JADHAV’S CONVICTION AND THE ICJ CASE

Spearhead Analysis – 19.05.2017

By ShahBano Khan
Research Analyst, Spearhead Research

South Asian neighbors Pakistan and India have fought a total of four wars since their independence in 1947. What started off as communal inconsistencies in the larger federation of British India has now morphed into two sovereign states fighting over bilateral, regional, and then global assertiveness. While history tells us this South Asian conflict is much more nuanced than what international media and new age strategic shifts would have us belief, but relations have always been not only rocky but also strained. In light of a possible shift in Pakistan’s fortunes through CPEC’s mega investment, India’s position has become even more antagonistic.

Last year, an Indian spy was arrested inside Balochistan in Manshkel near the border region of Chaman, having made illegal entry into Pakistan via Iran. Kulbushan Jhadav (alias Hussein Mubarak Patel), a serving officer in the Indian Navy and also a member of India’s external intelligence agency RAW, was arrested during a counterintelligence raid conducted by law enforcing agencies and security forces. During his investigation and a confession video that was aired extensively in the Pakistani media and beyond, he revealed that naval combat training was being conferred to Baloch separatists, in an attempt to target the ports of Gwadar and Karachi and destabilize the economic and social life of the country. In addition, he also disclosed the presence of other Indian intelligence operatives in the southern metropolis. Jadhav established a network of operatives, provided funds, and arranged to smuggle people in and out of the country for the purpose of terrorism.

While the Indian Ministry of External Affairs stated that although Jhadav was an indeed an Indian national and an Indian Navy officer, he retired prematurely and has no link with the government of India since his retirement. According to stories that were concocted by the Indian media, Jhadav owned a cargo business in Iran and was abducted by the Pakistani forces when he strayed into their territory. He was found with two passports and maps of the region.

India had since demanded consular access to him which Pakistan categorically rejected. Pakistan’s diplomat to India said that consular access wasn’t automatic during cases related to security, explaining Jadhav had been travelling “under a fake name with an original Indian passport” since 2003.

The Pakistani establishment has long blamed India for conducting and funding covert subversive activities inside Pakistan, but this is probably one of the few times a high level officer spy of the armed forces of India has been caught in Pakistan. Not only has this dampened diplomatic relationship between the two countries but has also shed light on attempts made by foreign elements to destabilize Pakistan internally.

After a field military court in Pakistan sentenced to Jhadav to death for espionage and sabotage, the Indian media started giving the issue widespread attention at home, triggering mass public sentiment and support. So much so that earlier this month India approached the International Court of Justice in Hague and asked them to intervene in the matter of the detention and trial of the Indian spy sentenced to death by the military court in Pakistan.

India accused Pakistan of violating the Vienne Convention on Consular Relations and sought a stay on Jadhav’s death sentence. It claimed that it was not informed of Jadhav’s detention until long after his arrest. The court in Hague heard arguments presented by both sides. While Pakistan tried to suggest that it wasn’t going to short circuit the process and India was only trying to use the court as a political theatre. New Delhi stressed that given how Pakistan had handled the entire case, there was an “immediate threat” to Mr Jadhav’s life. Yet yesterday the ICJ announced its ruling on an urgent bid by India to stop Pakistan from executing a death sentence.

The legal issues stem from the fact that there was a 2008 bilateral agreement on consular access. An agreement that India sought not to rely on at the Hague on Monday and merely restricted itself to the Vienna Convention on Consular Relations. In doing so, India made the point that the agreement had not been registered with the United Nations and therefore, India would have to restrict the argument to the Vienna Convention on Consular Relations alone.

This perhaps may be the first instance of a State disavowing a bilateral treaty, in accordance with which it has been acting, in the midst of a court proceeding.

While the chronology and order of the case are as stated, the issue has become politicized. The verdict is being seen as a ‘victory’ for India in terms of political point scored back home. Not only that, the possibility that the case will be sustained till the Security Council has given India a position of strength through which to malign not only the Pakistani state’s handling of the case but also its military courts that dispensed the death sentence.

At a time when Pakistan suffers from serious problems of terrorism and security, military courts were established to ease the burden of the civilian justice system. But especially in matters of espionage and national security, the military courts have taken precedence as the need of the hour. But Jhadav’s sentence, based on his own confession, is being viewed by the Indian media as ‘unfair’ as the proceedings of the trial were not made public.

Moreover, the ICJ’s stay on Jhadav’s execution is being called ‘one sided’ as India has not specifically asked for consular access that would enable the caught spy to help find a lawyer to fight his appeal and also help him liaison with family back home. The aim of the Vienna Convention is to facilitate those very rights. Instead India has questioned the legitimacy of the arrest and the validity of the death sentence itself.

However following ICJ’s verdict the Foreign Office of Pakistan has reiterated that the ICJ has no jurisdiction to hear Jadhav’s case and that the international court does not reserve any jurisdiction to hear a case that involves national security of Pakistan.

The ICJ is a diplomatic body and it will be reluctant to meddle in state affairs unless it is absolutely required, another indication that India’s real objective is to create commotion around the sensitive case and divert attention from its own barbaric policies and poor record of human rights in Indian Occupied Kashmir.

More importantly, with CPEC gaining momentum, India has employed a multi-pronged approach to question Pakistan’s standing at international forums while at the same time corner it from its immediate neighbors. Border skirmishes have become a norm on the country’s Western and Eastern borders, with Afghanistan and India constantly making cross border violations.

India’s position is clear, what has to be decided now is Pakistan’s response. While Pakistan’s argument at the ICJ was clear, simple, and eloquent, what has become essential is how it will respond at the international platform of ICJ, and how it will handle the affair in the domestic political landscape. The political establishment has long asked for transparency in matters of terrorism, national security, and foreign diplomatic relations but because of the prolonged war the country is involved in, the thin line between what is national security and the right to information is blurred.

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