jadhav, we can be reasonably certain, would have had no such delusions: no Indian spy had ever been acknowledged, let alone bartered, by the country for which he engaged in secret service.

Yet, a man who was, at most, a bit-actor in the India-Pakistan espionage game has become a central figure in one of the most high-stakes battles between the two countries. India has never taken the case of a citizen denied legal rights by Pakistan’s judicial system to the International Court of Justice. Nor has Pakistan ever invested so much capital in the case of one of the many Indian spies it has held.

Behind the measured legal arguments over Jadhav’s fate made in The Hague’s grand halls lies a savage struggle for power — a struggle that will ultimately decide his fate.

***

New Delhi’s exultation about Thursday’s provisional order at The Hague asking Pakistan not to proceed with Jadhav’s execution, and Islamabad’s flat-out rejection of the world court’s jurisdiction in national security matters, tell us what we need to know: this case is about politics, not law. In fact, The Hague has said little that was unexpected. Noting that both India and Pakistan are signatories to the Vienna Convention on Consular Relations, which gives foreign nationals the right to access their diplomatic missions after arrest, and to a protocol giving the world court the right to adjudicate differences in its interpretation, the judgment simply puts the execution on hold until the dispute is resolved.

This is precisely what The Hague did back in 2003, when Mexico approached it on behalf of 54 of its citizens awaiting execution in the United States, all of whom had been denied consular access after their arrest. In February that year, the Court issued provisional measures on behalf of the three prisoners at immediate risk, ordering the United States “to take all measures necessary to ensure that Mr Caesar Roberto Fierro Reyna, Mr Roberto Moreno Ramos and Mr Osvaldo Torres Aguilera are not executed pending final judgment”.

For Pakistan’s Generals, though, this unexceptionable delay poses a problem. Ever since 2008, the Pakistan Army has steadily ratcheted up tensions with India, in an effort to strengthen its own legitimacy, under siege from jihadists in the country’s north-west and Punjab. The notion of a predatory India stoking terrorism in Pakistan was a core part of the military’s propaganda — which has continued apace after the Jadhav case too, with former Tehreek-e-Taliban spokesperson Liaqat Ali claiming the jihadi organisation was in RAW’s pay.

Prime Minister Nawaz Sharif’s outreach to India, starting early in his term, posed a significant challenge to this narrative. His public naming of the Jaish-e-Muhammad for the 2016 Pathankot attack, and his push for the Army to act against jihadists in Punjab, saw the tensions reach breaking point. Notably, Sharif has not spoken publicly on the Jadhav case. His de facto Foreign Minister, Sartaj Aziz, told Pakistan’s Senate that there was insufficient evidence to prepare a dossier on the case for international release — even as a military court was, it is now known, preparing to try the former officer.

There’s little doubt Jadhav lived in the world inhabited by traffickers and spies alike. He was linked, in Chabahar, to the Karachi gangster Uzair Baloch — an Iranian intelligence asset whose eventual arrest seems to have facilitated Jadhav’s downfall.

But while the former Naval officer had long possessed the accoutrements of a spy, his tradecraft was sadly wanting if he was indeed one. His illegally obtained passport, L9630722, identifying him by the pseudonym Hussein Mubarak Patel, bore the address of an apartment owned by his mother, an error not even a semi-competent espionage agency would make.

It seems probable Islamabad would have put what evidence it had in the public domain, were it credible — something it has been quick to do in other cases. The decision to try Jadhav in a military court was likely taken precisely because the evidence was, at best, thin; at worst, imaginary.

New Delhi thinks the The Hague judgment will put the Generals in a spot: they could push forward with the execution, and risk international opprobrium — or back down, angering their carefully-grown constituency of hardline nationalists and Islamists at home. But it isn’t clear the script has to play out that way.

