How New Delhi went to the Hague to save Jad­hav

From giv­ing up on ef­forts at get­ting a Pak lawyer to a se­ries of meet­ings, plan­ning and draft­ing of pe­ti­tion to In­ter­na­tional Court of Jus­tice, how it un­folded

The Indian Express - - N.E.W.S. - SHUB­HA­JIT ROY

IT WAS a quiet Satur­day on April 15, five days af­ter Kulb­hushan Jad­hav had been sen­tenced by the Pak­istan’s mil­i­tary court, when the In­dian High Com­mis­sion in Is­lam­abad sent an SOS to South Block. The mes­sage: No one in the Pak­istan court was will­ing to lawyer the case as the La­hore High Court Bar As­so­ci­a­tion had told lawyers against ac­cept­ing the brief, the bar chief hav­ing warned them that who­ever did so would have his mem­ber­ship can­celled.

It was over the next 24 hours, as New Delhi ob­served the Easter week­end, that the pos­si­bil­ity of ap­proach­ing the In­ter­na­tional Court of Jus­tice at the Hague be­came a “dis­tinct pos­si­bil­ity”.

“Un­til then, we were ex­plor­ing le­gal op­tions in Pak­istan’s ju­di­cial sys­tem, from fil­ing an ap­peal in the mil­i­tary court to ap­proach­ing the Pak­istan’s civil courts — ei­ther by the In­dian gov­ern­ment or Jad­hav’s fam­ily or hu­man rights ac­tivists or or­gan­i­sa­tions. But that op­tion seemed re­mote af­ter the lawyers’ as­so­ci­a­tion de­ci­sion,” a top source told The In­dian Ex­press.

Pres­sure was on South Block of­fi­cials, as Ex­ter­nal Af­fairs Min­is­ter Sushma Swaraj had told Par­lia­ment ear­lier that week, on April 11, that the gov­ern­ment will “go out of the way” to en­sure jus­tice for “son of In­dia” Jad­hav.

Lead­ing to In­dia’s de­ci­sion to ap­proach the In­ter­na­tional Court of Jus­tice were a se­ries of meet­ings and events, and plan­ning.

The meet­ings had started on April 10, at var­i­ous lev­els, and op­tions were tossed around through the week. Al­most ev­ery sce­nario had been thought through when In­dia re­alised on April 15 that it would be dif­fi­cult to get a lawyer for Jad­hav.

So, of­fi­cials were asked to ex­er­cise all avail­able diplo­matic op­tions so that a case could be built for ap­proach­ing the ICJ. On April 19, for­eign sec­re­tary S Jais­hankar sum­moned Pak­istan en­voy Ab­dul Ba­sit to pro­vide cer­ti­fied copies of the chargesheet, pro­ceed­ings of the Court of In­quiry, the judg­ment and the sum­mary of ev­i­dence; pro­vide the pro­ce­dure for ap­peal to the rel­e­vant court; fa­cil­i­tate the ap­point­ment of a de­fence lawyer; pro­vide a cer­ti­fied copy of med­i­cal re­port; is­sue visas to mem­bers of the fam­ily.

Mean­while, the de­fence ad­viser at the In­dian High Com­mis­sion in Is­lam­abad, Bri­gadier Arvind Bha­tia, and his team were asked to get a sense of things from the Pak­istan mil­i­tary. Around April 20, Bha­tia told South Block that the Pak­istan Army spokesper­son, Ma­jor Gen­eral Asif Ghafoor, had told Pak­istan me­dia there was “no chance” of the ver­dict on Jad­hav be­ing “over­turned” since it was based on “in­con­tro­vert­ible ev­i­dence”.

This re­flected the hard­en­ing of the Pak­istan mil­i­tary’s po­si­tion on Jad­hav, who had been so far de­nied con­sular ac­cess. The de­fence ad­viser and his team sug­gested there was no point ap­peal­ing since the ap­pel­late court would be headed by a two-star gen­eral — ju­nior to Pak­istan Army chief Qa­mar Javed Ba­jwa and, there­fore, un­likely to give a de­ci­sion con­trary to what the chief had al­ready ap­proved.

As the pres­sure built up, so did the In­dian es­tab­lish­ment’s wor­ries. While In­dian diplo­mats told top ech­e­lons of the gov­ern­ment that Pak­istan was un­likely to ex­e­cute Jad­hav as they per­ceived him as a “lever­age” for them, many in Delhi wor­ried that they should not take that for granted.

