Kulbhushan Jadhav was arrested by Pakistan on charges of espionage. India appealed to the International Court of Justice for his release. Photo: Asia Times/ Ankur Tanwar

The International Court of Justice (ICJ) at The Hague finally ruled in favor of India’s plea to get access to Kulbhushan Jadhav, a former naval commander currently in Pakistan’s custody and facing a death sentence. The ruling came on Wednesday afternoon, when the court ruled by a majority of 15-1 that India must be granted consular access to Jadhav. For the two South Asian neighbors who nearly went to war in February this year, Jadhav’s capture under mysterious circumstances has been a major flashpoint for nearly two years.

While Indian and Pakistani diplomats have ruled out any possibility for releasing Jadhav, there could be an exchange of “spies” in the future, top Indian government sources told Asia Times. There was an offer to send Jadhav back to India from Pakistan in October 2017. However, Pakistan insisted that India must acknowledge that Jadhav was sent to carry out terror attacks. India refused and the deal fell through.

Swapping intelligence assets

However, the disappearance of a Pakistani intelligence officer from Lumbini in Nepal in April 2017 could hold the key. Lieutenant Colonel Mohammed Habib Zahir, who was part of Pakistan’s Inter-Services Intelligence (ISI). Investigations by Pakistan revealed that Zahir was following up on an offer to work with an international firm known as Strategic Solutions Consultancy. Zahir traveled to Nepal in April 2017 for further negotiations and disappeared soon after. Top government sources say that a third country could be an intermediary for India and Pakistan to negotiate Jadhav’s release by using Zahir as leverage.

While the Indian government reacted with jubilation at the temporary victory, most experts agree that getting Jadhav back safely to India seems like an insurmountable task. “The court has upheld India’s claim that Pakistan is in egregious violation of the Vienna Convention on Consular Relations, 1963, on several counts,” Raveesh Kumar, the official Indian foreign office spokesman, said while reading out from a prepared text. “We also appreciate the direction of the court that Pakistan should review and reconsider the conviction and sentence given to Jadhav by the Pakistani military court.”

Bilateral relations between India and Pakistan are at their lowest in over a decade after terrorists killed 40 Indian policemen in Pulwama, Kashmir, on February 14. On February 26, India retaliated, sending fighter jets to bomb an alleged militant camp in Balakot, a small town in the Khyber Pakhtunkhwa province of Pakistan. The next day Pakistani fighter jets tried to retaliate by dropping bombs near an Indian army brigade headquarters. Air space on both sides of the border was shut down, forcing civilian aircraft to take a circuitous route, as tensions continued to peak.

Ironically, the ICJ ruling comes on a day when Pakistan arrested Hafeez Sayeed, a designated international terrorist who founded the terrorist group, Lashkar-e-Toiba (LeT). It has been accused of various acts of terror in the Kashmir Valley as well as carrying out a major attack in Mumbai in November 2008. Sayeed had been set free a little over a year ago, and had even set up a political party to contest the general elections.

The alleged spy

According to Pakistani authorities, Jadhav was “arrested” on March 3, 2o16, from Balochistan, the province that borders Iran. He was caught with a valid Indian passport, but under an assumed Muslim name, Hussain Mubarak Patel, that has never been fully explained. However, the registered address on the passport was Jadhav’s residence in Mumbai.

Jadhav was quickly tried by a military court and sentenced to death. In several television appearances, he was forced to confess that he was a spy for India and also named the then serving external intelligence chief Anil Dhasmana. India warned Pakistan that if the death sentence is carried out, it will be “premeditated murder.”

No one really knows what Jadhav was up to before he surfaced in Pakistan as a prisoner of the ISI. For decades the ISI and India’s external intelligence agency, the Research and Analysis Wing (R&AW) have gone head to head in a protracted conflict that has lasted since 1947. While the ISI was born soon after independence in 1948, the R&AW emerged in 1968. Since then the two agencies have played a significant role in bilateral relations.

