Decoding Pak’s Jadhav stratagem

Vivek Katju

The International Court of Justice (ICJ) ordered Pakistan on May 18 to take "all measures at its disposal to ensure that Mr Jadhav is not executed pending the final decision in these proceedings".  At this stage, India could not have asked for more. The Indian political, legal and diplomatic teams have been successful and deserve to be congratulated

 Pakistan has wanted to use the Jadhav issue to aggressively push its false narrative of Indian sponsorship of "state terrorism" in Pakistan. In so doing it has also sought to unprecedentedly smear the Indian intelligence set-up. These aspects have vastly complicated the matter, making its resolution difficult.

India has had to ensure Jadhav's safety, counter the onslaught on its intelligence establishment and craft innovative responses to Pakistani attempts to erode its international image.  What steps has India taken to handle these different but often interlocking strands? India's ICJ petition and its appendices are revealing as are Pakistan's public remarks, including at the ICJ.

Strand One: Ensuring Jadhav's safety

India's ICJ petition notes that it had information that Jadhav "had been kidnapped from Iran .......and was then shown to have been arrested from Baluchistan." It added the cautionary note: "These matters required verification, the first step for which would be consular access". On March 25, 2016 the Indian High Commissioner met the Pakistan Foreign Secretary who informed him of Jadhav's arrest. The same day India sought consular access to Jadhav. Since then India has rightly persisted with this demand making it the basic thrust of its attempt to ensure his safety.

On April 10, 2017 the Pakistan military announced that the army Chief Gen Qamar Bajwa had, "confirmed his death sentence awarded by the FGCM". Till this announcement, India had sent 12 requests to Pakistan through formal notes for consular access to Jadhav. 

The majority of these notes were sent at intervals of four to six weeks. However, for almost two-and-a-half months between August 22 and November 3 no note was sent. This hiatus is intriguing. The formal notes indicate that India was also making demarches, obviously verbal, for consular access but no details have been given. Hence the two-and-a-half-month gap merits clarification. One more point: India's note of March 3, 2017 to Pakistan refers inter alia to its note of February 2, 2017 but this is not part of the record. This too needs clarification.

Low-key approach

The Indian approach for getting consular access was low key. Jadhav's safety was a clear consideration as well as a desire to let matters cool down after the high-pitch drama enacted by the Pakistani army through Jadhav's confessional video. In normal circumstances, alleged espionage cases are resolved quietly through reciprocal arrangements unless one state has ulterior objectives as Pakistan has had in this instance. 

Strand Two: Countering the assault on Indian intelligence

On March 29, 2016, Pakistan held a press conference at which Lt Gen Asim Bajwa, then Director-General of the military's publicity wing, ISPR and Pakistan's then Information Minister Pervaiz Rashid played an obviously doctored confessional video of Jadhav.  In his comments Bajwa mainly dwelt on Jadhav's activities but he also said that he was being, “directly handled, as per him, by the Indian National Security Advisor, the Indian R&AW Chief and Joint Secretary AK Gupta". Interestingly, in the doctored video Jadhav mentioned Anil Kumar Gupta but not the other two.

Aggressive signals

By referring to the NSA and the Research and Analysis Wing (R&AW) Chief, the Pakistan army sent a very aggressive message to the Indian intelligence community. This approach would have been cleared by the Pakistan army chief and was clearly part of its attempt to show that India was engaged in terrorism in Pakistan being directed by senior Indian intelligence officials. Neither country had dragged in senior-most officers thus in the past.

Interestingly, Pakistan has not publically mentioned the Indian intelligence leadership after the Bajwa comment. It is not clear if allegations against them find mention in the various Jadhav dossiers it has formally given to the UN. It may have seemed that better sense was prevailing in Rawalpindi and it had given up targeting senior Indian intelligence officers. But this was not the case.

