In the third week of July, theInternational Court of Justice (ICJ) at The Hague delivered its judgment on the Kulbushan Jadhav case. Jadhav, an Indian national, has been in a high security Pakistani prison since April 2017 on charges of spying. The ICJ ordered Pakistan to “make an effective review and reconsideration” of the conviction and death sentence meted out to Jadhav by a Pakistani court and provide consular access to him at the earliest. In the same week, the Pakistani government placed Jamaat-ud-Dawa chief Hafiz Saeed under arrest.
New Delhi has reasons to be pleased with both the developments. The Indian government maintains that Jadhav is a businessman, who, after retiring from the Indian Navy, was engaged in legitimate business activities in Iran when he was kidnapped and taken across the border. The Pakistani authorities, on the other hand, say that Jadhav is a serving Indian Navy commander who was deputed to the Indian intelligence services and that he was captured inside their territory in Balochistan province. They say that he had confessed to being a spy.
Both India and Pakistan claim that the judgment delivered by the 16-member ICJ bench vindicates their stance on the issue. The court in its 42-page order ruled that “a continued stay of execution constitutes an indispensable condition for the effective review” of Jadhav’s sentencing by a Pakistan military court.
The ICJ ruled that Pakistan violated Article 36 of the Vienna Convention on Consular Relations but at the same time stated “it is not the conviction or sentence of Mr Jadhav which are to be regarded as a violation of Article 36 of the Vienna Convention”. The court said that “effective review and reconsideration” of the case could be carried out in many ways. If necessary, Pakistan “should enact necessary legislation” in order to carry out a fair review of the case.
Contentions from both sides
External Affairs Minister S. Jaishankar was quick to claim that the ICJ judgment vindicated the Indian government’s stand that Jadhav had been held illegally by Pakistan. He demanded in Parliament that the Pakistani authorities should “release and repatriate Jadhav forthwith”. He said India “will vigorously continue its efforts” to ensure Jadhav’s safety and well-being and his early return to the country. Pakistan also did not waste any time in announcing that it would be granting consular access to Jadhav “according to Pakistani laws, for which modalities are being worked out”.
The Pakistani side is of the view that besides its ruling for an effective review and reconsideration of the Jadhav case and immediate consular access for Jadhav, the ICJ has rejected all the other major legal remedies that the Indian side had sought. India had argued that no remedy less than the acquittal, release and return of Commander Jadhav would be effective and had questioned the soundness of the Pakistani legal system. It had asked for the annulment of the sentence passed on Jadhav as he was tried by a military court. Reema Omar, the International Legal Adviser for South Asia for the ICJ, observed that the court “rejected most of the remedies sought by India, including the annulment of the military court decision convicting Jadhav, his release and safe passage to India”.
The Pakistan Foreign Office reiterated its position that Jadhav was responsible “for acts of sabotage, espionage and multiple terrorist incidents” and that he had confessed to all his crimes. The only dissenting judge on the ICJ panel, Justice Tassaduq Hussain Jillani, maintained that the Vienna Convention did not apply to those engaged in espionage. Jilani, who hails from Pakistan, was appointed on an ad hoc basis because of the presence of an Indian judge on the 15-member bench.
Pakistan’s Foreign Minister Shah Mahmood Qureshi said Jadhav would remain in Pakistan and tried under Pakistani laws. Reacting to the verdict, Pakistan Prime Minister Imran Khan said that he appreciated the ICJ’s decision “not to acquit, release and return Kulbushan Jadhav to India”. Imran Khan reiterated that Jadhav was guilty of crimes against the people of Pakistan.
Giving the military establishment’s point of view, Maj. Gen. Asif Ghafoor, the Director General of the Inter-Services Public Relations, congratulated the civilian government and its legal team on their efforts. “For the verdict to be upheld by an international court where there is no concept of capital punishment is a big victory for Pakistan. And for them to say that the review and reconsideration can be done by means of our own choosing is great validation of our judicial system,” the ISPR spokesman said.
With the strong backing of the Trump administration, India has been demanding the arrest of Hafiz Saeed. Both New Delhi and Washington have described him as the mastermind of the 2008 Mumbai terror attack and subsequent terror incidents, including the one in Pulwama earlier in the year. Saeed had been arrested a couple of times earlier but had been released quickly. The Pakistani authorities had claimed previously that sufficient evidence was not available to jail him on terrorism charges.
This time, however, Saeed was charged with having close links with two charities involved in financing terrorist activities. Pakistani prosecutors alleged that the two charities acted as “fronts” for the Lashkar-e-Taiba (LeT), a banned terror outfit. Saeed has already been charged with terrorism in several other cases.
