India cannot avoid espionage connection

The four-day trial in the Kulbushan Jadhav case at the International Court of Justice at The Hague has concluded, and the verdict is expected to be announced in summer. The heat of the post-Pulwama attack situation reflected in the proceedings at the highest international forum for justice too, as the Indian side made needless gesturing by not booking accommodation in the hotel where the Pakistani delegation was staying, and by refusing to shake hands with their counterparts from Pakistan.

This posturing aside, the issue of importance from the perspective of international law in this case has to do with the sanctity of the Vienna Convention on Counsellor Relations (VCCR). The Indian side has built its case on the claim that Pakistan has violated the convention by not granting counsellor access to Jadhav after he was caught entering Pakistani territory from Iran, and he later admitted to espionage. Pakistan’s defence has been that the convention is meant not for spies and terrorists, and that Jadhav has admitted to his involvement in both kinds of acts in Pakistan, which have resulted in loss of life and property.

Given the Indian case rests on Pakistan’s apparent violation of the convention, it is striking that its legal team has remained unable to respond to any of Pakistani questions about Jadhav’s espionage. As has been pointed out by the Pakistani legal counsel, the question posed to the Indian side would have required engagements with facts like Jadhav’s presence in the Pak-Iran border area and his extensive travels to Pakistan on a fake passport. All of these would have required sharing of information about activities conducted on Pakistani territory, which jeopardised the latter’s national security.

Further, the Indian side remained singularly concerned with the military court conviction of Jadhav. Though military courts aren’t exactly forums where due process is respected, the important caveat in the matter, and one that was stressed by the Attorney General of Pakistan during the hearing too, is that a First Information Report (FIR) is also registered against Jadhav with the police force. It would strengthen Pakistan’s case in the international forum if proceedings are initiated on that FIR in a timely manner. Once the legalities of the matter have been looked into, it would be beneficial if evidence against Jadhav is examined in a court of law where a conviction can be secured in accordance with the due process. This will seal the deal at international forums in Pakistan’s favour.  *

Published in Daily Times, February 23rd 2019.