***

Read | Moral victory for India, but his fate remains in the hands of Pakistan’s generals

From the Avena judgment, we have a good idea what to expect from The Hague’s final judgment. In 2004, The Hague ordered the United States to provide “by means of its own choosing, review and reconsideration of the conviction and sentence, so as to allow full weight to be given to the violation of the rights set forth in the Convention”. Put simply, this meant the United States had to grant consular access — but its own judicial system would decide whether or not the denial of access had a material bearing on the sentencing or not.
Islamabad could live with a judgment of this kind, should it choose to — after all, it could grant Jadhav consular access, and then have another military court give him the same sentence again.

Then, the Pakistani appellate judiciary could simply ignore The Hague — something Pakistan’s Foreign Office has already indicated the country will do. The United States Supreme Court, in 2008, held that The Hague’s orders could not prevail over domestic law, clearing the way for the execution of some of the prisoners on whose behalf the Avena case had been fought.

Read | PM Modi lauds Harish Salve’s efforts as ICJ stays Kulbhushan Jadhav’s execution until final verdict

In the final analysis, Kulbhushan Jadhav’s life remains in the hands of the Generals who seized him from Iran. He was, and remains, a pawn in the Army’s battle for supremacy against the political leadership.

New Delhi has won a moral victory — but in geopolitics, moral victories carry no prizes, and moral shame, no sanction.

 

What the court said?

Pakistan shall take all measures at its disposal to ensure that Jadhav is not executed pending the final decision in the proceedings.

On whether the Court had jurisdiction to hear the case

The Court recalled that India had argued that Article I of the Optional Protocol to the Vienna Convention provides that the Court has jurisdiction over “[d]isputes arising out of the interpretation or application of the [Vienna] Convention”. It noted that India and Pakistan differed on the question of India’s consular assistance to Kulbhushan Jadhav under the Vienna Convention. It noted that the acts alleged by India, i.e., the alleged failure by Pakistan to provide the requisite consular notifications with regard to Jadhav’s arrest and detention, as well as the alleged failure to allow communication and provide access to him, appeared to be capable of falling within the scope of the Convention. This, the court found, was sufficient to establish that it had prima facie jurisdiction under Article I of the Optional Protocol, and that the existence of a 2008 bilateral agreement between India and Pakistan on consular relations did not change this conclusion.

On whether rights alleged by India are plausible

The Court observed that rights to consular notification and access between a state and its nationals, as well as the obligations of the detaining state to inform the person concerned without delay of his rights with regard to consular assistance and to allow their exercise, are recognised in Article 36, paragraph 1, of the Vienna Convention, and that India has alleged violations of this provision. Therefore, it appears that the rights alleged by India are plausible.
On whether there is a link between the rights claimed and provisional measures requested.

The Court said it felt the measures requested were aimed at ensuring that the rights contained in Article 36, paragraph 1, of the Vienna Convention, were preserved. Therefore, a link existed between the rights claimed by India and the provisional measures being sought.

On whether there was a risk of irreparable prejudice, and urgency

The Court said that the mere fact that Jadhav was under a death sentence and might, therefore, be executed, was sufficient to demonstrate the existence of a risk of irreparable prejudice to the rights claimed by India. The Court also observed that Pakistan had indicated that Jadhav would probably not be executed before August 2017, which meant that there was a risk that he could be executed at any moment thereafter, before the Court had given its final decision in the case. The Court also noted that Pakistan had given no assurance that Jadhav would not be executed before the final decision. In the circumstances, the Court was satisfied that there was urgency in the case.
The Court concluded by indicating the following measures:

# Pakistan shall take all measures at its disposal to ensure that Jadhav is not executed pending the final decision in the proceedings, and shall inform the Court of all the measures taken in implementation of the present Order.

# That, until the Court has given its final decision, it shall remain seized of the matters which form the subject matter of this Order.

