A serving officer of (Lieutenant Commander’s rank) of the Indian Navy (commissioned 1991) involved in subversive activities inside Pakistan, Indian RAW agent Kulbhushan Yadav was captured in Balochistan in March 2016. During videotaped interrogation, Kulbhushan explained his motivation for working for RAW as the attack on the Indian Parliament in December 2001. He admitted in the video that he was involved in acts of violence inside Pakistan aimed at maiming and killing Pakistanis irrespective of whether they were in uniform or non-combatant civilians. Tried by a Pakistan military court he was given the death sentence on 10 April 2017. This was a major security success for Pakistani intelligence agencies.
India and RAW never owned up to this man or to his actions. They even denied that he was caught in Balochistan on the Pakistani side of the border but alleged that he had been abducted from Iran. The International Court of Justice (ICJ) verdict that rejected the Indian demand for Yadav’s release and repatriation implicitly (and by default) accepts the sentence given by a Pakistan military court the only reason for some relief for India is the ruling of “Consular Access” that has been given to India. This decision was because the ICJ did not recognize as valid the bilateral Indo-Pak agreement on Consular Access since it was not registered with the United Nations (UN). The bilateral India-Pak Consular Access Agreement signed by both states in 2008 that explicitly denies consular access to spies. Unfortunately Pakistan did not get this registered with the UN. If Pakistan had registered the law with the UN the involvement of the ICJ would not have been possible. India and Pakistan both probably deferred such a step because both were aware such a situation could happen. Being signatory to the agreement India knew about it but decided to disregard its own law. It is sheer hypocrisy to sign an agreement and then complain when it is used. India tried to somehow slip out of its responsibility by involving the ICJ and for the ICJ to rely on the international media which India has used to assiduously propagate adversely about Pakistan as being a promoter of terrorism. The ICJ verdict on the contrary exposed India as a terrorist state sponsoring terrorism.
Pakistan’s maintained that the Vienna Convention was not applicable to spies. While this is a valid argument it was not accepted by a court. Sitting in relative seclusion and comfort in The Hague while a growingly violent undercover war is being fought, this world is entirely different to the time when the Vienna Convention on Consular Access was signed in 1963 and ratified by 180 countries by 1967. In 1963 when the “cold war” was at its peak. Article 36 addresses communications between Consular Officers and nationals of the sending state. The Convention provides that “consular officers shall be free to communicate with nationals of the sending State and to have access to them.” Foreign nationals who are arrested or detained be given notice “without delay” of their right to have their Embassy or Consulate notified of that arrest and “consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. Earlier the ‘Bay of Pigs failed military invasion of Cuba’ undertaken by the Central Intelligence Agency (CIA)-sponsored rebel group Brigade 2506 had taken place 1961. While state terrorism and hybrid warfare existed even, than with new communication technology and a much more globalized world today these things have reached an entirely new dimension and hybrid warfare is a central aspect of international making relations. The Vienna Convention is outdated, it should be adjusted to the new situation. When the state that is represented by the Consul is the aggressor who has sent the spy or undercover terrorist the question of legality of consular access looks quite different, doesn’t it? Should the terrorist be allowed to meet his handler?
After we just lost our case regarding the “Reko Diq” contract for Pakistan the ICJ verdict is a welcome relief. For India this is another set-back after the botched February air force attack on Pakistan that cost them two fighter aircrafts and one of their pilots fell into Pakistani hands, for them this was a bad defeat. Though Indian media are celebrating the verdict as victory the concerned circles will be very much aware of the reality and will feel the pain. Where do we go now from here? One consequence of the verdict should be that the registration of the Indo-Pakistani Agreement on Consular Access has to be pressed ahead with. While Pakistan acted lawfully from the Indo-Pakistani point of view, that the Indians did not acknowledge their own agreement only emphasises their shifty character. From the humanitarian point of view Pakistan acted responsibly it allowed access to the terrorist’s mother and wife to see him. Moreover the question of state-sponsored terrorism and its legal consequence has to be launched for discussion on the level of the ICJ and relevant UN organizations.
By rejecting India’s demand to overthrow the verdict, ICJ has acknowledged the legality of India being exposed as a terrorist state. This must be made public on all forums, international and in diplomatic circles. Another question is if the death sentence should be executed. In actual fact the mercy petition of Yadav has been kept pending while waiting for the ICJ verdict. However Yadav’s execution will harden the already estranged Indo-Pakistani relations and could meet with a pay-back in the same coin in future. The handling of the Yadav case by Pakistan was exemplary because though there are questions about the jurisdiction of the ICJ, the international court has been respected by Pakistan as will be its verdict. The icing on the cake was inadvertent. By not overturning the verdict of the Pakistan military court which give Kulbhushan Yadav the death sentence ICJ tacitly recognised the legality of the military court and the consequent verdict. By upholding the verdict of Pakistan’s military court, in effect the ICJ gave most important stamp of tacit approval about the court’s legality because of the “war against terrorism”. Terrorists (and their state sponsors) should take note!
