How India Can Save Kulbhushan Jadhav

Congratulations are certainly in order to Harish Salve and his team for having won us a judgement at the International Court of Justice that endorses every single point presented by the Indian side. Our felicitations will, however, have to be prima facie and interim as the Court's order was prima facie and interim. Any premature triumphalism would be inappropriate because final orders will come only in August when the Court addresses itself to the substance of the issues India has brought before it, and any other issues that Pakistan says it intends to agitate at the final hearing in The Hague.
 
The moot question is: have we saved Kulbhushan Jadhav's life? And the sad fact is that we have not. What we have won him is a three-month reprieve till August. And that is a somewhat Pyrrhic victory because the Pakistani counsel, Barrister Khawar Qureshi, had told the ICJ that, in any case under Pakistani law, no execution could be carried out till the end of August. So whether Jadhav's life is safe till the end of August because of the ICJ "stay" or because of the provisions of Pakistani law remains a matter of personal speculation.

Those who loathe Pakistan, and most particularly its army, will, of course, credit the ICJ. Pakistanis themselves are more likely to credit it to Pakistani's strict observance of their own laws. Either way, Kulbhushan can breathe easy that unless Pakistan willfully breaks the ICJ's order and its own laws, he has at least till August to live.
 
That apart, assuming, as I think we are entitled to, that the final order will be as positively in India's favour as the current interim order has been, would such an order be enough to ensure that Kulbhushan lives out his life to its natural conclusion? On the basis of the ICJ's present order on "provisional measures", that is a question impossible to answer. For the most the ICJ can do, after having ordered that Jadhav cannot and must not be executed till the Court renders its final orders, is to restrict its final orders to the provisions of the Vienna Convention on Consular Relations, not go to the extent of ordering Pakistan to overturn the sentence passed under Pakistan's domestic legislation, namely, its Army Act. I expect the ICJ will say finally that India is entitled to consular access to Jadhav and that Pakistan must therefore, grant such access. But can they go beyond to render null and void for all time the Pakistan military court's verdict of death?
 
That seems most unlikely, at least on the basis of the complaint that we, as the Petitioner, have brought to the court under the Vienna Convention on Consular Relations - for that Convention is designed to assure access, but not to determine what follows thereafter. Having granted access, it is up to Pakistan to go ahead with the execution or grant clemency, as it wishes That specific point does not fall in the jurisdiction of the court under the Vienna Convention - although there may be grounds under some other international Convention to which both countries are party - say the UN Declaration on Human Rights - for India to go back to the ICJ.


What we have substantially secured is a hundred-day breather to find a way of saving Kulbhushan. The initial reaction of the Pakistan authorities to the ICJ interim order has included their saying they will bring all the evidence they have against Jadhav and India before the Court. This what they had sought to do in the initial hearing but the Court refused them permission to screen Kulbhushan's alleged "confession". This time round, that is, in August, the court may give Pakistan the opportunity of hanging itself. For if it is Pakistan that brings in substantive issues relating to the evidence they claim to have gathered, India would be given the golden opportunity of rebutting Pakistan, and the Court might decide that since it is the Respondent (Pakistan) that has substantively agitated the issue before the court, the court is entitled to claim jurisdiction over the substance of the evidence and not limit itself to the question of consular access under the Vienna Convention.
 
If, however, the ICJ takes its usual position that it will pronounce only on the issue brought before it by the Petitioner (India) - namely the interpretation and applicability of the Vienna Convention - even the possibility of Pakistan damning itself will be removed from the realm of judgement.
 
