“THE fatal conceit of most spies is to believe they are loved”, wrote historian Ben Macintyre, reflecting on the great Soviet spy Kim Philby “in a relationship between equals, and not merely manipulated”.
In the decades to come, should a historian discover in an archive that Kulbhushan Sudhir Jadhav was indeed an Indian spy, she will overturn one of the great axioms of espionage. Few governments, Indian or otherwise, have fought as hard for the lives of their citizens as New Delhi has done for Jadhav—those in the secret service are, by custom, abandoned to the torturer’s custody.
New Delhi will, with reason, see Thursday’s International Court of Justice (ICJ) judgment in the Jadhav case as considerably more than a legal verdict. The actual gains from the judgment are modest: The Hague, in line with precedent, has called on Pakistan not to execute Jadhav until it hears both countries’ arguments on whether or not he should be granted access to Indian diplomats, a right under the Vienna Convention on Consular Relations.
For Pakistan’s generals, though, this judgment poses a stern test. Having set up the Jadhav prosecution as part of a high-decibel campaign to wreck Prime Minister Nawaz Sharif’s efforts to seek rapprochement with India, they will now have to make a hard choice: they could either push forward with the execution and risk international opprobrium or back down, angering their own constituency of hard line nationalists and Islamists at home.
Legal judgments by The Hague have long been defied by major powers: the United States has flouted orders on everything from proxy wars to the Vienna Convention. Beijing only recently defied binding international tribunal orders on the South China Sea.
To get a sense of what choices Islamabad faces, it’s important to get a sense of what the The Hague has actually said. Its orders build on its 2003 orders in the Avena case and Mexico’s intervention on behalf of 54 of its citizens awaiting execution in the United States. In that case, all 54 death-row prisoners had been denied consular access under the Vienna Convention, just as Jadhav was.
In February, 2003, the Court ordered provisional measures in the case of three of the 54 prisoners at imminent risk of execution, asking 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 in these proceedings”.
This is exactly what The Hague has done in the Jadhav case, too. It rejected Pakistan’s claim that the Vienna Conventions do not apply to alleged spies and terrorists—there are no such exceptions in the treaties. It also shot down Pakistan’s contention that a 2008 agreement between the two countries overrides the Conventions.
In coming months, these issues will be argued by lawyers for the two countries at The Hague.
From the Avena judgment, we have a good idea what to expect from those hearings. 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 uphold the validity of his sentence.
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. It is conceivable that Pakistan’s Supreme Court could also go down the same road.
In the final analysis, Kulbhushan Jadhav’s life remains in the hands of Pakistan’s generals who seized him from Iran, victories in courtrooms notwithstanding. India has had the satisfaction of a moral victory at The Hague, but in geopolitics, moral victories are hard to distinguish from no victory at all.