Kulbhushan case — how, why and what?

Sparks a legal battle between India and Pakistan at the ICJ

On March 3, 2016, serving Cdr Kulbhushan Jadhav of the Indian Navy, working for their premier Intelligence agency RAW, clandestinely entered Pakistan from across the Saravan border with Iran and was arrested by the Pakistani authorities in the course of a counter-intelligence operation from Mashkel area in Balochistan. Cdr Kulbhushan admitted unspeakable acts of horror and terror against Pakistan. Based on evidence, a military court passed a death sentence. India went to the International Court of Justice (ICJ) on May 8, 2017 against the military court’s decision to execute Kulbhushan. The buildup between the two countries is around legal arguments, for which Pakistan’s counter memorial dated Nov 17, 2017 is an exceptional document by many standards.

Pakistan’s Field General Court Martial (FGCM), a military court, under section 59 of the Army Act 1952, read with Official Secrets Act section 3, passed the death sentence. The process was as per the Pakistani law, with Cdr Kulbhushan recording his statement in front of a magistrate (as per section 164 of Criminal Procedure Code), a mirror image of the Indian criminal law as well. Kulbhushan was represented by a law officer who was appointed for him. No consular or high commission access was granted to him on the grounds that international treaties, like the Vienna Convention or International Convention on Civil Political Rights (ICCPR), do not cover for a national involved in espionage, or terrorism in another country.

All of these legal points expressed above are important when shown in relevance to how India is pleading its case, and thereby the outcome.

Possible outcomes of the case: The following are assumed outcomes based on the set of documents available from the ICJ. There is possibility that Pakistan may win the case; the ICJ may find the matter beyond its jurisdiction, hence Pakistan may carry out the execution of Kulbhushan. There is another possibility that the ICJ ask India to take the matter directly with Pakistan through negotiation and suspend the execution till then. However if it were so, it would have happened during the first round of arguments when Pakistan argued that the ICJ did not have jurisdiction to entertain such cases as said in Pakistan’s counter memorial (as per ICJ rules) sent in 2017. This did not happen and henceforth, this gives rise to the notion that the ICJ wants more arguments from India and evidence-backed proof from Pakistan and by that the ICJ may hand down something more substantial, and perhaps not as favourable as Pakistan expects. There is, therefore, another possibility that Kulbhushan is asked to be handed back to India, or that there is a retrial in a different set of ‘trial environment’ i.e. non-military court or even in a different country. The court may also allow the Indian High Commission access to Kulbhushan. In a retrial, there is a possibility that Kulbhushan may retract from his confession, thereby weakening the most solid evidence against his conviction.

Reviewing few past cases between Pakistan and India at the ICJ: There have been few rows which India took against Pakistan in the ICJ such as below: Appeal relating to the jurisdiction of the ICAO Council; Trial of Pakistani prisoners of war; and Aerial incident of August 10, 1999.

Based on the past ICJ judgment on Pakistan-India disputes some of the following observations are: Dispute between the two countries should be resolved amongst themselves; the ICJ will not take a ‘hard stand’ and will try to play a role of an arbitrator instead of passing down a hard decision; and the ICJ prefers to take itself out of situations where the tempers boil as high as it does in Pakistan-India disputes.

The ICJ decisions in the above cases also reveal line of arguments and its possible stance on the Kulbhushan issue. The Indian point of view interestingly in the last case “Aerial Incident of August 10, 1999” (Indian air defence destroyed a highly sensitive and expensive Pakistani aircraft) that the ICJ did not have jurisdiction to adjudicate the case which Pakistan initiated, was accepted by the body. Pakistan’s plea was not entertained. Interestingly Pakistan this time around also took this stance that the ICJ did not have jurisdiction (but from another angle), which is something India opposed. However, the ICJ seems to be entertaining Indian’s stance and going ahead within the merits of the case.

Possible reason if it’s an unfavourable outcome: With utmost care, only as a hypothetical case and without rendering prejudice to anyone, what if Pakistan does not get the expected or favourable outcome at the ICJ. Some of the reasons for that happening may be:

Firstly, the ICJ is not a criminal court or appellate court where an appeal can be lodged. Hence, the ICJ may not permit execution or hanging of a person.

Secondly, after examining its multiple judgments and nature of decision which flow out of the ICJ (nearing 60 cases which were reviewed), it seems the ICJ assumes the role of an arbitrator or rather one that resolves disputes. It is not going to declare India a terror-sponsoring state by declaring Kulbhushan a terrorist instructed by a sovereign country to execute activities in Pakistan. The ICJ’s position in such a case would become extremely precarious.

Thirdly, the ICJ may accept India’s argument that the Vienna Convention, especially Article 36 of the convention to which Pakistan is also a signatory, has given certain rights and privileges to war prisoners (including spies) which were not given to Kulbhushan and hence the decision by the military court has some limitations (possible argument from the ICJ accepting the Indian point of view).

Fourthly, the hearing could have been done in open court with evidence to be shared, and displayed for closer examination. This has to be read with the fact that the ICJ may not have approved of the military courts, or its process and along with the fact that Kulbhushan was not given any “Indian access” which included his preferred choice of an Indian lawyer, or other means through which he would have defended his case.

Fifthly, the ICJ may like to tone down the tension between the two countries in a manner similar to its decision in the case “Aerial Incident of August 10, 1999”. The ICJ according to some analysts would not like to make strong decisions.

Hence Pakistan has never been at an advantage in the ICJ, something worth exploring internally as to why?

Published in The Express Tribune, February 23^rd, 2019.

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