Pak PM Should Release Kulbhushan Jadhav – And Avoid Humiliation

Hopefully PM Imran Khan will signal that ‘enough is enough’ & direct that Jadhav be returned to where he came from.

Image of Kulbhushan Jadhav used for representational purposes.

(Photo: Lijumal Joseph/ The Quint)

So it’s done – with a judgment that is already causing celebration across India’s TV channels, and on the streets.

The International Court of Justice, fifteen to one, dismissed all of Pakistan’s arguments in the case of Kulbushan Jadhav, former officer of the Indian Navy, holding that it had indeed violated norms and procedures in the case, and calling upon it to do an entire review. The one hold out was unsurprisingly, a Pakistani.

And no, the Court did not direct just a simple review. The court directed that the review must ensure that “full weight is given to the effect of the violation of the rights set forth in Article 36, paragraph 1, of the Convention, and guarantee that the violation and the possible prejudice caused by the violation are fully examined.”

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That’s a knot that will be difficult to untie.

The Vienna Convention on Consular Relations ( VCCR) signed by both parties holds that a state should ‘without delay’ inform the consular division of the state to which a prisoner belongs, the person’s own communication also forwarded without “undue delay”, the prisoner told of his rights, and thereafter full access be given to the person under detention. Pakistan failed to do any of this in the case of the former naval officer.

There’s no court in Pakistan that can say that it did, without putting itself to the blush.

The Kulbhushan Jadhav Case: A Refresher

To those who are unfamiliar with the ins and outs of the case, the simple facts are these. Pakistan alleges that it caught the retired commander in Balochistan in the act of sponsoring terrorism, apparently as an agent of the R&AW. That in itself is a joke, as even the ISI would know. No intelligence agency worth its secret seal will consign an officer directly into the field of operations, the antics of Hollywood spies notwithstanding.

There are cut outs and front men, and yet others, sometimes entirely unaware that they are in fact, acting for an intelligence agency.

Next comes the entirely incoherent aspect of the case. Pakistan’s only evidence to support this claim is that the man carried a false passport – definitely a crime, but certainly not deserving of a death sentence.

It’s not difficult to get a passport in Pakistan. Last month, authorities seized 155,000 fake national identity cards – the basic document that is the gateway to getting a passport or virtually anything else. The actual records of the trial by Military Courts and the purported evidence presented there to prove he was in fact aiding terrorism have never been presented.

If that evidence was incontrovertible, surely Islamabad would have produced it in triplicate, with additional copies for anyone and everyone?

Thereafter the proceedings were entirely unlawful, with the prisoner consigned to a Field General Court Martial, where the judges are military men, and not lawyers. A confession was extracted that was aired well before the actual registration of an FIR on 8 April 2016. That was plain foolishness triumphing over good sense.

What India’s Case Rested On

India’s case rested on one simple fact, which was that Pakistan violated Article 36 of the VCCR by denying Kulbhushan Jadhav his rights under the Convention.

Pakistan’s riposte was absurd. After propagating to one and all that it had caught an ‘Indian spy’, Islamabad chose to ask New Delhi to prove that he was indeed an Indian citizen, since he had a false passport. To which the counsel quite properly quoted Pakistan’s own statements on the arrest.

Legal Hurdles In The Kulbhushan Jadhav Row

There were legal hurdles. For one, Article 36 has a rather uneasy history, since it was originally inserted into the Convention at the very last minute, since states are traditionally jealous of the privileges they give away.

Another legal hiccup was that in 2008, in a fit of brief friendliness, the two countries signed a bilateral agreement on Consular Access, which was meant to provide relief to the poor unfortunates caught by each others border forces, often languishing in prisons for years, and sometime untraceable even by local authorities.

The agreement however included a clause, which clearly stated that where a detention was on political or security grounds, each side could ‘examine the case on its merits’.

Since it was India who routinely caught Pakistani terrorists in Kashmir and elsewhere, Delhi probably felt safe in including this clause.

To Pakistan it didn’t matter. It would decide any matter depending on what its Army felt at that point of time. In the event, the Court dismissed Pakistan’s allegation that the bilateral treaty held true, deciding that the treaty did not in anyway deny consular access, and indeed, insisted on humane treatment.

All of that is legal minutiae.

A Distasteful Farce, Courtesy Of Pakistan

What was unfortunate was the way in which the Pakistani side chose to conduct the case. If anxious relatives had been told that the proceedings at the International Court of Justice included references to Humpty Dumpty, they would have been entirely disbelieving. But it did. Pakistan’s lawyer referred sarcastically to “characters from Wonderland…, not least the rotund character with a fragile cranium,” in throwing scorn upon the Indian arguments.

There was worse. At one point, Pakistan’s lawyer even referred to the Indian NSA as possibly looking to fill the vacancy for a character to play James Bond. Then were the usual allegations of the Indian abuse of human rights in Kashmir, and a lot else besides.

Will PM Imran Khan Do The Right Thing?

It was distasteful, and entirely characteristic of the entire farce that has played out in the case against the former Navy officer, Kulbhushan Jadhav.

And here’s the biggest irony of all. In its case, Pakistan also chose to refer to the UN Security Council Resolution 1373 which calls for the greatest cooperation between countries in cases of terrorism. This from a country that has not even bothered to hide that it harbours the worst terrorists.

At what point facts descended into farce is difficult to say.

Hopefully however, the Pakistani Prime Minister, who is not without a strong moral sense, will signal that enough is enough, and direct that the erring Naval officer be returned. That will at least reduce one international embarrassment residing in Pakistan. The others can wait.

All live updates on the case here.

(Dr Tara Kartha was Director, National Security Council Secretariat. She is now a Distinguished Fellow at IPCS. She tweets at @kartha_tara. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses, nor is responsible for them.)