The road ahead is a steep one, albeit with precedents favouring India. While India can hope for the best, one should be prepared for the Pakistani army to stage a medical episode or encounter to eliminate Jadhav, just as prisoner Sarabjit Singh was killed in a supposed prison altercation. That makes it all the more important to keep lines between political leaders on both sides open
l’affaire Kulbhushan Jadhav reached fever pitch in India once Sartaj Aziz, foreign policy adviser to Pakistan’s prime minister, announced on April 14 that the ex-naval officer, held on charges of espionage and terrorism, was found guilty and sentenced to death by a military court after summary trial. Jadhav had been detained since March 3, 2016, and India had unsuccessfully and repeatedly been seeking access to him since Pakistan informed India about it on March 25, 2016.
While India continued with diplomatic protests and approaches, time was running out for Jadhav. India had, meanwhile, learnt that Jadhav had been living in Iran and operating trawlers out of the Iranian port Chabahar for some years after his retirement from Indian Navy. Indian intelligence agencies surmised that he had probably been abducted from within Iran by state or non-state actors acting on behalf of Pakistani security agencies. The border between Iran and Pakistan’s Baluchistan province is porous. In fact, Sunni Baluchis, at war with both Governments, have been known to operate on both sides of the border with impunity.
India would have approached the Iranian Government for information that they may have had about the abduction. However, during the earlier phase of Jadhav’s arrest, Iran-Pakistan relations had been warming, with shared interest in monitoring the secessionist Baluchis. Iran, preoccupied with its involvement with the imbroglio in Syria and the battle against ISIS, was also hedging its bets in Afghanistan by opening channels to Pakistan’s ally and its old nemesis, the Taliban.
There were even reports of Iran considering joining the China-Pakistan Economic Corridor (CPEC) for exporting gas to Pakistan and China. This was negating the logic of Indian assistance to develop Chabahar port, which India saw as a counter to Chinese development of Gwadar. Thus, there was little information emerging from Iran in the public domain though possibly privately some details may have been shared.
Meanwhile, US President Donald Trump assumed office earlier this year but was so distracted by his other priorities that he could hardly be of any help to put pressure on Pakistan. He was furthermore wrestling allegations enveloping his administration about his aides’ links to Russia during and after the presidential election. He was, however, bringing to office clear thoughts about containing Iran and reverting to old US reliance on Sunni powers led by Saudi Arabia. His first visit abroad to Riyadh on May 19 for a series of summits with major Sunni powers and his direct attack on Iran, with Pakistan’s prime minister in the gathering, signalled Iran that things regressed to the past. That is why it was only a fortnight ago that Iran formally asked for access to Jadhav. This happened as tension on Iran-Pakistan border mounted with Iranian allegations that Pakistan was not curbing Sunni militants in the area targeting Iran.
This geo-political churning would help with the Jadhav case in the future but meanwhile India needed other means to stay his execution. The Government chose, after due deliberation, to use the International Court of Justice (ICJ). This went against conventional Indian wisdom to avoid international institutions, having suffered once at the hands of UN Security Council in 1948 when India’s complaint against the invaders from Pakistan was turned into a bilateral dispute, granting Pakistan a locus standi in the matter as a disputant. Indian line of legal attack needs closer examination to understand how the procedures of the ICJ worked to India’s advantage.
The ICJ is the judicial organ of the UN and its composition is a mirror image of the UN Security Council. There are 15 judges, including five from the permanent members of UNSC. The other 10 are elected on nine-year terms by the UN. However, the jurisdiction of the court can be one of three modes: Compulsory or by special agreement or finally treaty based. The first is as per declarations that the signatories to the ICJ statute may make under A.36 (2). Not all members have done so and even those so declaring attach all manner of conditions.
The Indian declaration made on September 18, 1974, enumerates its exceptions to compulsory jurisdiction. These, inter alia, are disputes involving Commonwealth countries, issues of domestic jurisdiction etc or even, as per para 11, “disputes prior to the date of declaration”. When India and Pakistan had last faced-off at the ICJ in 1999 over the latter’s complaint about India allegedly shooting down their naval patrol plane, India had successfully used the dispute being between two Commonwealth countries exception to evade the ICJ jurisdiction.
Interestingly, Pakistan — probably anticipating an Indian approach to the ICJ — modified its exceptions to compulsory jurisdiction on March 29, 2017. Is it a coincidence that the Jadhav trial was accelerated only after thatIJ The new exception introduced in para (e) reads: “All matters related to the national security of the Islamic Republic of Pakistan.”
Pakistan, however, left a door open as India approached the ICJ not under the ICJ statute for settlement of a bilateral dispute, to which the exceptions to compulsory jurisdiction would have applied, but using the treaty based route. The ICJ lists many bilateral and multilateral treaties and agreements regarding the interpretation of which the compulsory jurisdiction of the ICJ is accepted by most countries. This is logical as conventions signed and ratified by over two-thirds the members of the UN, and based on customary law, tantamount to universally accepted laws. They, thus, can hardly be breached simply because any single country so desires.
The two Vienna conventions covering Diplomatic Relations and Consular Relations, of 1960 and 1963 respectively, have that sanctity. Additionally both India and Pakistan have accepted the Optional Protocol of the Consular Convention that grants the ICJ automatic jurisdiction. It seems Pakistan did not modify this commitment; the US did so in 2005 after repeatedly losing cases filed under the Consular Convention for denying access to prisoners in the US.
