TIC ANALYSIS l
The International Court of Justice (ICJ) rejected India’s request to ‘acquit, release and return’ its convicted spy, Kulbhushan Yadav, however it directed Pakistan to ensure an effective review and reconsideration of his sentence. It also ordered Pakistan to allow India consular access to Kulbhushan Yadav. The ICJ, in rejecting India’s demand that Pakistan’s conviction of Yadav be set aside, did call for Islamabad to review the verdict in light of the ICJ’s finding that Yadav’s right to consular access had been violated. The passport which Yadav used to travel to Pakistan under the name Hussain Mubarak Patel is also declared legitimate by the ICJ which is a blow to Indian narrative.
An Indian Navy officer, Khulbushan Sudhir Yadav’s prime agenda was to destabilize Pakistan and separate Karachi and Balochistan from the country. According to reports, Yadav had strong connections with terrorist organizations engaged in terrorism inside Pakistan and his plans were to damage the China Pakistan Economic Corridor (CPEC) also.
Kulbhushan Yadav was arrested on March 24, 2016, by the Pakistani security agencies. On March 25, 2016, a day later, the Indian Ministry of External Affairs denied any involvement but admitted that Yadav was a former Indian Navy officer. The case was then presented in front of the International Court of Justice (ICJ) with legitimate evidence from Pakistan.
● March 3, 2016: Kulbhushan Yadav was arrested in a counter-intelligence operation in Balochistan’s Mashkel area for his involvement in espionage and sabotage activities against Pakistan.
● March 25, 2016: A confessional statement was released by the Inter-Services Public Relations in which Jadhav claims to be a serving Indian Navy officer.
● April 8, 2016: Pakistan lodged First Information Report against Jadhav in Counter-Terrorism Department Quetta.
● June 16, 2016: Since Jadhav was arrested for trying to illegally cross Iran to enter Balochistan, the Pakistani government contacts Iran and Iran finally responded
● January 2017: Pakistan’s ambassador to the United Nations Maleeha Lodhi presents a dossier to the UN chief regarding India’s involvement in cross-border terrorism in Pakistan and Jadhav’s arrest.
● April 10, 2017: Jadhav was court-martialed and sentenced to death by a military tribunal for espionage. India claimed that the death penalty handed through a Field General Court Martial as “pre-meditated murder”.
● May 08, 2017: India moves the International Court of Justice against Pakistan, accusing the latter of violating the Vienna Convention in Jadhav’s case.
● May 18, 2017: ICJ stayed Jadhav’s execution by Pakistan “till the final decision of this court”. The UN’s top court also rejected Pakistan’s argument that the ICJ does not have jurisdiction in the matter, reasoning that it can hear the case because it involves, on the face of it, an alleged violation of one of the clauses of the Vienna Convention, which both Pakistan and India ascribe to and whose interpretation falls under its purview.
● June 22, 2017: A second confessional statement of Jadhav was released in which he admitted to working with the banned Baloch Liberation Army and Baloch Republican Army to carry out subversive activities in Balochistan. He also sought mercy from the army chief over his death sentence.
● September 2017: India submitted written pleadings to the ICJ, accusing Pakistan of violating the Vienna Convention by denying consular access to Jadhav.
● November 10, 2017: Pakistan offers a meeting between Jadhav and his wife, in Pakistan, on humanitarian grounds.
● December 13, 2017: Pakistan submitted its counter-memorial to India’s claim before the ICJ. In the counter-memorial, it argues that the Vienna Convention does not apply to spy operations.
● December 25, 2017: The Foreign Office hosted a meeting between Jadhav and his mother and wife. The meeting held as a goodwill gesture ended in a diplomatic spat between the two countries over the security checks Jadhav’s mother and wife underwent and the language restrictions during the meeting.
● January 6, 2018: Indian news website The Quint published an article stating that Jadhav was employed by RAW as part of “renewed efforts to use human sources as deep penetration agents in Pakistan”. The article was retracted by the website within hours.
● February 2, 2018: A major Indian magazine, Frontline, in an article acknowledged that Jadhav may be a serving Indian Navy officer and that India is waging a covert war against Pakistan.
● February 6, 2018: Pakistan sought access to 13 Indian officials to ascertain information about the Jadhav case but New Delhi remained uncooperative.
● February 19, 2019: The first official confrontation since the Pulwama attack takes place between Pakistan and India as the ICJ began its four-day public hearing. New Delhi asked the UN’s top court to annul Jadhav’s conviction.
● July 4, 2019: The ICJ announces through a press release that it will deliver its final judgement in the Jadhav case on July 17.
● July 17, 2019: The ICJ delivers its judgment on the merits in the Jadhav case
Stance of Pakistan & India
India claimed that Pakistan’s denial of consular access was a violation of Article 36 of the Vienna Convention. India also claimed that Jadhav’s trial and conviction by the military court of Pakistan fell below the required due process standards recognized globally. As a consequence, India sought annulment of Jadhav’s conviction. Belatedly, India introduced an alternative prayer at the ICJ (in case the principal relief was not granted by the ICJ) to have Jadhav’s trial ordered under Pakistani law before civilian courts with due process and full consular access to India.
Pakistan asked the ICJ to consider the engagement of Vienna Convention in light of a 2008 Bilateral Treaty between India and Pakistan which identifies the basis on which consular access would be considered by the two countries in the case of an individual suspected of espionage. Pakistan, however, prayed to the ICJ that even if it was established that India had a right to consular access, the appropriate remedy would be review and reconsideration before the Pakistan High Court in accordance with Article 199 of the Constitution of Pakistan.
Announcing its decision in the Kulbhushun Jadhav espionage case, the International Court of Justice (ICJ) has ruled that the Indian spy cannot be sent back to India nor can the sentence of the military court calling for Jadhav’s execution cannot be annulled. The court also rejected India’s demand for safe passage and return to India.
However, the court ruled that Jadhav must be given consular access. The execution sentence will have to remain suspended until Pakistan effectively reviews and reconsiders the conviction/sentence. However, it denied India’s demand to move the case out of military court.
“To conclude, the court finds that Pakistan is under an obligation to provide, by means of its own choosing, effective review and reconsideration of the conviction and sentence of Mr Jadhav,” the statement read.
“With regards to India’s contention that it is entitled to restitutio in integrin and its request to annul the decision of the military court and to restrain Pakistan from giving effect to the sentence or conviction, and its further request to direct Pakistan to take steps to annul the decision of the military court, to release Mr. Jadhav and facilitate his safe passage to India, the court reiterates that it is not the conviction and sentence of Mr. Jadhav which are to be regarded as a violation of Article 36….”
As the hanging of Kulbhushan has been delayed, it can be projected that the RAW officer will be used as a bargaining chip in the near future peace talks. His fate could be similar to other Indian spies like Sarabjit Singh and Kashmir Singh who were imprisoned and then used as Confidence Building Measures (CBMs) during peace initiatives.