Over the next few days, the gov­ern­ment asked for con­sular ac­cess again and got Jad­hav’s mother Avanti to file a mercy pe­ti­tion, as well as visas for trav­el­ling to Pak­istan. In­dian high com­mis­sioner Gau­tam Bam­bawale handed over, on April 26, the ap­peal and the pe­ti­tion to Pak­istan for­eign sec­re­tary Tehmina Jan­jua. The fol­low­ing day, Sushma wrote to her Pak­istan coun­ter­part, Sar­taj Aziz, re­quest­ing his per­sonal in­ter­ven­tion in visas and the mother’s pe­ti­tion.

Within days, the fault-lines be­tween the Pak­istan Army and the Nawaz Sharif-led civil­ian gov­ern­ment be­came ap­par­ent, as the Pak­istan Army spokesper­son re­jected a gov­ern­ment no­ti­fi­ca­tion on April 29 fol­low­ing the Dawn leaks probe.

Some in New Delhi read this as a sign of “un­pre­dictabil­ity” within Pak­istan’s power struc­tures and were ap­pre­hen­sive that Jad­hav may be­come the vic­tim of the strained re­la­tion­ship be­tween the Army and the civil­ian gov­ern­ment. It did not help that around that time bod­ies of two In­dian sol­diers were bru­tally mu­ti­lated, al­legedly by Pak­istan Army per­son­nel.

It was un­der such cir­cum­stances that in early May, South Block fi­nally de­cided to go to the ICJ, since the ap­peal pe­riod for Jad­hav was due to end on May 19. The fact that Pak­istan had not given con­sular ac­cess de­spite 16 re­quests made In­dia’s case stronger, since Delhi was pri­mar­ily in­vok­ing a vi­o­la­tion of the Vi­enna Con­ven­tion on Con­sular Re­la­tions for ap­proach­ing the ICJ.

With May 19 as dead­line, a team of of­fi­cials set to work. Joint sec­re­tary (Pak­istan, Afghanistan and Iran) Deepak Mit­tal and direc­tor Vinod Ja­cob were among the key drafters of the pe­ti­tion, with help from In­dian en­voy Gau­tam Bam­bawale. They con­sulted the ex­ter­nal af­fairs min­istry’s in-house le­gal and treaties divi­sion ex­pert, V D Sharma, for draft­ing the pe­ti­tion. Har­ish Salve was roped in to fight the case be­cause of his rep­u­ta­tion in in­ter­na­tional le­gal cir­cles.

All of them are known to have a way with words. Bam­bawale and Ja­cob have dealt with In­dian joint state­ments with China and Pak­istan in the past — Bam­bawale was joint sec­re­tary in-charge of China for more than three years while Ja­cob has served at Per­ma­nent Mis­sion at the UN in New York as well In­dian em­bassy in China as po­lit­i­cal coun­sel­lor. Mit­tal, who has been a low-pro­file diplo­mat, was part of Naren­dra Modi’s PMO be­fore be­com­ing joint sec­re­tary.

Around May 5 and 6, when Bam­bawale was in town for the Heads of Mis­sions Con­fer­ence, South Block fi­nalised the pe­ti­tion, with help from a few top am­bas­sadors who had ex­pe­ri­ence in deal­ing with key is­sues re­lat­ing to the Vi­enna Con­ven­tion on Con­sular Re­la­tions.

When some ar­gued that there could be ques­tions on In­dia’s ap­proach be­ing dif­fer­ent than in the case of Lieu­tant Sau­rabh Kalia, a top of­fi­cial is said to have told the diplo­mats, “There, we were try­ing to avenge the death of an In­dian. Here, we are try­ing to save the life of an In­dian.”

As a re­sult of In­dia’s pe­ti­tion on May 8, the ICJ asked Pak­istan on May 9 to put the ex­e­cu­tion on hold and sub­se­quently asked the two coun­tries to come with their ar­gu­ments on May 15. “It will be a day­long hear­ing. In the morn­ing, it will be In­dia’s turn to present its ar­gu­ments. And in the af­ter­noon, it will be Pak­istan’s turn. Both will get about 90 min­utes to present their case,” Boris Heim, in­for­ma­tion of­fi­cer at ICJ, told The In­dian Ex­press over tele­phone Thurs­day.

The ap­peal pe­riod for Jad­hav was due to end on May 19. The fact that Pak­istan had not given con­sular ac­cess de­spite 16 re­quests made In­dia’s case stronger, since Delhi was pri­mar­ily in­vok­ing a vi­o­la­tion of the Vi­enna Con­ven­tion on Con­sular Re­la­tions for ap­proach­ing the ICJ. With May 19 as dead­line, a team of of­fi­cials set to work.

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