Therefore, the ICJ when ruling on the Indian application that Pakistan had breached the rights of both Jadhav — in not letting him have access to the Indian High Commission, and India by denying it access to its citizen — invoked treaty based jurisdiction, to which the “national security” principle was inapplicable. The issue in hand was not a bilateral India-Pakistan dispute but pertained to the interpretation and application of a convention. The ICJ’s provisional measures order thus enjoins Pakistan to take all appropriate measures to ensure that Jadhav is not executed and court apprised of steps taken in that regard.
The case law supports the Indian contention that any trial conducted by a military court without the accused having access to the advice and help of his country’s mission, who would have ensured proper legal aid, was ab initio untenable. In three cases, the ICJ ruled against the US, the only difference being that the accused in those instances were criminals arraigned for capital offences, while Pakistan alleges Jadhav is a spy-cum-terror mastermind who undermined Pakistani national security.
The last of the three cases, popularly known as Avena case, at the ICJ was filed by Mexico on behalf of 54 accused in the US jails sentenced for capital crimes. In a judgement delivered on March 31, 2004, the ICJ held the US as having breached its obligations under A. 36(1)(b) and asked for it “by a means of its choosing to review and reconsider” the conviction and sentence. India is seeking a similar order from the court.
Pakistan made two substantive points at the initial hearing. One, it claimed that in view of its amended provisos to the compulsory jurisdiction of the Consular Convention, matters pertaining to its national security could not be raised before the court. The court ruled that this could not be decided at the initial stage as under the Optional Protocol to the convention, jurisdiction was available. Two, Pakistan argued that the accused being a spy and terrorist, the access was not mandatory. This was shot down by the court arguing that there is no such restriction in the convention.
It is likely that Pakistan will belabour the second point when substantive arguments are made. But the court would likely go by the intent of the convention. By Pakistani reasoning, any Indian apprehended by it by any means can be dubbed a saboteur and spy and locked away incommunicado till his trial and sentencing by a kangaroo court.
The case that would be appropriate to bring to the ICJ’s notice would be of the US Supreme Court on the constitutionality of detentions of enemy combatants at Guantanamo Bay military facility, on lease from Cuba since 1903, without recourse to judicial review. In a habeas corpus writ Boumediene v Bush, to which was clubbed Al Odah v US, the court in a 5-4 verdict held that the writ lay and to that effect the Military Commissions Act of 2006 was unconstitutional. Justice Anthony Kennedy ruled that: “The Nation’s basic charter cannot be contracted away like this... to hold that the political branches may switch the Constitution on and off at will would lead to a regime in which they, not this court, will say ‘what the law is’”.
The initial order of the ICJ in the Jadhav case has caused uproar in Pakistan over mishandling by their Government. While intemperate voices urging Pakistan to ignore the ruling on “provisional measures” have died down, Sartaj Aziz has announced that Pakistan would seek a review of the order. It seems that is more for domestic consumption than based on procedures of the ICJ. At best Pakistan can seek expedited hearing, but the urgency would be difficult to substantiate as the accused is in their custody and delay in execution is hardly prejudicing Pakistani security. In any case, India would not oppose speedy hearing.
The Indian problem will be two-fold. There is so far no explanation from India why Commander Jadhav has in his possession an Indian passport with the name Hussein Mubarak Patel. The address also seems to be that of his mother’s flat. Did he convert to Islam, which is not illegal, but there is a whole procedure of publishing in a newspaper etc. Did he do that or was he like some Indians, particularly in the Gulf, merrily holding passports as documents of convenienceIJ Pakistan did and will even more forcefully make this point that Indian silence on this point raises questions about Jadhav’s bona fides.
Second, Pakistan would raise again a letter Rogatory handed by them to India on January 23 this year seeking access to and phone records of a dozen individuals, some no doubt at the higher echelons of the NDA Government, as condition precedent to giving access to Jadhav. It is likely that the ICJ will not allow such conditionality to affect the right of access under the Consular Convention. It, however, enables Pakistan to throw mud on the Indian ruling dispensation to paint it as an abettor of terror. That, after all, has been the Pakistani game plan since the 26/11 attack, which combined with David Headley’s testimony, showed clearly the hand of Pakistani state in abetting terror and sheltering its masterminds.
In any case, the best case scenario is that Pakistani army sensing legal defeat may allow the civilian Government to arrange some face-saving compromise. They would fear India gaining access to Jadhav as the actual story of where and how he was arrested would emerge. At that stage, cooperation of Iran would be vital to get corroborating evidence about the abduction, which can destroy the case against Jadhav.
Therefore, the road ahead is a steep one, albeit with precedents favouring India. While India can hope for the best, one should be prepared for the Pakistani army to stage a medical episode or encounter to eliminate Jadhav, much as prisoner Sarabjit Singh was killed in a supposed prisoner altercation. That makes it all the more important to keep lines between political leaders on both sides open. Hopefully, the two prime ministers will have a quiet chat on the sidelines of the upcoming SCO summit.
The writer is a former Secretary in the Ministry of External Affairs. He tweets at @ambkcsingh