ICJ Verdict: What it says, and what it doesn’t

Pakistan's legal teamThe International Court of Justice has responded to India’s case in the matter of alleged RAW spy Kulbushan Jadhav. India approached the ICJ after Jadhav was sentenced to death for his involvement in terrorist activities in Pakistan. The response has been celebrations in India, and outrage in Pakistan. Neither are warranted by the facts.

Here is the actual order of ICJ. Please read the contents carefully before going on.

ICJ order page 1ICJ order page 2ICJ order page 3 All the ICJ has declared at this point is that Jadhav should not be executed until the full proceedings are complete. He has not been acquitted, and he has not been freed. Obviously, we wanted the case not to be accepted, but this is not necessarily a defeat. Actually, the Court can still find completely in Pakistan’s favour after hearing all arguments which would be a much bigger defeat for India because it would leave no doubt. With that explained, it is worth revisiting some of the details of the case so that we can understand why there is so much confusion.

Let us be honest with ourselves. There have been questions about the way that Kulbushan Jadhav case was handled since day one. The surprise announcement of Jadhav’s death sentence may have been what the country wanted to hear, but it left more questions than answers. As I wrote at the time:

Why was the accused denied consular access per diplomatic norms? Does the fact that the weak ‘video confession’ is being promoted again mean that this is the only evidence we have? If the case against Jadhav was strong, why keep the evidence hidden away in secret military trials and classified ‘dossiers’?

None of these questions mean Jadhav was innocent or that he should be released. But as I warned at the time, the secret nature of the proceedings was going to haunt the proceedings. It is easy for us to accept the obvious, but that is because we have been conditioned to believe that RAW is responsible for terrorism in Pakistan by an endless media campaign by TV anchors, politicians, and military officers. The rest of the world, however, is not so certain.

We can blame the entire world’s inability to see things the way we do on a grand global conspiracy, or we can ask why we see things one way and the rest of the world sees them differently. Right now there is a debate about this going on as some are pointing out what we could have done better in the ICJ.

London-based Barrister Rashid Aslam says Pakistan was ill-prepared and did not utilise the 90 minutes it had to make its argument.

“Pakistan had 90 minutes of argument time but we wasted 40 minutes,” said Aslam. He added: “I was surprised why we finished our arguments in such little time. I think Khawar Qureshi didn’t consume all the time that was afforeded to him.”

He added: “Pakistan had the right to set up a judge there but we didn’t do that. I think Pakistan was grossly unprepared.”

Could part of the reason that we were grossly unprepared be that we believed it was an ‘open and shut’ case based on our own media narrative? If we prepared our case with the assumption that we would actually have to convince a sceptical audience, what would we have done differently? Exploring these questions could help us be better prepared for future global engagements including on issues like Kashmir.

Unfortunately, there is another more popular response that is being promoted. It is the one voiced by retired Justice Shaiq Usmani:

“It’s Pakistan’s mistake to have appeared there. They shouldn’t have attended.”

Rather than do the hard work of convincing someone who isn’t already convinced, we could just turn our backs on the rest of the world. We are already convinced, so why bother trying to convince anyone else. Who needs our critics to accuse us of being isolated when we have retired Justices suggesting that we isolate ourselves?

It is important to remember that the ICJ has not acquitted or released Jadhav, nor is the case finished. Actually, it is only beginning. We still have a chance to present our arguments and evidence. If we want to convince the world that we are telling the truth, though, we need to start by giving up the clever narrative management operations that continue to create confusion when things don’t go the way we are conditioned to expect them to. After all, if we aren’t secure enough to allow tough questions at home, how will we ever be able to answer them in an international forum like ICJ?

Jadhav Death Sentence: Show of Strength…or Weakness?

kulbhushan jadhav

Indian national and alleged spy Kulbhushan Jadhav has been sentenced to death. It is a surprise news not because of the outcome, but because it is the first time most have even been aware that there was a trial. This is because the trial and sentencing were conducted in secret proceedings by the military. It is not my intention to question the results of these proceedings. As far as I know, Commander Jadhav is a spy and is guilty of the things he is accused of. However, also as far as I know, he is not. This is the problem. And while the accused will suffer the most from the situation, I believe we, too will not come out of it without our own scars to show.

There will be many reasons given to justify the secret military trial, most of which will point to reasons of national security and protection of counter-terrorist intelligence operations. These may be part of the rationale, but I do not believe they account for everything. Rather, I think this entire affair has been conducted in a manner intended to avoid a repeat of the Raymond Davis fiasco. In that situation, an admitted spy who killed two ISI men in broad daylight was given access to his Embassy and public trial by a civilian court. As a result, the accused was ultimately freed in a deal arranged by DG-ISI Lt Gen Shuja Pasha. The aftermath of the Raymond Davis episode has not been forgotten, either by the public or state officials. Protestors took to the streets across the entire country, and the credibility of the state suffered as it was seen as showing weakness before the American empire.

Kulbhushan Jadhav’s case is on the one hand more serious than the Raymond Davis case, and the other hand much weaker. For long, Pakistani leadership has pinned the blame for terrorism, particularly in Balochistan, on ‘foreign governments and intelligence agencies’. In 2015, Army specifically blamed RAW for instigating terrorism in Pakistan. With the arrest of Jadhav a year later, it seemed like the Army finally had their proof.