Therefore, what we have in hand, as a result of Salve's exertions, is an interim order restraining Pakistan from undertaking the execution before August, along with a second "provisional measure" that Pakistan must report to the Court on the steps it is taking to implement the first part of the order - which is to not execute Jadhav before it gives its final order in August. Perhaps that means Pakistan will have to periodically assure the Court between now and August that Jadhav is alive. That's it. For although our news channels are reporting that the Court has ordered Pakistan to grant consular access, that is not included as a "provisional measure" in the interim order. We might try to interpret the totality of the judgement to argue that guaranteed consular access is implicit in the judgement - but it cannot be maintained that this has ben explicitly provided for as, say, the stay of execution has, indeed, been explicitly provided for.
 
The Court also reminded Pakistan that its order regarding non-execution till final orders is "binding" on Pakistan. But a plain reading of the order only makes it binding on Pakisan to not execute Jadhav before the final judgement is rendered (in August); it says nothing about Pakistan being bound to immediately grant India consular access to Jadhav.
 
But there are nevertheless at least two rays of hope we might consider availing of. The first arises out of a statement made by the Pakistani counsel in the course of his arguments that Pakistani law provides for the "writ jurisdiction" of the High Court even in a case decided by a field court martial. If this is indeed so, perhaps that is what we should concentrate on while the ICJ's injunction prevents Pakistan from executing Jadhav. Since no Indian lawyer is going to be granted a visa for such a purpose, and Pakistani lawyers have been threatened by their own Bar Association from coming to Kulbhushan's aid, perhaps we could find a lawyer from a country that effectively enjoys unimpeded access to Pakistan (Iran? Saudi Arabia? China?) to rush to Lahore and invoke the writ jurisdiction of the Punjab or Balochistan High Court to get the case moved from the military to the civil side. I think this option should at least be explored by our sharpest legal minds.
 
The second option would be the one I have elaborated in a previous column: a "spy-swap". A panelist on a TV discussion yesterday that I was on objected strongly that we could not talk of a "spy-swap" as that would be to concede that Jadhav is indeed a spy. Good point - although in all the spy exchange cases I listed in my previous column, neither side conceded that their man was a spy. But to make my point politically correct, perhaps we could call it a "detenue-swap". The Pakistanis must want some Pakistani or a bunch of them who are in our custody, and we might consider a swap. That was the standard procedure during the Cold War from U-2 pilot Gary Powers right through to the Russian spy, Anna Chapman, in 2010. (For details, please refer to my previous piece).

The important thing is to be absolutely clear in our own minds that our objective must be the saving of Kulbhushan Jadhav's life. If we let our widespread national dislike of Pakistan cloud our judgement, we may have the satisfaction of having "exposed" Pakistan but we may in the process have lost the opportunity of saving a precious Indian life. I take the liberty of reminding those who think the ICJ can restitute Jadhav to his family alive and well of three separate cases in which the USA (none other) executed nationals of Nicaragua, Mexico and Germany - in total violation of ICJ's explicit orders to not proceed with the executions. The ICJ could do nothing about that because once its judgement is rendered, it is up to the country concerned to respect that order - or to violate it. The ICJ has no means of enforcing its judgements. The only relief lies in approaching the UN Security Council. With the US itself exercising veto powers, the UNSC could do nothing to punish the US for its "egregious" violation of the court's orders, for the US would have simply vetoed any sanctions. And in the instant case, China, smarting under India's refusal to join their Belt & Road Initiative, is certain to cast its veto in any attempt to censure Pakistan for hanging Jadhav.
 
I conclude by recalling the case of sepoy Chandu Babulal Chavan who "inadvertently" crossed the border on the very day of the "surgical strike". The DGMOs took up this matter among themselves and made good use of the "hot line" that connects them. Chavan was restored to India in just three months after he was seized across the border. Keeping that precedent in mind, we should put our cards on quiet diplomacy and back-channel contacts to save poor Kulbhushan Jadhav. After all, there is always a Jindal to link the two Prime Ministers together.

(Mani Shankar Aiyar is former Congress MP, Lok Sabha and Rajya Sabha.)

Disclaimer: The opinions expressed within this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of NDTV and NDTV does not assume any responsibility or liability for the same.
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