In 1971, the R&AW stepped up training of Bengali insurgents from erstwhile East Pakistan. This led to the 14-day-war in December 1971, and the creation of Bangladesh. For Pakistan, the loss of its eastern wing was a body blow and the ISI continued its efforts to separate Kashmir from India. The role played by the ISI along with the CIA in aiding the Mujahideen in Afghanistan after the Soviet invasion gave it new tools and methods to step up its campaign against India.

Naturally, the intelligence wars intensified, and after 1990, the Kashmir insurgency in India worsened relations between the two nuclear-armed neighbors. It also created a new wave of terrorism, with India alleging that the ISI sponsored terrorists to carry out strikes. Matters came to a head on November 26, 2008, when 10 terrorists from Pakistan attacked India’s financial capital, Mumbai. One of the terrorists, Ajmal Kasab, was apprehended alive. Pakistan sought consular access to Kasab after denying that he was their citizen. However, the Pakistani media was quick to accept the fact that Kasab was indeed from Pakistan.

Indian intelligence officials remain tight-lipped about Jadhav. But privately, many of them familiar with the issue point out that Jadhav’s details don’t add up to a classic intelligence operation. “If he was an agent, he would not have been sent with a valid passport, that also records his real address,” a senior Indian intelligence official pointed out. “That goes against the grain of any intelligence operation and would be part of basic tradecraft.”

The official complaint, called a First Information Report, was filed in September 2017, more than a year after Jadhav was picked up. The official complaint names a number of Indian officials that has added to the confusion. It names Admiral Sureesh Mehta, who retired from service nearly a decade ago. It also names Indian National Security Advisor (NSA) Ajit Doval and former R&AW chief Alok Joshi. Admiral Mehta served under the previous government, long before Doval took over as the NSA under prime minister Narendra Modi. Joshi served both governments, but Jadhav was captured long after Joshi retired from service. “None of the details in the official documents make any sense,” a senior Indian security official said. “The names in the official complaint are from different time periods, and were in no position to coordinate with each other,” this official said.

What has also flummoxed Indian officials is his presence in Balochistan. Officials claim that Jadhav took early retirement from the Indian Navy and went into private business several years ago. He shifted to Iran and used to work in trading when he was “kidnapped” by Pakistani agents. Iran also issued a diplomatic protest after the news of Jadhav’s capture became public.

While India has alleged since 1990 that Pakistan sponsors terrorism, Islamabad has claimed that the Indian spy agency R&AW has been creating trouble in Balochistan, a border province rich in natural resources and home to the strategic Gwadar port. The Balochis are an indigenous tribe that has traditionally opposed Pakistan’s rule and has been carrying out subversive actions against the military. Pakistan claims that India supports this indigenous resistance movement.

A legal wrangle

The ruling by the ICJ does little to alleviate India’s attempts to secure Jadhav’s release. The military court system in Pakistan is secretive and trials are always held in camera. It also has a dubious legal standing and is not recognized by international law frameworks as a legitimate trial court. This prompted the ICJ to direct Pakistan to look at Jadhav’s conviction afresh.

The ICJ also refused to recognize a 2008 bilateral agreement between India and Pakistan that does not allow consular access to spies caught by either country. The ICJ ruled that the agreement could not be recognized as valid since it was not registered with the United Nations. This went in India’s favor.

Indian diplomats agree that this is only a temporary reprieve. “Jadhav’s case is in a grey zone,” a senior diplomat familiar with the case told Asia Times. “Whatever evidence was submitted in the military court that tried him has not been shared with India. From what we know, they don’t even have any circumstantial evidence. All they have is a valid Indian passport with a different name. That prompted the ICJ to stay his execution until this matter is disposed of,” the diplomat said.

Jadhav’s predicament also puts Indian Prime Minister Narendra Modi and his Pakistani counterpart Imran Khan in a piquant situation. Modi has steadfastly ignored Khan at all multilateral meetings since the Pulwama terror attack in February this year. An execution could put any hope for peace between the two countries in a deep freeze. Both leaders also see the Jadhav issue as a matter of personal prestige that could impact their standing in domestic politics and their international standing.

Indian officials say that only unconventional methods can defuse the situation. “At best, India and Pakistan can agree to an exchange of intelligence assets. India could release a captured spy to secure Jadhav’s release. However, that too seems like a distant possibility for now.

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