Wednesday, 17 May 2017

The Curious Case of Kulbhushan Jadhav


India and Pakistan’s diplomatic row has reached to another level. After 46 years, since 1971, India for the first time has approached the International Court of Justice, Hague, in the hope of resolving an issue that could have been possibly solved through bilateral negotiations and backdoor diplomacy. While mentioning this, the author acknowledges the fact that there is every possible chance that backdoor diplomacy might have been tried but failed to yield any results – unfortunately, such actions cannot be brought to public light... just yet.

The issue in question is the Kulbhushan Jadhav’s death sentence row by Pakistan’s military tribunal. While Pakistan claims that he is a RAW agent, sent by India to create unrest in Balochistan; India maintains that he is an ex-Naval officer who owned legitimate business in Iran and was abducted by ISI near Pakistan border. There is contention on both sides – whether he was illegally in Pakistan at the time of his capture or snatch – terminology depending on the intent.

*Courtesy DG ISPR website

The Indian passport in question mentions his name as Hussein Mubarak Patel. This raises more question than it answers. Also, there has been no open decry (that the author is aware of at the time of penning this article) from Indian side against denying the fact that Hussain Mubarak Patel and Kulbhushan Jadhav are two different persons. Here lies a fundamental question on which Pakistani arguments and allegations lie – Why the same person has 2 different names or rather an alias? What was he doing near Pakistani border in Iran? Also his past as an ex-Naval officer doesn’t help much to save him, but raises more suspicion in the mind of the Pakistani establishment.

Even though a lot of reasoning can be provided around his legitimate presence including business that he owns near Indian developed Chabahar Port in Iran (strategically to counter China’s involvement in Pakistan’s Gwadar Port some 50 km away), it still becomes a point of contention – why was the person travelling under the Indian passport that bears his name as Hussain Mubarak Patel instead of Kulbhushan Jadhav? Is it a Pakistani ploy to mislead India? Was there any maleficent intent on the part of the person in question? Did he really pose any legitimate threat to the sovereignty of Pakistan? Well, it will be folly to speculate or answer the question – as whatever possible logical conclusion that might be construed will be without facts to support in the public domain. It will be the only select few at the top echelons at both sides of the government who are fully aware of the truth at this stage.


*Courtesy Asian Age

Now, for the sake of argument – there are four possible theories:
  1. Kulbhushan is innocent and no agent of RAW
  2. Kulbhushan is innocent at the time of capture but might have different objective
  3. Kulbhushan is a legitimate entity, assisting Indian foreign policy, but was in Iranian soil at the time of capture
  4. Kulbhushan is guilty as charged by Pakistan

Irrespective of the whether Kulbhushan is guilty or not, he should have been provided Consular Access by Pakistan under Vienna Convention that was denied. It no doubt is a violation of Human Rights. Hence, this calls for review of the legitimacy of the verdict passed by the Pakistani Military Tribunal – which is nothing but a sham (compare this with the open trial of Kasab). This is the cornerstone on which esteemed lawyer Harish Salve has set across his argument that has been hailed as an initial victory for India; which led to the denial of Pakistan playing the supposed confession tape (in all probability obtained under duress) in front of the judges.

But it is not the time to celebrate for India yet, unfortunately. There are dangerous precedents that can be set in motion (you can read it here). There is a pretty good chance that India might lose this case. In all probability, Pakistan might still go ahead and execute Mr. Jadhav disregarding the ICJ ruling even if it’s in India’s favour, or might decide to use him as a bargaining chip in the long run. Kulbhushan Jadhav’s future doesn’t look bright right now, but it is still heartening to see that he is garnering the attention he deserves as an Indian national under foreign imprisonment unlike Sarabjeet Singh or so many umpteen fishermen who are often caught straying into Pakistani waters unknowingly.

Every covert operative is aware of the dangers of operating in the shadowy circumstances and the disavowing protocol of plausible deniability if caught, but that should not lead to any action at all – which has been the Indian stance so far in the last 70 years of independence. There has been the famous case of the American spy Gary Powers who was caught by USSR flying a U2 Recon plane over Russia at the heights of Cold War in 1960-62.  He was eventually swapped with a Russian spy in 1962 after spending almost 1yr 9 months in captivity. Here lies some hope.

If all else fails, there should be an ace up the sleeve that India should be able to utilise effectively and efficiently to ensure that Kulbhushan Jadhav is returned unharmed back to India. Hoping, Lt Col (retd) Mohammed Habib Zahir working for Pakistan’s ISI and supposedly part of the team that captured Kulbhushan Jadhav is possibly that ace – whom Pakistan claims to have been abducted by India from Nepal in a bid to arm-twist Pakistan into submission. Let’s hope it’s true; but hope against all hope – let’s hope it will not come to that. If it does, then let’s be hopeful of an Indian version of Gary Powers. Finally, let’s pray that Kulbhushan, the son of India returns unharmed. All’s well that ends well!

N.B. A detailed transcript of the application submitted by India before the ICJ can be found here.

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