...But not part of record

On January 23 this year Pakistan formally sent a request, "seeking support of the Government of the Republic of India in obtaining evidence, material and record for the criminal investigation" in the Jadhav case. India has not made this request public though it has put a copy of the forwarding note in its ICJ petition. For the time being Pakistan too has avoided putting the request letter in the public domain though it has given it to the ICJ judges during the hearing of the Jadhav case. The process it has adopted obviously prevents the ICJ from including it in the public record of the case.

From various statements it can be discerned that Pakistan has directly and specifically named senior Indian Intelligence officers in its request. External Affairs Minister Sushma Swaraj told Parliament, "Earlier this year the Pakistan government levelled charges against senior officials who had no connection to this issue". During oral arguments, the Pakistani counsel Khawar Qureshi disclosed that the number of senior officers was 13. He told the Court, "a cover letter which identified 13 names, names that Commander Jadhav had provided to the Pakistani authorities". How did Pakistan refer to the 13? A hint is contained in the ICJ order of May 18, where it refers to the note of January 23 thus: "On January 23, 2017 Pakistan sent a Letter of Request seeking India's assistance in the investigation process concerning Mr Jadhav and his alleged accomplices". As Pakistan holds Jadhav guilty of terrorism what would his "accomplices" be?

Upping the ante

All this constitutes extreme provocation. India responded by ignoring the letter. Its notes of February 3 and March 3 reiterating the demand for consular access did not refer to Pakistan's request. However, Pakistan decided to "up the ante". In a note of March 21, 2017, Pakistan linked India's request for consular assistance to its request for "assistance in the investigation process and early dispensation of justice". 

The linkage was absurd but India did not say so. In a note sent on March 31, India stated that "consular access was an essential prerequisite in order to verify the facts and understand the circumstances of his presence in Pakistan". Clearly this was a valid approach taken by India for its main focus was on consular access. However, it underlined the continuation of the Pakistani policy of targeting Indian intelligence at the highest levels in this case. It was playing a dangerous game. This conclusion is established by the fact that Pakistan had completed Jadhav's trial process by February 12. Even without the evidence sought through its request of January 23 the Pakistan military court concluded the trial. What was the need then to put forward this linkage, if not to provoke the Indian Intelligence establishment, specifically the 13? 

Gen Bajwa's keen interest

It is noteworthy that all this was undertaken after the present Pakistan army chief Gen Qamar Bajwa's took over in November 2016 from Gen Raheel Sharif. Three hearings of the case were held during Gen Sharif's tenure but no provocative request was sent then nor a linkage drawn between consular access and Indian cooperation in the Jadhav investigation. What then were Gen Bajwa's intentions? He and the new ISI head Lt Gen Naveed Mukhtar surely would have realised the inherent aggression in these moves? Was it to demonstrate to their colleagues that they were, contrary to their images, capable of firm and unbending hostility to India irrespective of its long-term implications? Did having Jadhav in their custody make them completely overlook prudence?

Strand Three: The Jadhav death sentence and its implications.

On April 9, the Pakistan media announced that Lt Col Mohammad Habib, a retired Pakistani army officer had disappeared from Nepal on April 6. It was hinted that he was abducted by R&AW in response to Jadhav's custody. It appears that this is what the Pakistan army believed. In this “game”, perceptions motivate action. On April 10, the Pakistan military announced the confirmation of the death sentence to Jadhav. 

The FGCM recommended Jadhav's death sentence on February 12 and Bajwa had not acted on it for almost two months. His rush to confirm it strongly suggests that it was Habib's disappearance that motivated him to do so. He appears to have perceived it as an Indian Intelligence counter-attack. That Habib’s disappearance led to the death confirmation decision is one possible explanation for the strange Pakistan note the Indian High Commission received on the evening of April 10 in response to its note of March 31. This note completely overlooked the death sentence to Jadhav.  It is identical to the March 21 note suggesting linkage between consular access and Indian cooperation in the Jadhav case. Was it cleared after receiving approvals prior to the confirmation of the death sentence and despatched routinely? These things happen in bureaucracies even in sensitive issues. However, if it was sent deliberately Pakistan only wished to reinforce its confrontationist policy .