Edited excerpts from ICJ press release

praveen.swami@expressindia.com

For all the latest Explained News, download Indian Express App

  1. R
    rkannan
    May 19, 2017 at 4:07 pm
    The main difference between the American case and this case is that the Americans have a regular judicial system. Jadhav has been tried and convicted in a kangaroo court simply because stan does not have any real evidence against him. The stani army, or one of its outsourced terrorist groups, abducted him and then decided to kill him because admitting the fact that stan had nothing against him, except for his being an Indian citizen, would have been embarassing.
    Reply
    1. J
      JM
      May 19, 2017 at 4:07 pm
      How I wish this swami guy is nabbed by ISI and subjected to same fate as Kulbhushan Jadhav - rest ured there will be no Harish Salve to save his hide. Little chance of that happening though - ISI will treat him as an et, he may even be feted!. When entire nation in one voice is praying to save Mr. Jadhav, this guy is busy cooking up stories and providing fodder to P.A.K.I.S.T.A.N. - look our ertions are even backed by one of your journalist (!!!) so they must be true! How and when this claim was made by 'former RAW operatives' that too for swami's ears only? He can hide behind so called journalistic discretion and refuse to give details, so he will be free to cook up more such stories and earn few more biryani trips from his ISI masters. Rest of so called research and information given in the article is available on the net - so much for investigative journalism! Can India ever be free of such low lives? Most regrettable part is he is being given platform by reputed publicatio
      Reply
      1. I
        Indian
        May 19, 2017 at 12:10 pm
        One of the MAJOR ISSUE of PA-KIS is the INDIAN PASSPORT with FAKE MUSLIM NAME. That could be because Jadav was doing business in Is-lamic Republic of Iran. .... Quran 3.28 -Let not the believers take the disbelievers as Auwliya (comrades) instead of the believers. And whoever does that will never be helped by Allah in any way; except by way of precaution from them in prudence. And Allah warns you against Himself (His Punishment), and to Allah is the final return- ..................... So JADAV must have hoped for some BUSINESS ADVANTAGE being a MUSLIM in IRAN
        Reply
        1. R
          Rohit Chandavarker
          May 19, 2017 at 10:08 am
          Few points to note. One, stan may choose to disregard the ICJ ru under orders from the Army following the precedent set by US in the Mexican case alluded in article. However, stanis ill equipped to handle international opprobrium. If it goes ahead with the execution, India might approach the Security Council & mount enormous pressure where stan might bank on Chinese support. Two, the sentencing coincided with the disappearance of a stani armyman from Indo-Nepal border. Could the two be linked in some way?, & if so, one gets the fee that this might be handled quietly. The Sharif-Bajwa tussle might aggravate resulting in increased terror attacks against India. One has to note that India has not yet acted upon their soldier's beheading. The noose tightening on the Hurriyat is bound to add to Bajwa's woes. A Modi-Sharif meeting in Astana might provide pointers, if held.
          Reply
          1. Z
            Z
            May 19, 2017 at 8:48 am
            Well u mentioned that Nawaz sharif is pushing the army for an operation against the jihadis in punjab is Totally wrong infact punjab govt headed by nawaz's Bro. Is reluctunt to give them powers to do so. And why it took that long to accpet it that Mr. Khadev is an indian citizen?? Cmon every one knows why he was there and what he was upto..
            Reply
            1. M
              Mohan Tvm
              May 19, 2017 at 6:41 am
              China is playing behind the screen with the aim of armtwisting India to join its OBOR project, which is going to be the biggest investment scam ever happened after Federal Reserve. The accounting firm PWC tallied nearly $500 billion in projects that include high-speed railroads, oil and gas pipelines, and refineries, to name a few. China is planning to invest $113 billion. The Chinese LOAN SHARKS are doing the same thing that IMF, WB used to do for African nations. Before WW2, it was Federal Reserve doing Money Laundry in Europe by giving loans and sell arms
              Reply
              1. P
                PAVAN
                May 19, 2017 at 6:41 am
                Writers argument that stan army can still p on another judgement after allowing India consular access umes that stan army is genuine in its aproach to punish the culprits. From what it appears one can only understand that stan army is more interested in implicating India in terrorism charges simply to equate India to stan and thereby get some relief from the world powers that stan is instigating terrorism. However this ICJ case exposes stan army's credentials and it further deteriorates its current weak status in the world.
                Reply
                1. R
                  Romik
                  May 19, 2017 at 6:17 am
                  Pakancer looks best in six pieces; this will bring peace in the region.
                  Reply
                  1. Load More Comments