A diplomatic setback
I am not suggesting that Kalbhushan Jadhav should be spared for his crimes and used as a pawn for prisoner exchange. Nonetheless, no option can be ruled out under the changed circumstances
The International Court of Justice (ICJ) staying the hanging of convicted Indian spy Kalbhushan Jadhav is a diplomatic setback for Pakistan. Apparently Islamabad was caught by surprise when New Delhi suddenly approached the ICJ for interim relief for Jadhav.
It seems our policy makers, smugly hoisted by their own petard, believed that India as per its past policy would not take a bilateral matter (with Pakistan) to a multilateral forum. But it did. In the end analysis Islamabad was left with lots of egg on its face.
A hurriedly summoned lawyer Khawar Qureshi QC based in London pleaded Pakistan’s case at the international court. Khawar is a highly respected and competent queen’s council. He is not new to the ICJ where in 1993 he was counsel for Bosnia in the genocide case. Naturally he charged half a million pounds to appear for the defence. In sharp contrast the former solicitor general of India, Harish Salve, fought the case for his country pro bono.
According to Salve — as a lawyer with forty years experience under his belt — he had a feeling that while he was arguing the judges were connecting with him. “It was gratifying that I did not see that connection when the other side was arguing”, he added.
This statement sums up our defence strategy. In fact there was none. Our lawyer was just able to do a cut and paste job. Apparently he wanted to play Jadhav’s ‘confessional’ video in the Court. But that was disallowed.
India had built its case on the premise that Pakistan was just about to hang Jadhav unless the ICJ stayed the execution. On the evening of 10 May the Indian government approached the registrar of the ICJ and claimed that it was an urgent matter. Thereby president of the court, Ronnie Abraham, immediately issued an order restraining Pakistan even before the regular hearing scheduled for next Monday.
Our lawyer took the plea that the ICJ neither had the jurisdiction nor the locus standi to hear the case. Furthermore, consular access could not be accorded to spies. Since Kalbhushan had not exhausted his right to appeal to a military tribunal and a plea for clemency, there was no immediate plan to execute him, he contended.
Unfortunately Islamabad’s case has been rejected in toto by the ICJ in its interim order. The Court reasoned that Pakistan could hang the spy by August this year. Hence the needs for a restraining order.
Despite the obvious setback, true to their past norm, our policymakers are in a state of denial as if nothing has happened. Our Defence Minister Khawaja Mohammad Asif, in his signature acerbic style, has loudly claimed that the verdict is not binding on Pakistan.
If Islamabad reckoned that the Vienna Convention on Consular Relations (VCCS) and the ICJ verdicts are not binding on it, it should have simply boycotted the proceedings. But instead it sent an expensive lawyer to plead its case.
Unsurprisingly, some critics contend that the Indian lobby prevailed on the ICJ. Regrettably, blaming India for our own blunders has become a national pastime of our elite.
What was the role of the Foreign Office in the whole matter, one does not know. It was obvious that our octogenarian advisor on foreign affairs, Sartaj Aziz, was taken by complete surprise when the Indians moved the ICJ. He sounded quite clueless in front of the media.
As it transpires now the lawyer was selected and the defence prepared by the military. Attorney General Ashter Ausaf Ali was nowhere visible at the ICJ, not even in its corridors at The Hague.
Instead of adopting our signature ostrich like attitude and burying our head in the sand, we should be realistically revisiting our present strategy in light of the ICJ interim injunction.
There are strong voices pleading that we should go ahead with Jadhav’s hanging and simply ignore the verdict that has stayed it. Nor should we accede to giving consular rights to the convicted spy.
ICJ is a UN body, and if we defy its edicts New Delhi will simply take the matter to the Security Council. Of course our perennial friend China will veto any move hostile to Pakistan.
But in the interregnum so much damage would have been done that Islamabad can ill afford. Death penalty is anathema to the west as well as most of the US.
Under our law we are perfectly entitled to hang spies, terrorists and criminals. However, in this case India has perfectly succeeded in internationalising the matter to the detriment of Pakistan.
Hence we should move with caution. Kalbhushan is certainly guilty as charged. Last year on a visit to Balochistan along with senior journalists, I met the officer who nabbed him from the insurgency-ridden province. He likened it to the biggest intelligence coup since capture of the US pilot Francis Gary Powers when his spy plane was downed over the former Soviet Union in 1960.
The officer referred to the film Bridge of Spies in the context of Kalbhushan. As the film demonstrates and as it happened, Powers was exchanged with a convicted Soviet spy, Rudolf Abel.
His lawyer ably convinced a US judge hearing the case to spare the Soviet spy the death penalty, as he could be useful in a prisoner exchange. In the end analysis, after a lot of diplomatic and legal wrangling, the exchange took place.
I am not suggesting that Kalbhushan Jadhav should be spared for his crimes and used as a pawn for prisoner exchange. Nonetheless, no option can be ruled out under the changed circumstances.
The case being internationalised living in a cocoon is no longer a workable strategy. It is not merely a military matter between the spy agencies of India and Pakistan. For starters we should actively consider giving consular access to the convicted Indian spy. Since it is reciprocal as a result of its denial many Pakistanis languishing in Indian jails would also suffer.
Some critics are accusing the government of half-heartedly perusing the case against Jadhav at The Hague. According to this perverse logic Sharif, in his recent meeting with the Indian steel tycoon and common friend of the Pakistani and Indian prime ministers at Murree, assured his guest that Pakistan would go slow on the Kalbhushan Jadhav case.
This is a serious allegation not borne out by any empirical evidence. Unfortunately our armchair conspiracy theorists never tire of branding our elected leaders as traitors and a security risk.
Nawaz Sharif is no exception to it. Being prime minister of Pakistan thrice what can India give him? This is the point to ponder. Sadly in the past he also played the same game by accusing his political rivals of being unpatriotic.