Soon after Jadhav’s arrest, though, things began to break down. ISPR released a ‘video confession,’ but that only raised more questions than it answered. Why, for example, would an Indian agent refer to terrorist activities in Pakistan as “anti-national”? And why was the confession recorded in English? Authorities were convinced that they had the proof they needed, though, and were prepared to take their case to the UN and finally put India in its place. Then came the famous admission of Sartaj Aziz in December 2016 that agencies had “insufficient evidence” to prepare a dossier against Jadhav.

Then, three months later, Sartaj Aziz announced that a FIR had been registered and Jadhav would be prosecuted. Now, only a few weeks later, the entire case has been concluded and the accused has been convicted and sentenced to death in what has to be the fastest trial ever conducted in history of Pakistan. Obviously, it was all done behind closed doors. Who knows what the facts are? Our only choice is to accept the word of the Army who has an obvious interest in seeing the accused convicted and executed. The entire national security narrative has been built on the back of this one man, along with the credibility of the military’s anti-terrorist strategy which has been called into question again due to skyrocketing terrorist attacks.

Given only one choice, we are unable to be truly convinced. As a consequence, there will remain a lingering doubt. Did we sacrifice an innocent man in order to protect a narrative? Why was the accused denied consular access per diplomatic norms? Does the fact that the weak ‘video confession’ is being promoted again mean that this is the only evidence we have? If the case against Jadhav was strong, why keep the evidence hidden away in secret military trials and classified ‘dossiers’? These are questions that will haunt the proceedings. The more one looks at the facts, the more it looks like Kulbhushan Jadhav has been convicted and sentenced in a manner scripted to make the state look strong against India, but the way it was handled could unintentionally result in the opposite.

Recent Spy Stories Need Better Script Writers

During the past few weeks there have been a couple of particularly sensational developments regarding RAW involvement in Pakistan. The timing could not have been more perfect as we had previously witnessed the case of the disappearing evidence and the case of the disappointing dossiers.

First was the capture of alleged RAW agent Kulbhushan Jadhav AKA Hussein Mubarak Patel. Any doubts about Agent Kulbushan’s true activities were wiped away when ISPR released his video confession.

The video is impressive and is fool proof evidence for many people, but after watching the video many others have begun to have their doubts. There are a few questions that are hard to answer.

If this is a video confession, why did ISPR spend so much effort in the editing and production? There are multiple camera angles, sound effects, editing in different photographs, and subtitles. Actually it is the last one that first drew some questions, not because there are subtitles but because the subtitles are necessary since the confession was given in English. Why is an Indian agent giving a confession in Pakistan in English? Was this confession scripted for a foreign audience?

The alleged RAW agents words, too, raised some eyebrows. If he is a RAW agent, why did he repeatedly say that he was working for “anti-national activities”? For an Indian, anti-national would not be anti-Pakistan. And his description of his activities too is very strange. He says that he was working for “deteriorating law and order situation” and that he was carrying out “activities which are criminal which are anti-national which can lead to maiming or killing of people within Pakistan”. Is he reading a charge sheet or giving his own words? Later he even confuses his story by saying that he “became aware of RAW activities” and was following orders of his “handlers in RAW”. However earlier he said that he was “directing various activities in Balochistan and Karachi” and that he was “the man for Mr Anil Kumar Gupta who is the Joint Secretary RAW”. He also says that he “commenced intelligence operations in 2003” but later says he was “picked up by RAW in 2013”, ten years later?

All of these questions and more have created serious doubts about whether Kulbushan’s confession was authentic or was it a combination of scripts by a couple of Brigadiers which is why there seem to be multiple story lines and wrong phrases like “anti-national”. Is this the reason that, despite such ‘fool proof evidence’, the world has completely ignored ISPR’s video?

If Kulbushan Jadhav was an unreliable witness, the next proof of RAW activities to come forward would surely get the world’s attention. A few days ago a key former UK diplomat who worked closely on the issue revealed that Altaf Hussain told the British government that he was a RAW agent supporting insurgents in Balochistan.

UK diplomat Once again, though, questions began to be raised about the authenticity of the story almost immediately. The “key former UK diplomat” turned out not to be a UK diplomat at all.

Background investigation by this scribe reveals that Shaharyar Khan Niazi worked at the British High Commission for nearly 12 years. He gained experience and influence in the process and it was in 2010 that the British government took the unusual step of making him the deputy head of mission as the UK went for austerity measures and appointed many bright non-British diplomats in their missions abroad.

Once again, the story began to smell strange as the same journalist who reported Shahryar Khan Niazi’s revelations had only a few days early filed a report saying that he ‘quit his job in mysterious circumstances and its believed that he has been under pressure ever since in Pakistan to remain quiet about his time at the heart of the decision making with reference to Karachi’. Now he has suddenly resurfaced only to read a very familiar script.

News reports have become like cheap TV dramas using recycled scripts. Like the Kulbushan Jadhav ‘confession’, the world has completely ignored Shahryar Khan Niazi’s revelations also. Is it because of a Western conspiracy against Pakistan? Or could it be that the world is simply not interested in these low-budget dramas? This all may be beside the point, though. There is also increasing chatter among analysts that none of these productions were actually for export. They were created for the domestic market only.