Daily Times

The Spy Who Came in from the Cold is a 1963 Cold War spy novel by the British author John le Carré. It portrays Western espionage methods as morally inconsistent with Western democracy and values. The novel received critical acclaim at the time of its publication and became an international best-seller; it was selected as one of the All-Time 100 Novels by Time magazine.

The spy being discussed here is not fictional but a real live spy as well as terrorist. Commander Kulbhoshan Jadhav is a serving Indian Navy officer, who was nabbed from Balochistan on March 3, 2016. The incarcerated spy sang like a canary, not only providing details of his espionage infrastructure, but also elaborate plans of sabotage, sedition, terror attacks and clandestine activities in Balochistan and Pakistan’s commercial capital Karachi. Jadhav’s testimony was provided in the presence of a First-Class Magistrate. After being tried in a Field General Court Martial, since he is a serving Indian Naval officer, Commander Kulbhoshan Jadhav was awarded the death sentence.

India accepted that Jadhav was an Indian citizen but claimed that he had retired from the Indian Navy and was abducted from Chabahar in Iran. India failed to provide information regarding Jadhav’s Indian passport, which had his photograph but was issued under the fake name of Hussain Mubarak Patel.

Commander Jadhav’s case was referred by India to the International Court of Justice (ICJ), The Hague, where his execution was stayed in May 2018 and is to be heard in detail on February 18, 2019 on India’s insistence that it was not provided consular access to the convicted spy. Meanwhile, last year on December 25, Kulbhoshan Jadhav’s mother and wife were allowed to meet the death row prisoner. India raised a big hue and cry, insisting that the two ladies were not accorded due respect and protocol.

India’s assertion that Pakistan has violated the Vienna Convention in denying consular access to Kulbhoshan does not cut ice since it will be proved beyond a shadow of a doubt that he is not just a spy but a terror monger who has the blood of thousands of innocent victims on his hands

With the hearing at ICJ approaching, both Indian and Pakistani foreign office spokespersons are raising the ante regarding the case. India believes its plea to ICJ will be heard favourably while Pakistan too is convinced that its lawsuit against the Indian spy and terrorist will succeed. All evidence collected regarding Commander Kulbhoshan Jadhav’s heinous crimes, will be presented at the ICJ. Most of the gory details were not disclosed to the media earlier, because their disclosure can compromise Pakistan’s security but now the time has come to apprise ICJ of the evidence.

India’s assertion that Pakistan has violated the Vienna Convention in denying consular access to Kulbhoshan does not cut ice since it will be proved beyond a shadow of a doubt that he is not just a spy but a terror monger who has the blood of thousands of innocent victims on his hands. By this logic, tomorrow, if self-styled Amir of the Islamic State Ab? Bakr al-Baghdadi is captured, tried and sentenced to death for his odious crimes against humanity, would the Vienna Convention for providing consular access be applicable to him?

India is pleading the defence of Jadhav under Article 36 of the Statute of the International Court of Justice, the jurisdiction of the court, which arises from all cases referred to it by the parties to the UN Charter or any treaties or convention. Jurisdiction of the Court also emanates from Article 36(2) which states that the state parties at any time, through a declaration, accept the compulsory jurisdiction of the ICJ on all legal disputes concerning the interpretation of a treaty, a question of international law, or existence of a fact which would constitute a breach of an international obligation or on the nature and extent of reparation and all questions of jurisdiction is to be settled by itself.

Bear in mind that in the 1960s Pakistan had accepted the compulsory jurisdiction of the International Court of Justice with two reservations. 57 years later prior to the hearing of the Jadhav Case in the ICJ, Pakistan added six more clauses to the declaration in which one of them were that it won’t accept the compulsory jurisdiction of the Court on grounds of national security.

Then there is the question of the enforcement of the ICJ’s verdict. One of the most notable precedent of UNSC enforcement of a judgement of the ICJ can be seen in the case of Armed Activities in Nicaragua (US Vs Nicaragua) where the ICJ held the US accountable for arming of rebels and ordered for repartition. Owing to the enforcement, the US vetoed the enforcement of the judgment against itself.

It should also be taken with a pinch of salt that Pakistan may seriously consider taking the Kashmir issue before the ICJ. India and Pakistan both are bound by the Lahore Declaration and the Shimla agreement to resolve it bilaterally. However, no bilateral agreement can override the effect of an International treaty or UN resolution.

The writer is a retired Group Captain of PAF. He is a columnist, analyst and TV talk show host, who has authored six books on current affairs, including three on China

Published in Daily Times, February 16^th 2019.