Saad Rasool |
Earlier this week, on 17th of July, 2019, the International Court of Justice at The Hague rendered its judgment in the infamous Kulbhushan Jadhav case. The verdict, broadcasted live throughout India and Pakistan, granted India consular access to Kulbhushan Jadhav while rejecting India’s prayers regarding annulment of Jadhav’s conviction, his release from Pakistani prison, and his repatriation back to India.
Pakistan, as well as India, view this judgment as a victory. In particular, the Indian media – which has no real semblance of sanity or truth in its jingoistic outlook – decided to paint this verdict as a picture of self-aggrandizement, without any justification in the facts or law of the case. To assess the precise legal and factual matrix of Kulbhushan’s case, let us start by first reviewing the factual background as well as relevant provisions of international law.
The procedural relief of consular access, granted more than 3 years after Jadhav’s arrest, will be of no strategic or tactical use to India.
Briefly, Kulbhushan Sudhir Jadhav was arrested by Pakistan’s law enforcement agencies in March 2016. Soon thereafter, in April 2016, the Pakistani authorities informed India about the arrest of Jadhav, and through letters of assistance (LOA) sought India’s assistance in investigating Jadhav’s ‘handlers’ in India. In response, India denied Jadhav’s identity, and requested consular access to the arrested individual.
During custody, Jadhav confessed to being a serving Indian Navy Officer (Navy No. 41558Z), who had also been carrying a fake passport under the name of ‘Hussein Mubarak Patel’, and had been deputed by the ‘Research and Analysis Wing’ of India to carry out terrorism activity throughout Baluchistan and Karachi. Specifically, Jadhav confessed, that he had been deputed by the State of Indian to disrupt CPEC in Pakistan, and to provide militancy support to Baloch separatist.
Simultaneously, Pakistani authorities uncovered that Jadhav had been issued a genuine Indian passport under the name of Hussain Mubarak Patel, which was renewed as late as 2014, and through which Jadhav had travelled in and out of India seventeen times. Also, Pakistani authorities were able to obtain Jadhav’s original salary slips, as a serving Navy officer, up until the time of his arrest in 2016; this also corroborates with an entry in the official ‘Gazette of India’, where Jadhav is listed as an Indian Navy office since 1987.
Faced with such irrefutable evidence and confession by Jadhav, India’s establishment and spin-doctors belatedly concocted an alternative story. They claimed that the arrested individual was not Kulbhushan Jadhav; instead they asserted that he was Hussein Mubarak Patel, who never served in the Indian Navy (an assertion that was withdrawn eleven months later). Instead, India claimed that this alleged Mr. Patel was a private businessman, running his company under the name of ‘Kaminda Trading’ in Chabahar, Iran.
To assess the precise legal and factual matrix of Kulbhushan’s case, let us start by first reviewing the factual background as well as relevant provisions of international law.
Furthermore, India claimed that Pakistan ‘kidnapped’ this individual from Iran, and got his confession through coercion and torture. And that India, as a State, is not interfering in the (dying) militancy across Baluchistan and Karachi. This unabashed denial from India, along with refusal to cooperate in the on-going investigation, left Pakistani authorities with no option but to try Jadhav in accordance with domestic law. To this end, Jadhav was provided with a defence lawyer, tried through Court Martial in September 2016, and awarded death penalty in early 2017.
He preferred an appeal against the sentence, which was denied in June 2017, when his sentence for execution was finally confirmed. In the interregnum (allegedly pursuant to a shady deal reached between the then Prime Minister Nawaz Sharif and his friend Sajjan Jandalani, in the hill-station of Murree), India decided to approach the ICJ regarding consular access to Jadhav. Amidst tremendous speculations and intrigue, Nawaz Sharif’s government neither prepared for the case, nor appointed a Pakistani Judge to participate in the ICJ proceedings.
As a result, on 8th May 2017, the ICJ decided to entertain India’s petition, and granted interim relief against the execution of Kulbhushan Jadhav. After Nawaz Sharif was removed from office, in September 2017 written memorials were presented by India and Pakistan, and arguments were heard by the ICJ in February 2019. Interestingly, during arguments before the ICJ, India’s counsel Harish Salve placed reliance on statements made by Nawaz Sharif himself, so as to establish that Pakistan sponsors terrorism across its borders.
Be that as it may, the precise legal contentions and prayers made by India related to enforcement of Vienna Convention on Consular Relations, 1963, and International Covenant on Civil and Political Rights, 1976.
