Getting Jadhav Back - A Hopeless Endeavour?

On the 3rd of March, 2017, Kulbhushan Jadhav, a retired Indian navy officer was captured by Pakistan's army near the Saravan Border in Iran, and was arrested by the Pakistani authorities for acts of terrorism against Pakistan and spying for the Indian intelligence agency R.A.W.

On April 10th, still within the jurisdiction of Pakistan (and in complete ignorance of India's efforts made to get consular access, as a matter of her right) he was sentenced for hanging on charges of espionage and sabotage.

Unfortunately and regrettably, the innocence of Kulbhushan Jadhav is not the principal matter at hand that is being dealt with. In fact, the question of his innocence perhaps failed to appear even within the purview of the authority that holds him captive till date as he approaches the inevitable. And that is where the crux lays- his inevitable death sentence.

It seems as though the Pakistani authorities are simply bent on taking personal responsibility for a man who may or may not be a spy, all with blatant disregard to:

1. Jadhav's basic human rights including freedom from self-incrimination, right to a fair trial, and a right to be tried within the jurisdiction of his own state. 

2. The rules of the Vienna convention on Consular Relations; a treaty which had been signed and ratified by both India and Pakistan. 

3. The decisions of the International Court of Justice, which passed an interim order for staying of Jadhav's hanging on May 18th. 

4. The fact that there is lack of evidence. In spite of making allegations along the lines that Jadhav as a still serving navy officer was in contact with the Baloch separatists, that he carried out acts of terrorism to fuel violence in the province of Baluchistan, and that he provided financial aid to terrorists to cause unrest in Karachi, the Pakistani authorities have been unable to cite any definite sources of findings or evidence that proves his involvement in the alleged activities. 

The majority of their findings have been based upon Jadhav's ‘exclusive' confessional footage, where he admits to being a R.A.W. agent. 

Watch Jadhav's Confession

Lieutenant Colonel Shafqat Saeed, a Pakistani defence analyst, also stated that Pakistan's claims against Jadhav are not ill-founded. That he was carrying a passport with a pseudonym, attempted to make illegal crossings, and was carrying large amounts of US, Iranian, and Pakistani currency at the time of being caught, is sufficient proof of him acting as a spy for India, Saeed said.

It's not unclear why India would face a hard time digesting these claims.  

As one can observe while watching Jadhav's confession, the flawed manner in which the bits and pieces of his confessions have been sloppily combined and demonstrated strongly suggests that the whole footage has been fabricated by the authorities. That there was no mention of the kind of terrorist activities Jadhav was carrying out, and that he was admitting of having been treated “with the utmost respect and in a proper courteous way,” (especially as a spy,) also make the confessions seem extracted.

Incidentally, Saeed let slip (and inadvertently admitted,) in a debate on the authenticity of the footage, that it was as long as 6-7 hours and had to be edited and cut short to hide “confidential matters that cannot be made public.” Maroof Raza, the Consulting Editor in Strategic Affairs of Times Now, stated astutely in response that unless the UN members, the secretary general, and others were not made to sit down and watch the whole raw footage, it was unlikely that anyone would buy into the plausibility of Jadhav's confession being genuine.

Of course, one's biggest frustration stems from the fact that sending a navy officer for espionage activities is not likely to preserve any bases of deniability if such officer is caught. Why would India act so self-destructively?

In spite of ICJ's interim order dated May 18th, the hope that Pakistan will not proceed with Jadhav's hanging till a final order is released still seems sketchy.  After passing of the provisional order, the Pakistani Foreign Office spokesperson Nafees Zakaria was found stating that in some issues, Pakistan doesn't recognize ICJ's jurisdiction and Jadhav's case is one of national security.

Harish Salva, a senior Supreme Court lawyer who represented India's case in the ICJ stated that the interim order is binding on Pakistan and any breach or violation would invite action by the Security Council. However, that string of hope is tenacious at best, too, as a judgement in the Security Council can be vetoed by any one of its 5 permanent members, and China could very well veto the case in the favour of its ally.

International Law, despite its impressive and logical foundation in facilitating smooth interaction between its member states, fails to impress upon its superiority as it cannot be enforced, like domestic law, by means of proper or effective physical sanction. There's a great scope of contemplation over and improvement upon how the mechanism of the Security Council could be affected, so as to avoid the concentration of power merely among its permanent member states, and so the needs of developing nations are effectively met with.