The recent verdict given by a military court in Pakistan sentencing to death Indian Naval spy Lt Commander Kulbhshan Jadhav for espionage and sabotage has caused unrest in India. The coverage of the case by a frenzied Indian media has only worsened the situation across the border.
An interesting debate generated by the Indian media has been that Jadhav was abducted by the Taliban from Iran and later sold to the ISI. This version holds that this is how he got into the hands of the Pakistani military.
Indian media personnel’s demeanor in the coverage of the issue demonstrate utter anguish and shock, as if this arrest is one of the biggest war crimes that could have been committed. Further, the use of venomous language against Pakistan and a reasoning that’s devoid of any logic is certainly not helping their cause.
What Jadhav has done is normal to statecraft and has been done by agents of states for centuries. Both the customary international law and international law treaties speak volume on this issue.
Firstly, let it be said loud and clear that no country has the authority or the right to interfere with the political independence or the territorial sovereignty of another country. This principal is the core element of the United Nations (UN) charter and extends a semblance of protection to weaker nations.
That being said, espionage activities are the only way through which states can gather vital information about other countries. Occasionally, states have to pay a heavy price for engaging in these activities in the form of loss of vital personnel whose existence is hardly ever acknowledged by states.
Fascinatingly, this is shown in numerous international movies including some produced in Indian cinema. There are several Indian movies that depict the significant role played for the country by spies and the ruthless manner in which they are deserted.
After the release of the confessional video where Jadhav (who has said that he is a serving officer in the Indian Navy) has admitted his involvement in anti-state and espionage activities in Pakistani territory, there is enough evidence for his conviction.
The argument that Jadhav was a businessman working in Chabahar, Iran, and was abducted by the Taliban and sold to the ISI is devoid of logic. Neither the Iranians nor the Taliban have expressed any opinion on the matter.
Most interestingly, in one of the debates in the Indian Parliament, the Indian state minister for defense has been so naive to say that Jadhav was simply an Indian national who was carrying an Indian passport. The minister has questioned why a spy would carry his passport. The passport Jadhav was carrying had a different name, and this is apparent from the copy of the passport shown on the media. It is fairly commonplace for spies to carry false passports – this practice also depicted in James Bond movies.
Finally, the most significant allegation by the Indians so far has been that Jadhav was not given consular access. The relevant international law here is the Vienna Convention on Consular Relations (VCCR) of 1963, and the relevant section is Article 36. The VCCR 1963 is considered operational only for peacetime activities and is specifically formulated to provide cover for career diplomats and general civilians. In no way has this law been intended for professional intelligence officials, who operate in hostile countries. Jadhav was arrested as a spy of a hostile country with fabricated travel documents and a history of sabotage activities that are believed to have resulted in deaths of numerous Pakistanis.
Historically, similar activities have always been condemned by the international community. The famous example of such an incident is the aggressive activities of the US in Nicaragua. All those involved in the incident had been condemned. There should no sympathy for such actions. In another incident, the USA had launched an aerial surveillance operation in Soviet Union, gathering imagery through U-2 spy planes. The pilot involved in the activity was caught and convicted for espionage in Soviet Union. The latter also accused the USA of violating the UN Charter. The US justified its actions by stating that they were part of general practice of espionage necessary for self-defence and maintenance of balance of power. This argument was eventually rejected and US activities were deemed as a violation of international law.
Now, the only recourse for Indians is to realise that they cannot send trained RAW handlers to conduct anti state and sabotage activities in Pakistan, and then expect to seek refuge in international law and prestigious treaties like VCCR 1963.
The author is a practicing lawyer based in Lahore. He can be reached at [email protected]