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    How India won Kulbhushan Jadhav's case against Pakistan at the International Court of Justice

    Synopsis

    The Indian case has been a well-prepared and solidly argued one on a simple request - of access to Jadhav.

    Kulbhushan-jadhav-BCCL
    India's effort has paid off and ensured that Jadhav gets another shot at freedom from Pakistan Army’s custody.
    Kulbhushan Jadhav will live. Whether the retired naval officer returns home or not, he will certainly get another trial in Pakistan, after the International Court of Justice (ICJ) last week ruled that Pakistan breached its obligations under the Vienna Convention. This new trial will probably be more open and not by the military and India will probably be able to ensure Jadhav gets adequate legal cover.

    Three years ago, on the evening of March 29, Pakistani TV channels had lit up with a "confession video" by Jadhav, where he was seen saying that he was a RAW agent and was in Pakistan to do subversive acts in insurgency-affected Balochistan.

    The Indian High Commission in Islamabad was only informed after the TV show by the Pakistani authorities. Immediately, the then high commissioner, Gautam Bambawale, shot off a request for consular access to Jadhav.

    Jadhav was said to have been arrested on March 3, 2016. So that made it over three weeks that he was in Pakistan Army's custody without India's knowledge.

    Over the coming months, Bambawale would send similar requests every 15 days or so to the then Nawaz Sharif government. In the process, India built up an impressive dossier of requests for consular access that was denied by Pakistan. These would come in handy later.

    Back in New Delhi, the government did not deny Jadhav's nationality, describing him as a retired officer of the Indian Navy, who was doing business in Iran. India alleged that Pakistan had kidnapped Jadhav in Iran and brought him to Pakistan. A German diplomat in Pakistan suggested the Taliban (or some other terrorist group) had kidnapped him and sold him to the Pakistan Army (the diplomat later fudged his story).

    KJ
    Jadhav’s friends celebrate ICJ’s verdict in Mumbai on July 17.


    Even Sartaj Aziz, Sharif's foreign policy adviser, was on record saying the "evidence" against Jadhav were "mere statements". Between mid-2016 and early 2017, the Indian government decided to be creative and approached the ICJ in The Hague and found it had a strong legal case against Pakistan on consular relations under Article 36 of the Vienna Convention.

    In early 2017 too, Pakistan had approached India for "assistance" in its probe on Jadhav, saying the charges of terrorism against him included investigations against National Security Adviser Ajit Doval and then chiefs of Intelligence Bureau and the Research and Analysis Wing.

    After Pakistan had aired another "confession video" by Jadhav, then external affairs minister Sushma Swaraj told parliament in April 2017: "They (Pakistan) linked providing consular access to our acceptance of their position... We pointed out that consular access to Shri Jadhav would be an essential prerequisite in order to verify the facts and understand the circumstances of his presence in Pakistan."

    For Pakistan, Jadhav was seen as a great catch. After an attack on an army camp in Uri in September 2016 and stepped up infiltration in Jammu & Kashmir, Jadhav was something Pakistan could use to gain equivalence against India. It felt the Balochistan trope could be trotted out with conviction that India was sponsoring terrorism in Pakistan, leaving India no moral space. Never one to shy away from risks, Pakistan added to this by pronouncing a death sentence on Jadhav in April 2017.

    As Swaraj said: "To make matters even more absurd, three hours after the death sentence was announced, the Indian High Commission received an official communication from the Foreign Ministry of Pakistan reiterating the Pakistani proposal for conditional consular access. That tells us a lot about the farcical nature of the alleged proceedings..." It became clear then that regardless of the circumstances of Jadhav's arrest, Pakistan's sole interest was to tar India on the insurgency in Balochistan. Pakistan was taken aback at the ICJ case, because it was a clear departure from how it thought India would act.

    For India, this case was unique in many ways. Ever since then Prime Minister Jawaharlal Nehru took the Kashmir file to the UN Security Council in 1948, India has studiously stayed away from "internationalisation" of bilateral issues, particularly with Pakistan. That it was India which took the Jadhav case to ICJ had several implications.

    India was confident it had a solid case against Pakistan. From the start, it has confined its response to asking for consular access to Jadhav, which has been denied 16 times by Pakistan. For this, India utilised a small loophole left over in the Vienna Convention on consular matters, one of the few areas where both India and Pakistan acknowledge jurisdiction by the ICJ.

    In fact, the Indian case has been a well-prepared and solidly argued one on a simple request - of access to Jadhav. Second, India had to make certain that this case would not give Pakistan an opening to use the ICJ route on other issues like Kashmir or Indus water sharing.

    This gamble needed strong political backing. Prime Minister Narendra Modi, who does not shy away from taking unconventional paths, was solidly behind Swaraj and then foreign secretary and current foreign minister S Jaishankar. It could have gone against India if ICJ had accepted Pakistan's argument that the 2008 bilateral agreement would prevail. In fact, the July 17 verdict settled one important point forever - that the Vienna Convention trumps the bilateral pact.

    Julia Sebutinde, one of the ICJ judges, in her declaration, said: "It appears that -right from the arrest of Mr. Jadhav and without waiting for his trial - Pakistan determined that he was a spy who under Pakistani law was not entitled to consular access and, similarly, that India having "interfered in the internal affairs of Pakistan -had also forfeited its right to consular access, under Article 36 of the Vienna Convention".

    What happens now? Regardless of the spin given to the verdict by Pakistan's public relations department, it had to announce that Indian officials would get access to Jadhav. India will want that access to be unfettered, that is, without the presence of any Pakistani officials in the room. New Delhi hopes to get a clearer picture of how Jadhav was picked up.

    Second, the ICJ verdict has made the entire "trial" poisonous and internationally unacceptable. But no Pakistan Army chief can sanction Jadhav's release.

    India will be pushing for a civilian and open trial, where the story might be different from the current one scripted by the ISI, Pakistan's spy agency.

    Pakistan would want to avoid that too. Jadhav is now a hot potato for the Imran Khan government. They cannot execute him and holding on to him means Indians will walk all over any proceeding. But they will still want to exchange him for an official dialogue with India or any other form of engagement. India wants Jadhav's return but on different terms.

    Jadhav may have to spend many more years in a Pakistani jail or, worse, be under the risk of being attacked in - jail riot - like the one in which Sarabjit Singh, convicted on spying charges, was killed in 2013.

    Either way, Pakistan will remain under Indian pressure. The ICJ verdict just added to the pressure.


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    ( Originally published on Jul 20, 2019 )
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