ICJ Verdict, Kulbhushan Jadhav and Rogue Pakistan
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Issue Net Edition | Date : 23 Jul , 2019

There is no doubt that the ICJ ruling on Kulbhushan Jadhav granting Indian authorities consular access to Jadhav and directing Pakistan to review and reconsider his conviction and sentencing is a diplomatic and legal victory for India. It was a 15-1 verdict with the Chinese Vice President of ICJ, Xue Hanqin and the US judge Joan E Donoghue upholding India’s legal position. The lone dissent was from the Pakistani judge (former Chief justice of Pakistan) Tassaduq Hussain Jilani. Jilani had no alternative least Qamar Javed Bajwa, Pakistani army chief would have had him assassinated. Joan’s yes was expected but Hanqin could have been instructed by Beijing to do so, possibly to sugar up India, as part of strategy to obviate any Indian protest when Beijing announces the next Dalai Lama.

There is euophoria in India over the ICJ verdict. Some media reports emphasise Pakistan has been further isolated, others even going to the extent of saying Jadahav will be home soon after Pakistan is forced to release him. These are absurd hallucinations. Pakistan gives two hoots to this isolation bit given the foreign support it has and with the US getting  ready to embrace it again as a pivot for its South and West Asia policy. Recall Trump’s Chairman JCS nominee, General Mark A Milley, calling Pakistan “a key partner in achieving US interests in South Asia, including developing a political settlement in Afghanistan; defeating Al Qaeda and ISIS-Khorasan; providing logistical access for US forces; and enhancing regional stability”.

To those who hope Jadhav would be home soon, Imran Khan, Pakistan Prime Minster tweeted after the ICJ verdict, “Appreciate ICJ’s decision not to acquit, release & return Commander Kulbhushan Jadhav to India. He is guilty of crimes against the people of Pakistan. Pakistan will proceed further as per law.” True the ICJ has stayed Jadhav’s illegal death sentence by a military court and ordered Pakistan to grant India consular access to him. But for consular access, Pakistan will resort to multiple delay tactics. The consular access would likely be after Jadhav’s is subjected to more physical and psychological torture including threatening painful death for his family members. Also, Pak military and ISI sleuths would likely be present whenever Indian officials are allowed to meet him.

In January 2017, Pakistan had asked India to confirm authenticity of Jadahav’s passport, access to his mobile and bank details and need for Pakistan to interrogate personnel named by Jadhav in his  statement (obviously extracted under torture); his alleged handlers being some R&AW officials and a former naval chief. Two months later, in March 2017, Pakistan linked India’s request for consular access to its response to its request for assistance in investigations. India had responded that consular access was an essential ‘pre-requisite in order to verify the facts and understand the circumstances of his presence in Pakistan’. The ICJ has directed Pakistan to grant consular access to India, but Pakistan can be expected to make the same demands later again.

It is also being said that Pakistan spent Rs 20 cr battling the case in ICJ whereas India’s senior advocate Harish Salve charged only Re 1. Kudos to Salve but the cost to Pakistan matters little to its military. Pakistan’s economy may be in dire straits but definitely not the military. The IMF has given a bailout of $6 billion to Pakistan spread over three years. Concurrently, a World Bank arbitration court has imposed a penalty of $5.8 billion on Pakistan for unlawful denial of a mining lease to the Tethyan Copper Company for the Reko Diq project in 2011, which almost wipes out the IMF bailout. But side by side are news reports that Pakistan is blissfully expanding its nuclear arsenal, and would emerge as the fifth largest nuclear-weapon state by 2025, as per the report ‘Pakistani nuclear forces 2018’ by Hans M Kristensen, Robert S Norris and Julia Diamond, Kristensen being Director of the ‘Nuclear Information Project’ at the Federation of Nuclear Scientists (FAS) in Washington DC.

India contends Jadhav working as a businessman in Iran was abducted and brought to Pakistan but Pakistan maintains Jadhav was apprehended while spying in Balochistan on March 3, 2016. However, Pakistan’s lie was exposed by Mehdi Honardoost, Iranian Ambassador to Pakistan who dismissed Pakistan’s charge that Jadhav was a spy, saying that the claims were “one hundred percent false”. Had Pakistan believed R&AW was operating out of Iran, they should have shared this information with Tehran. But more significant was the expose of Pakistani skullduggery by Gunter Mulack, former German Ambassador to Pakistan, who disclosed he had information that Jadhav had been kidnapped by the Taliban (on franchise by Pakistan) near Chaman, and sold to Pakistan’s ISI. Earlier, Pakistan had alleged that India’s external intelligence agency R&AW had kidnapped Lieutenant Colonel Zahir, who retired from Pakistan army in 2014, from Lumbini in Nepal – a charge denied by India.

Some newspapers have been speculating that Jadhav could be exchanged for Zahir – so called ‘spy for spy’ exchange. But this is nonsensical. If R&AW had abducted Zahir in 2014 for spying, he could always be shown captured within India and why would India keep his interrogation under wraps given propensity of the political dispensation to exploit its propaganda value. Given the machinations of the ISI, Zahir could have changed identity and gone underground in Nepal as coordinator within the larger ISI network engaged in anti-India activities, which is expanding its reach in the Terai region bordering India. So, the speculation about ‘spy for spy’ exchange can only be juice for a Bollywood movie, nothing else.

The question remains what will Pakistan do beyond the ICJ verdict? Consular access to India will perhaps be granted albeit it would likely be in the manner discussed above. Pakistan using a military court is not possible any more. Therefore, trial of Jadhav would be in civil court, with judges specially chosen by the military. That the judiciary in Pakistan must do the military’s bidding is established fact. Any judge crossing the line can simply vanish if he or she does not ‘recuse’ oneself given the ‘sign’. With recent disclosures that  Pakistan Army is actively involved in abducting people from ethnic areas of Balochistan, disappearing, leaving no evidences of arrests, torturing them and doing Organ Harvesting from their bodies and then disposing them off, what stops the military from putting an  obstructionist judge through the same – after all business is business.

Jadhav’s trial in civil court will be long, given its propaganda value to Pakistan. Pakistan has charged Jadhav on two counts: one, espionage, and; second, terrorism related activities. With the ICJ ruling indicting Pakistan for violating the  right of consular access to a foreign national and his state, in keeping with the provisions of the Vienna Convention of Consular Relations that cannot be taken away because of allegations of espionage and involvement in terrorism, Pakistan would give consular access to India. However, after the very first access, Pakistan can be banked upon to make the same demands it did in 2017; India to prove authenticity of Jadahav’s passport, access to Jadhav’s mobile and bank details and Pakistan interrogating personnel named by Jadhav in his statement as handlers – R&AW officials and a former naval chief. The case can be expected to drag on and on for years.

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The views expressed are of the author and do not necessarily represent the opinions or policies of the Indian Defence Review.

About the Author

Lt Gen Prakash Katoch

is a former Lt Gen Special Forces, Indian Army

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