Afia Ambreen
The International Court of Justice (ICJ) is set to announce on July 17 its verdict in a case concerning Kulbushan Jadhav, an Indian spy who was arrested in 2016 and sentenced to death by a Pakistani military court for fomenting terrorism in Balochistan and Karachi. Jadhav, a serving commander in Indian Navy working for India’s Research and Analysis Wing (RAW), was arrested on March 3, 2016, from Balochistan. In his subsequent trial at a military court, Kulbhushan Jadhav confessed to his involvement in hatching terror plots against Pakistan. Army Chief General Qamar Javed Bajwa on April 10, 2017, endorsed his death penalty. In June 2017, the Indian spy filed a mercy petition against his death penalty while India approached the ICJ against the conviction. The ICJ stayed his execution.
It is worth mentioning that India is a country that sponsors terrorism in other countries and then covers this with heap of lies. Spies and saboteur like KBJ, Sarabjit Singh, Kashmir Singh and Ravindra Kaushik are cases in point. Sri Lanka insurgency is another example of Indian State sponsoring of terrorism where RAW supported Liberation Tigers of Tamil Elam (LTTE) with arms, logistics and training the insurgents. RAW supported Pakistani Sindhi nationalists demanding a separate state. Currently, India supports insurgents in Pakistan’s Balochistan, as well as supports Tehreek Taliban Pakistan (TPP) which has created mayhem in Pakistan killing thousands of innocent people including children of Army Public School Peshawar.
The legal experts say the ICJ will reject India’s plea to release Kulbhushan Jadhav. However, his conviction may be set aside and he will be allowed consular access. But truth of the matter is that consular access does not apply to a spy and a saboteur who is involved in dreadful terrorist activities. Kulbushan was not only a spy but also a mastermind of terrorism. Pakistani lawyer provided precedence basing on historical court decisions of the past and international law that spy and espionage cases are not granted consular access. Indian is the first country in the 60 years history of ICJ that has demanded such a concession from the court in the light of Vienna Convention. Any such concession, if provided, will be as per the Customary National Laws or Mutual Bilateral Agreements between both the countries like Pakistan and India have bilateral treaties of 1982 and 2008, and not by ICJ.
Supposedly, if it is accepted / supposed that consular access can be given as per Vienna Convention, even then neither Pakistan is liable to release him, nor his trial will be abrogated. India’s influence over ICJ may be projected where India had been able to succeed in persuading the court to restrain Pakistan from executing KBJ till final verdict and then final verdict against Pakistan i.e. provision of consular access. India did not accept till May 2017 that KBJ was an Indian citizen and it is so hilarious to note that prior to claiming consular access, India had to establish that he was an Indian citizen. As confusion still existed about his identity i.e. if he was Hussain Mubarak Patel or KBJ so how could he be given consular access?
It is going to be for the first time that a 16-judge ICJ bench, led by a Muslim judge Abdulqawi Ahmed Yusuf, would decide whether consular access should be given to a spy or not. Pakistan former chief justice Tassaduq Hussain Jilani is also an ad hoc judge in this case. India’s Dalveer Bhandari, who is a permanent judge at the ICJ, is also a member of the bench. Ironically, India argued that it was entitled to obtain consular access to Jadhav as soon as his detention was made public by Pakistan on March 25, 2016. India also argued that the trial and conviction of Jadhav for espionage and terrorism offences by a military court was ‘a farce’. It contended that the denial of consular access to Jadhav requires the ICJ to ‘at least’ order his acquittal, release and return to India.
Pakistan rejected all of the Indian allegations. It said the evidence obtained from Jadhav after his arrest and during the criminal process leading to his conviction was amply demonstrating his activities in fomenting terrorism and engaging in espionage within Pakistan. Islamabad maintained that it would be incompatible with international law for someone sent as a spy/terrorist by a state to be afforded access to officials of that state as New Delhi asserts. Pakistan also pointed to an express Agreement on Consular Access dated May 21, 2008, between India and Pakistan, which allows each state to consider a request for consular access ‘on its merits’ in a case involving national security.
It said Jadhav was provided with an authentic Indian passport under a Muslim name by the Indian authorities who served as a clear and obvious link between his conduct and the government of India. Such conduct is a blatant violation of international law and should bar any claim for relief from a court. Pakistan noted that in its previous decisions concerning Article 36 of the Vienna Convention on Consular Relations 1963 (which involved death sentences imposed by the US), the court made it clear that it was not a court of criminal appeal and the presence of ‘effective review and reconsideration’ by domestic courts was an appropriate remedy, even if a breach of the right to consular access had been established.
In a nutshell, credible evidences had been provided by Pakistan that Kulbushan was a serving military officer; therefore, his trial has to be undertaken by military courts as per law no matter Indian lawyer terms military courts of Pakistan established after imposition of National Action Plan as illegal or objectionable.