The timing of his arrest in early July by Pakistan’s counterterrorism department has a lot to do with the three-day visit of Imran Khan to Washington in the third week of July. Relations between Islamabad and Washington had become particularly frosty after Donald Trump became President.
Trump accused the Pakistani government of taking billions of dollars from the United States even as it had continued to harbour terrorists such as Osama bin Laden. The U.S. government had announced a bounty of $10 million for Saeed’s capture. He was moving around freely in the country until he was remanded in judicial custody for an initial period of seven days.
Trump, however, insisted that Saeed was a fugitive and that his administration had a significant role to play in his arrest. Trump tweeted immediately after Saeed’s latest arrest: “After a ten-year search, the so-called ‘mastermind’ of the Mumbai terror attacks has been arrested. Great pressure has been exerted over the last two years to find him.” Saeed is expected to be in jail at least for the period Imran is visiting Washington.
The Trump administration has apparently had a slight change of heart in the last couple of months regarding Pakistan. Pakistan has played an important role in getting the various factions of the Afghan Taliban to sit down for talks with the U.S. and the Afghan government. Withdrawal of U.S. troops from Afghanistan before he faces re-election in 2020 is a priority for Trump. His administration is fully aware that without Islamabad’s helping hand, this would be a difficult task. Much of the discussions Imran Khan had in Washington focussed on the Afghan problem.
Lifting curbs on overflights
Just before Imran Khan’s departure for Washington, Islamabad made the surprise announcement that it was lifting the curbs on international flights over its territory from July 15. Pakistan had closed its airspace for commercial flights at the end of February following Indian air strikes in Balakot and the rise in military tensions. Pakistan is located on the path of one of the world’s busiest air corridors that is used by hundreds of carriers every day. The Pakistani restrictions on overflights particularly affected Indian carriers, especially the national airline, Air India.
India’s Civil Aviation Minister Hardeep Puri said the loss to the nation’s financially stressed national carrier owing to the closure of Pakistani airspace was Rs.548 crore. Air India was losing Rs.6 crore a day. Pakistan also lost in the bargain. Its Federal Minister in charge of Civil Aviation, Ghulam Sarwar Khan, admitted that Pakistan lost $500 million in the past five months because of the ban on overflights. Airlines pay for overflights. “It is a huge loss for our aviation industry,” the Minister said. “But this restriction hit India harder than Pakistan. The loss for India is almost double. But at this juncture detente and harmony are required from both sides.”
Many international flights, especially those originating from the U.S., were cancelled since the introduction of the Pakistani restrictions. One of the casualties was the daily United Airlines Newark-Delhi flight used by U.S. officials. International flight tickets became prohibitively expensive because of the circuitous routes that the airlines were forced to take. According to reports, U.S. officials played a key role in convincing Islamabad to lift the curbs on overflights.
The Kartarpur corridor
U.S. officials have also conveyed their happiness to Islamabad for permitting the visa free movement of Indian Sikh pilgrims to the Kartarpur shrine. Pakistan and India have agreed to the construction of a “Kartarpur corridor”, which will connect the Dera Baba Nanak shrine in Punjab’s Gurdaspur district to the Darbar Sahib shrine in Pakistan’s part of Punjab. Pakistan is building the road from its side of the border and India from the other side. Kartarpur Sahib is only four kilometres from the Dera Baba Nanak shrine. “Anything that encourages people-to-people contacts between India and Pakistan is something that we are incredibly proud of,” the U.S. State Department spokesperson said.
Difficult circumstances
The latest Pakistani political and diplomatic initiatives are to a great extent dictated by the difficult circumstances the country currently is in. The economy, which was in dire straits, had to be temporarily bailed out by the International Monetary Fund. The Financial Action Task Force, whose task is to monitor international financing of terrorism, has been threatening to blacklist Pakistan.
In an interview with The New York Times in April, Imran Khan said that Pakistan had decided to stop armed militias from operating within its territory to safeguard “the future of our country”. While trying to deny that international pressure had made Islamabad change its policies, Imran Khan admitted that the country could not afford to be “blacklisted”. Imran Khan’s moves have the backing of the powerful army establishment. As the opposition in the parliament keeps on reminding the people, Imran Khan after all is a “selected” Prime Minister, not an “elected” one. Many of the opposition leaders, including Nawaz Sharif, are today in jail. In fact, Hafiz Saeed was sent to Kot Lakhpat jail in Lahore, the same prison where Sharif remains incarcerated.
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