The list of terrorist activities which Pakistan has ascribed to Jadhav are so many and comprehensive as to defy common sense. And these are only "some" of those he is supposedly sponsored, directed, funded or abetted. Perhaps it is because of the incredible way Pakistan has built its case that it does not want any scrutiny. All this is nothing but propaganda. It will not help Pakistan change the narrative but only cement bilateral confrontation further. 

India's Plan A & Plan B

Pakistan has little choice but to respect the ICJ decision on provisional measures. The case will now proceed to the full hearing. India's counsel Harish Salve has said that India's plan A is to urge the Court to order Jadhav's release for the denial of consular access has led to the vitiation of the judicial process. Consequently, Jadhav has suffered so much that it will only be just to release him. If the Court goes down this road it will do so, as Salve himself admits, for the first time. 

Hence India's plan B is that the Court states that the denial of consular access makes the conviction unacceptable and suggest that a fresh trial be held. Can there be a fair trial in Pakistan in any Pakistani court for Jadhav, especially after all the hype the case has generated there? 

The wide publicity given to Jadhav’s arrest and the targeting of Indian intelligence by the Pakistan army may have been good tactics but made little strategic sense. Musharraf's Kargil misadventure comes to mind. It was a great tactical move to occupy the Kargil heights in the hope that the Indian Army will compel the government to negotiate and Siachen will come into play. The Indian army disregarded the difficulties and the loss of previous lives and rose to the occasion. The country under Vajpayee's leadership showed the will to make Kargil into an unmitigated strategic disaster for Pakistan. Its consequences should hold a lesson for Pakistan's civil and military leadership. The Jadhav issue is going the way of Kargil for Pakistan. Will the army leadership give up its Bourbon syndrome?

Glimmer of hope

In all this there is a slight sliver of hope. The fact that Pakistan has not as yet publically released the names of the 13 indicates is interesting. Is it holding back because it knows that beyond a point provocation is counterproductive? Is it aware that ultimately the way to handle Jadhav like situations is through reciprocity. That is the universal time honoured method but it will have major repercussions in Pakistan. As that will require the generals to show wisdom for which they are not known. 

The writer is a former Secretary, Ministry of External Affairs.

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Timeline of the Jadhav case in 2016

• March 3: Indian national Kulbhushan Jadhav arrested on the charges of terrorism and sabotage by Pakistan on Iran border.
• March 24: Pakistani army claims Jadhav is a R&AW agent and was picked up from Saravan, near the Pakistan-Iran border.
• March 26: Pakistan summons Indian High Commissioner and releases statement lodging protest on "the illegal entry into Pakistan by a R&AW officer and his involvement in subversive activities in Balochistan and Karachi."  
• March 29: Pakistan releases Jadhav's confession statement video. He is seen as saying that he is a serving Indian Nav officer and operative of the R&AW. India questions the legitimacy of the video. 
• April: Balochistan's provincial government files an FIR against Jadhav.

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.... and in 2017

• March 3: Sartaj Aziz affirms to the Pakistan senate that Jadhav will not be extradited to India. India asks Pakistan to follow well-established international practices. 
• April 10: Pakistan's military establishment announces Jadhav would be hanged. A "military court" found him guilty of "espionage and sabotage". India sends a demarche to Pak High Commissioner Abdul Basit, stating Jadhav was "kidnapped last year from Iran", and his trial was "farcical" in the absence of any evidence against him. 
• May 15: At the ICJ hearing, India demands immediate suspension of Jadhav's death sentence, expressing fears that Pakistan could execute him even before the the court gave its verdict. Pakistan contends that the Vienna Convention provisions on consular access were not intended for a "spy. 
• May 18: ICJ stays death sentence given to Jadhav.