Kulbhushan Jadhav Execution Stayed Again, ICJ Says India Has Right To Consular Access

Last month, 46-year-old Kulbhushan Jadhav was been sentenced to death by a Pakistani military court. On 9 May, the International Court of Justice stayed Jadhav’s execution, pronouncing on 18 May that the execution will be stayed further and admonishing Pakistan for not giving India consular access. Meanwhile, already-tense relations between India and Pakistan have been further strained by the Jadhav controversy.

A former Indian Navy officer, Jadhav was arrested in March 2016 in Balochistan, Pakistan (according to Pakistan; India says he was kidnapped from Iran). He was tried by Pakistan for allegedly engaging in “espionage” and working for India’s intelligence agency, the Research and Analysis Wing (RAW).

Background

Kulbhushan Jadhav was born in Mumbai in April 1970. After joining the National Defence Academy, he was assigned to the Indian Navy in 1991.

Jadhav was captured by Pakistani authorities during an alleged counterintelligence raid. According to Pakistani media, he was arrested “while infiltrating into Pakistan from the Saravan border area of Balochistan with Iran”. Indian sources, however, say that he was abducted from Iran.

Pakistani security forces reported Jadhav as a serving officer in the Indian Navy and asserted that he was an undercover RAW agent with the cover name of Hussein Mubarak Patel. They believed him to be involved in subversive activities in Balochistan and Karachi. He was soon shifted to Islamabad for interrogation, where officials implicated him for plans to destabilise the country by leading operatives to attack urban centres and funding Baloch separatists.

According to a “confession video” (transcript here) of Jadhav shot after his capture, he began working for Indian intelligence after the 2001 Indian Parliament attack. In 2003, he established a small business in Chabahar, a city in Iran. In the video, Jadhav says from 2003 he “was able to achieve undetected existence” and made regular “visits to Karachi” and executed “some basic assignments within India for RAW”.

What Pakistan says

Image Credit: ispr.gov.pk

Pakistan has accused Jadhav of being a RAW agent, who is working to destabilise Pakistan. As mentioned before, Pakistan released a confession video on March 30 where Jadhav says that he used his business dealings in Iran as a cover to frequently visit Pakistan and gather information for Indian authorities.

Balochistan Home Minister Sarfaraz Bugti said in March 2016: “[Jadhav] was … working for RAW and was in contact with Baloch separatists and terrorists fuelling sectarian violence in Pakistan and Balochistan …The Indian spy was involved in financially supporting terrorists and also confessed to his involvement in Karachi unrest.”

What India says

India has maintained that Jadhav is merely a Navy officer. The Ministry of External Affairs has repeatedly said that Jadhav was in no way linked to the Indian government. India has also argued that the video was forced and a propagandist ploy.

Indian officials say Pakistan’s actions seek “to cast aspersions on India to deflect attention from Pakistan’s well-known record of sponsoring and supporting terrorism”.

India has notified the Pakistani foreign ministry many times to get consular access to Jadhav but to no avail. This week, following Pakistan’s military court ruling, India’s Parliamentarians united to save Jadhav.

MEA Sushma Swaraj told Parliament: “… we have no choice but to regard the sentence, if carried out, as an act of premeditated murder … Let me state clearly that the government and people of India would view very seriously the possibility that an innocent Indian citizen is facing death sentence in Pakistan without due process and in violation of basic norms of law, justice and international relations. I would caution the Pakistan government to consider the consequences for our bilateral relationship if they proceed on this matter.”

International response

Pakistan’s military court ruling was met with criticism from other countries and human rights groups.

Amnesty International said Jadhav sentencing serves as an example for how Pakistan’s military court system shows scant regard for rights of the prisoners and operate in secrecy: “The death sentence given to Kulbhushan Jadhav shows yet again how Pakistan’s military court system rides roughshod over international standards. Stripping defendants of their rights and operating in notorious secrecy, military courts do not dispense justice but travesty it.”

Many international commentators and think tanks have questioned the secrecy of the trial and the validity of a military court’s proceedings. Meanwhile, Iran, from where Jadhav has been doing business for over a decade, has called out Pakistan for its attempt to drive a wedge between Iran and India using the so-called “spy card”.

What next?

Jadhav has been sentenced to death by a military court in Pakistan. He now has 60 days to go on appeal. That would lead to a prolonged trial during which Jadhav would languish in Pakistan’s jails for years, if not decades.

After all, this is not the first time that Pakistan will use a prolonged trial against someone accused of being an Indian spy. It has taken similar strides in the past with Kashmir Singh, Surjeet Singh, Ravindra Kaushik, Sarabjit Singh, and other real and presumed Indian spies in the past.

Meanwhile, Indian politicians have united to save Jadhav. The Indian government has stated that it “will go out of the way to save” Jadhav. It cautioned the Pakistan government to consider the consequences on their bilateral relationship if they proceed on this matter.

ICJ involvement

On 9 May, the International Court of Justice (ICJ), the principal judicial organ of the United Nations, responded to an appeal filed by India by ordering a stay on Jadhav’s execution. The Indian delegation was being represented by a team of lawyers led by Senior Advocate Harish Salve. India accused Pakistan of “egregious violations of the Vienna Convention”. In the ICJ, India argued that it had not been informed of Jadhav’s detention until long after his arrest and that Pakistan failed to inform the accused of his rights. Accusing the authorities of Pakistan of denying India its right of consular access to Jadhav despite its repeated requests, the Indian delegation also pointed out that India learnt about the death sentence against Jadhav only from a press release.

I have spoken to the mother of #KulbhushanJadhav and told her about the order of President, ICJ under Art 74 Paragraph 4 of Rules of Court.

— Sushma Swaraj (@SushmaSwaraj) May 9, 2017

A brief of the initiation of proceedings in the ICJ can be read here.

Finally, on 18 May 2017, at 3:30 PM IST, the ICJ delivered its verdict.

The Court essentially ruled that:

1. Both India and Pakistan are bound by the Vienna Convention,
2. The ICJ has jurisdiction over the Jadhav case,
3. The circumstances surrounding Jadhav’s arrest are still unclear,
4. India has the right to consular access,
5. Jadhav’s execution is to be postponed.

The ICJ verdict began at 3:30 but Pakistani spokespersons were saying at 2 itself that Pakistan is not bound by the ICJ to respect its verdict. It is highly probable that that will be Pakistan’s rhetoric even now. Meanwhile, whether consular access will be given or not remains to be seen.

NOTE: The article has been updated to include details about the ICJ’s stay on the execution and the ICJ’s verdict.