FB   
 
Powered bysps
        Society for Policy Studies
 
 

 
Kulbhushan Jadhavís execution stayed: Moral victory for India, but his fate remains in the hands of Pakistanís generals
Posted:May 18, 2017
 
Print
Share
  
increase Font size decrease Font size
 
“The fatal conceit of most spies is to believe they are loved”, wrote historian Ben Macintyre, reflecting on the great Soviet spy Kim Philby “in a relationship between equals, and not merely manipulated”.
 
In the decades to come, should a historian discover in an archive that Kulbhushan Sudhir Jadhav was indeed an Indian spy, she will overturn one of the great axioms of espionage. Few governments, Indian or otherwise, have fought as hard for the lives of their citizens as New Delhi has done for Jadhav—those in the secret service are, by custom, abandoned to the torturer’s custody.
 
New Delhi will, with reason, see Thursday’s International Court of Justice (ICJ) judgment in the Jadhav case as considerably more than a legal verdict. The actual gains from the judgment are modest: The Hague, in line with precedent, has called on Pakistan not to execute Jadhav until it hears both countries’ arguments on whether or not he should be granted access to Indian diplomats, a right under the Vienna Convention on Consular Relations.
 
For Pakistan’s generals, though, this judgment poses a stern test. Having set up the Jadhav prosecution as part of a high-decibel campaign to wreck Prime Minister Nawaz Sharif’s efforts to seek rapprochement with India, they will now have to make a hard choice: they could either push forward with the execution and risk international opprobrium or back down, angering their own constituency of hard line nationalists and Islamists at home.
 
Legal judgments by The Hague have long been defied by major powers: the United States has flouted orders on everything from proxy wars to the Vienna Convention. Beijing only recently defied binding international tribunal orders on the South China Sea.
 
To get a sense of what choices Islamabad faces, it’s important to get a sense of what the The Hague has actually said. Its orders build on its 2003 orders in the Avena case and Mexico’s intervention on behalf of 54 of its citizens awaiting execution in the United States. In that case, all 54 death-row prisoners had been denied consular access under the Vienna Convention, just as Jadhav was.
 
In February, 2003, the Court ordered provisional measures in the case of three of the 54 prisoners at imminent risk of execution, asking the United States “to take all measures necessary to ensure that Mr. Caesar Roberto Fierro Reyna, Mr. Roberto Moreno Ramos and Mr. Osvaldo Torres Aguilera are not executed pending final judgment in these proceedings”.
 
This is exactly what The Hague has done in the Jadhav case, too. It rejected Pakistan’s claim that the Vienna Conventions do not apply to alleged spies and terrorists—there are no such exceptions in the treaties. It also shot down Pakistan’s contention that a 2008 agreement between the two countries overrides the Conventions.
 
In coming months, these issues will be argued by lawyers for the two countries at The Hague.
 
From the Avena judgment, we have a good idea what to expect from those hearings. In 2004, The Hague ordered the United States to provide “by means of its own choosing, review and reconsideration of the conviction and sentence, so as to allow full weight to be given to the violation of the rights set forth in the Convention”. Put simply, this meant the United States had to grant consular access—but its own judicial system would decide whether or not the denial of access had a material bearing on the sentencing or not.
 
Islamabad could live with a judgment of this kind, should it choose to: after all, it could grant Jadhav consular access, and then have another military uphold the validity of his sentence.
 
The United States Supreme Court, in 2008, held that The Hague’s orders could not prevail over domestic law, clearing the way for the execution of some of the prisoners on whose behalf the Avena case had been fought. It is conceivable that Pakistan’s Supreme Court could also go down the same road.
 
In the final analysis, Kulbhushan Jadhav’s life remains in the hands of Pakistan’s generals who seized him from Iran, victories in courtrooms notwithstanding. India has had the satisfaction of a moral victory at The Hague, but in geopolitics, moral victories are hard to distinguish from no victory at all.
 
Indian Express, May 19, 2017
 
 
 
 
Print
Share
  
increase Font size decrease Font size
 

Disclaimer: South Asia Monitor does not accept responsibility for the views or ideology expressed in any article, signed or unsigned, which appears on its site. What it does accept is responsibility for giving it a chance to appear and enter the public discourse.
Comments (Total Comments 0) Post Comments Post Comment
Review
 
 
 
 
spotlight image India’s Vice President Mohammed Hamid Ansari visited Armenia recently to celebrate 25 years of diplomatic relations between the two countries.
 
read-more
The US has slammed Pakistan for failing to crackdown on terror groups operating from "safe havens" inside its territory, and said the Nawaz Sharif government did not take any action against the LeT and JeM, which continue to operate openly.
 
read-more
In dispatching its  PLA (Peoples Liberation Army)  marines to Djibuti in the Horn of Africa on Wednesday (July 12 ) by amphibious ships, from the southern port of Zhanjiang, China has taken a significant step in enhancing its  trans-border military footprint.
 
read-more
It is becoming increasingly obvious that China is experiencing a sort of superiority obsession, imagining it can dominate and conquer the world. Several Chinese acts in the recent past indicate such an attitude. Asian nations, which are now apprehensive about China’s aggressive postures, are unclear how matters will shape up.
 
read-more
Men of letters have outstanding world views, but sometimes their views on the situation in the Valley are coloured by lack of practical appreciation of the ground reality.
 
read-more
For many of us in India — and, indeed, in the rest of the world — the Chinese economic story has been seen for what it is: a country determined by its leadership’s sheer will to lift its people first out of paddy fields
 
read-more
IS retired Gen Raheel Sharif commanding a ghost army? Government representatives have insisted that so long as the terms of reference of the Saudi-led Islamic Military Alliance to Fight Terrorism are not finalised, Pakistan’s participation cannot be determined.
 
read-more
  The U.S. administration’s decision to slap sanctions on 18 Iranian individuals and entities on Tuesday, only a day after it certified to Congress that Tehran was compliant with the conditions of the nuclear deal, sums up its strategic resolve in taking on the Islamic Republic and the tactical dilemma it faces while doi
 
read-more
S.T. Lee Distinguished Lecture of the Lee Kuan Yew School of Public Policy, Singapore on "India, ASEAN and Changing Geopolitics”
 
read-more
Column-image

Interview with Hudson Institute’s Aparna Pande, whose book From Chanakya to Modi: Evolution of India’s Foreign Policy, was released on June 17.

 
Column-image

This is the continuing amazing spiritual journey of a Muslim man from Kerala who plunged into Vedic religion after a chance encounter with a Hindu mystic under a jackfruit tree in the backyard of his house when he was just nine. It is a story w...

 
Column-image

History is told by the victors but in our modern age, even contemporary events get - or are given - a slant, where some contributors soon get eclipsed from the narrative or their images tarnished.

 
Column-image

Humans have long had a fear of malignant supernatural beings but there may be times when even the latter cannot compare with the sheer evil and destructiveness mortals may be capable of. But then seeking to enable the end of the world due to it...

 
Column-image

Title: Reporting Pakistan; Author: Meena Menon; Publisher: Viking/Penguin Random House; Pages: 340; Price: Rs 599

 
Subscribe to our newsletter
Archive