Faced with such irrefutable evidence and confession by Jadhav, India’s establishment and spin-doctors belatedly concocted an alternative story.
Specifically, India’s written pleadings and oral arguments prayed for two kinds of relief: 1) procedural relief, that India be granted consular access to their citizen prior to any sentencing; and 2) substantive relief, that Jadhav’s conviction be set aside, he be released, and that he be repatriated to India. For this purpose, India’s pleadings as well as arguments referred to Jadhav through his concocted name, Hussein Mubarak Patel, and insisted that there was no person by the name of Kulbhushan Jadhav. India argued that their ‘innocent citizen’, Mr. Patel, was being wrongfully held and sentenced by Pakistan.
In response, Pakistan presented damning evidence of State-sponsored terrorism by India. Relying on Jadhav’s confession, Pakistan also presented a sealed list of thirteen high level Indian government officials, including Mr. Ajit Doval (National Security Advisor of India), who had been directly issuing instructions to Jadhav. Pakistan proved his true identity and service record through through multiple passports and other incontrovertible documents of the Indian government.
After hearing the arguments, the ICJ reserved its judgment which was announced earlier this week. Specifically, ICJ granted India its procedural prayer (of allowing consular access to Jadhav), by holding that Article 36 of Vienna Convention, relating to consular access, includes individuals who are charged with espionage. Breaking ranks with precedents from across the world, as well as customary international law, ICJ decided that the provisions relating to consular access, under the Vienna Convention, make no specific exception for espionage and therefore must be applied to all foreign nationals captured by the participating States, regardless of any bilateral treaty.
Away from procedural relief, the substantive prayer of India (seeking acquittal, release, and repatriation of Jadhav) was rejected by the ICJ in its entirety. The ICJ neither set aside Jadhav’s conviction, nor ordered his release, nor granted his repatriation to India. It declared that Jadhav will be allowed to appeal his conviction, under the Pakistani law – a right that could be exercised by Jadhav, under the Constitution of Pakistan, even prior to the ICJ judgment.
Nawaz Sharif was removed from office, in September 2017 written memorials were presented by India and Pakistan, and arguments were heard by the ICJ in February 2019.
Finally, the ICJ urged Pakistan to ‘review and reconsider’ the sentence of Jadhav, in accordance with domestic law and the evidence available on the record. Put another way, Jadhav will be allowed to challenge his conviction, before the superior Courts of Pakistan, through a counsel of choice, after which he may still be hanged, in accordance with our domestic law.
Most importantly, no part of the ICJ’s judgement accepts the concocted Indian story about Hussein Mubarak Patel, and his business of Kaminda Trading. The entire judgment – all 42 pages of it – refers to him as ‘Kulbhshan Jadhav’. The judgment is titled ‘Jadhav Case’. The judgment reasserts that he was arrested in Baluchistan (as opposed to being kidnapped from Iran, per India’s allegations).
The Judges referred to him as Kulbhushan Jadhav, a serving Indian Navy officer working for the Indian intelligence agency. As such, the crux of this judgment entirely rejects India’s fabrication in Jadhav’s case, and obliterates India’s plausible deniability about sponsoring terrorism inside Pakistan. And this, in many ways, is the real take-away from the Kulbhushan Jadhav case. That India’s facade of innocence, the carefully constructed veneer of being a victim to terrorism, as opposed to sponsoring terrorism in Pakistan, has been decisively broken through Jadhav proceedings.
The procedural relief of consular access, granted more than 3 years after Jadhav’s arrest, will be of no strategic or tactical use to India. Whatever information Jadhav had, has already been extracted by Pakistan. His facilitators and subs, inside Pakistan, have all been neutralized. At this belated stage, there is no practical benefit that India can derive from getting access to Jadhav.
And this consular access, or the resulting defence of Jadhav in our constitutional courts, is not likely to yield his acquittal or release. Jadhav is in Pakistan. He will be tried in Pakistani courts, in accordance with Pakistani laws. His intelligence will remain with Pakistan. And he will, in all eventuality, be executed in Pakistan. And in the meantime, the terror-sponsoring face of India, through Kulbhushan Jadhav (not Hussein Mubarak Patel), has become undeniable throughout the international diaspora.
Saad Rasool is a lawyer based in Lahore. He has an LL.M. in Constitutional Law from Harvard Law School. He can be reached at firstname.lastname@example.org, or Twitter: @Ch_SaadRasool. This article was originally appeared at The Nation and has been republished with author’s permission. The Views expressed in this article are author’s own and do not necessarily reflect the editorial policy of Global Village Space.