By Dr Shahid Qureshi: –
Pakistan Is going to win the RAW agent Kulbhushan Jahdav case at the ICJ (International Court of Justice) because:
- India has failed to establish the identity of Mubrak Hussain Patel aka Commander Kulbhushan Jahdav of Indian Navy at the international court.
- It is not a case of ‘diplomatic immunity’ as Commander Jadave was based in Iran with the name and passport of Mubrak Hussain Patel and he was on Iranian business visa. He was running gold shop.
- The ICJ court has no jurisdiction of the matter as it is a ‘terrorism case where an individual had confessed and found guilty in the local military court of aiding, abetting, and sponsoring terrorism into Pakistan from outside i.e. Iran and India.
- ICJ has no jurisdiction because the local judicial options are not explored yet i.e. Supreme Court of Pakistan.
- The reason Nawaz Sharif sent this case to ICJ after speaking with Sajan Jandal was that because Pakistan was suppose to fight to loose the case but circumstances changed.
I told Chinese news agency Xinhua in an interview on South China Sea issue with Philippines that: ‘ICJ has no jurisdiction and mechanism to enforce its decisions”. Many countries including the US, China, Russia, the UK and Japan have ignored the court’s orders.
Pakistan should have established the identity of the person (Kulbhushan Yadave or Hussian Mubrak Patel) in question by India at ICJ before jumping in. But it was Nawaz Sharif’s spin to save a RAW asset as he gave ‘yes’ nod to take this case to ICJ in full collaboration with India following his multiple meetings with Sajan Jandal an Indian business man in Islamabad and Muree. It was a treacherous move by Sharifs to take case at ICJ without exploring the local judicial option i.e. supreme court of Pakistan.
“The International Court of Justice has started proceedings on the case of a former Indian navy commander sentenced to death in Pakistan over charges of being a spy.
Kulbhushan Sudhir Jadhav, a former Indian navy commander, was arrested in Pakistan in March 2016 and convicted of spying by a military court 11 months later. A month after Jadhav was sentenced to death, India approached the Hague-based World Court, seeking immediate intervention to halt the death sentence on the premise that Pakistan had breached the 1963 Vienna Convention by not allowing diplomatic assistance to Jadhav despite repeated requests.
The UN top court ordered a stay in his execution the same month until its final verdict on the matter. Islamabad has so far complied with the instructions. Here are the details of the case: After Pakistan announced the arrest, India said that Jadhav conducted legitimate business in the Chabahar Free Trade-Industrial Zone of Iran’s southern Chabahar city and was abducted by militants in the country weeks before. Here is identity question?
New Delhi added that the militants handed Jadhav over to Pakistani authorities but has yet to make public any details regarding legal proceedings in Iran related to the abduction claim preceding Pakistan’s announcement.
Some Indian officials had said the former Indian officer could have been honey-trapped into entering Pakistan, while some media reports in India mention him as a jeweller and others cite his family saying he was in the business of cargo transportation.
Pakistan has said Jadhav was tasked with disrupting the development of CPEC projects with Gwadar port being a particular target. He was charged with involvement in “subversive” and “anti-Pakistan” activities in Balochistan province as well as the city of Karachi.
On the first day of the hearing, India requested the international court to order Jadhav’s immediate release and return to India citing the lack of consular access that violated the Vienna Convention. Officials in Islamabad have denied New Delhi’s request due to the “spy’s subversive activities,” fearing he could provide details gathered during his espionage missions.
Pakistani officials also said the relief sought by India is disproportionate even if the treaty was violated, and at most Jadhav’s case could be reviewed. Even though it was New Delhi that requested a hearing at the ICJ, Indian officials accused Islamabad of “misusing” the trial as a propaganda tool.
Islamabad points out that previous precedent set by the ICJ makes it clear that it was not a court of criminal appeal and the presence of “effective” “review and reconsideration” by domestic courts was an appropriate remedy, even if a breach of the right to consular access had been established.
The High Court and Supreme Court of Pakistan provide such a review, as confirmed by leading UK-based military law experts, according to a statement on the Pakistan Ministry of Foreign Affairs website.
Officials in Pakistan released photos and details of a fake Indian passport recovered from Jadhav’s possession that carried his picture under a Muslim name Hussein Mubarak Patel which was used at least 17 times to enter/exit India and contained a visa for Iran’s CFZ.
Islamabad also cites a “highly credible independent UK expert” as saying the passport is an “authentic Indian passport issued by the Indian authorities.” Pakistan also says Jadhav was in service at the time of arrest and questions New Delhi’s narrative of his premature retirement since he was due to retire in 2022. New Delhi refuses to explain the passport issue and calls it “propaganda.”
The Iran factor
Pakistani officials believe Iran had no involvement in the case but had requested Tehran to investigate the use of its soil for staging terrorist activities in Pakistan. Six months after the arrest, an Iranian official had said that the probe into Jadhav’s stay in the country remained inconclusive.
Indian and Pakistani versions of the case have involved Iran, but Tehran has kept itself at a distance, neither confirming nor denying either sequence of events.
Even though the ICJ’s decision is binding, it has no mechanism to enforce its decisions. Many countries including the US, China, Russia, the UK and Japan have ignored the court’s orders.
Pakistan presents its arguments today, which will be followed by India’s counter-arguments on Thursday. Islamabad will then gives its closing arguments on Friday which will conclude the hearing.
The verdict’s announcement is expected to take a few months. Balochistan is Pakistan’s largest but least-populated and least-developed province. Pakistan has often accused India and other foreign entities of involvement in the unrest, and support for separatists in the troubled province. India denies these allegations but has hosted some separatists and at rare occasions also publicly expressed support for anti-Pakistan elements.
In July 2009, Pakistan’s then-prime Minister Yousaf Raza Gilani and his then Indian counterpart Manmohan Singh met on the side-lines of a Non-Aligned Movement summit in the Egyptian resort of Sharm el Sheikh.
Addressing a joint press conference with Singh, Gilani mentioned that Pakistan has some information on threats in Baluchistan and other areas which were shared with New Delhi. Singh and Gillani had both agreed to address each country’s concern’s which many in India had taken as a “blunder” and an act of “admission.”
Now the circumstances have changed for both India and RAW in Pakistan, and Indian Navy Commander Kubhushan Jhadav is not going anywhere from Pakistan for a very long time. The real challenge for Pakistan is to contain and neutralise his aides and abettors in the high places.
(Dr Shahid Qureshi is senior analyst with BBC and chief editor of The London Post. He writes on security, terrorism and foreign policy. He also appears as analyst on Al-Jazeera, Press TV, MBC, Kazak TV (Kazakhstan), LBC Radio London. He was also international election observer for Azerbaijan April 2018, Kazakhstan 2015 and 2016, 2019 and Pakistan 2002. He has written a famous book “War on Terror and Siege of Pakistan” published in 2009. At Government College Lahore he wrote his MA thesis on ‘Political Thought of Imam Khomeini’ and visited Tehran University. He is PhD in ‘Political Psychology’ and studied Law at a British University. He also speaks at Cambridge University. He is a visiting Professor at Hebe University in China.)
Views expressed are not of The London Post.