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.
“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.
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.
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