Several Indian citizens accused of spying are languishing in Pakistani jails and several were tried, sentenced and punished in the past; What is so important about Kulbhushan Sudhir Jadhav that takes India to ICJ?
Prominent Indian journalist, Praveen Swami, in his groundbreaking piece, “India’s Secret War” (Frontline, 16 February 2018) raises an interesting question: “Thirteen Indians are being held in Pakistan on espionage charges, and 30 Pakistanis are in Indian jails, but there is not a single case has either country officially concerned itself with its agent’s fate”. Swami’s question becomes even more relevant when you consider the Global Village Space (GVS)’s brief research contained in a stand-alone piece, “Those who came before Jadhav” that shows that at least 11 Indian agents since early 1970s were arrested, tried, sentenced – and most returned to India after their sentences or pardon. What makes the Indian naval officer, Jadhav so important? How has India landed in the International Court of Justice (ICJ) when most nation-states, in conventional practice, will like to negotiate or settle such matters behind the scenes through exchanges of prisoners or concessions through the diplomatic channels? Swami himself ponders on this question in great length. His six-page-long seminal research – for which journalists and informed citizens across India and Pakistan, and historians across the world owe him a debt of gratitude – addresses this question on more than one occasion. What ties Indian government and its state agencies irrefutably with Jadhav is the fact that while he finds mention in official ‘Gazette of India’ as a naval officer (joined 1987) his retirement and pension records do not exist. At one point he admits, “the possibility that Jadhav is still a serving naval officer is precisely what makes this case different”. At another point, he quotes an unnamed Research and Analysis Wing (RAW) officer who comments upon the details of Jadhav case by saying, “basically, it makes it impossible for India to deny he (Jadhav) is whom he says he is, which is a basic element of tradecraft”. At yet another point, Praveen Swami himself ends up concluding, “the questions over Jadhav’s passports, the opacity of his business operations and most importantly, the lack of transparency about his connection to the Indian Navy have all made it difficult for the Government of India to dissociate itself from his cause – the usual necessary fate of the spy”
In many ways, Swami’s piece is all about Jadhav’s identity and his investigation for which he spoke to several diplomats and intelligence officers across three countries (India, Pakistan, and Iran) leaves little doubt in the mind of a reader that Kulbhushan Sudhir Jadhav is a serving Indian officer who was on a mission authorised at the highest level from the Indian government – though Swami, the careful Indian journalist does not say this in these words. Swami’s research corresponds well with what many of us were able to understand through our interactions with Pakistan Foreign Office, intelligence and other government sources including many off-the-record briefings.
Will Pakistan execute Jadhav before the final verdict?
Most of that is now in public knowledge; though many things were not known when I wrote, “Kulbhashan Jadhav had also planned the attack on Pakistani Consulate in Zahedan” (GVS, 25 December 2017), almost two months before Swami’s piece appeared in the Frontline. Now it is common knowledge that Jadhav, a senior officer in Indian Navy (Navy No: 41558Z), recruited in Navy in 1987, was placed in Iran somewhere in 2003, he was assigned to RAW from 2013 onwards. He was carrying Indian passport (No: L9630722) when he was arrested from a compound in Mashkel, in the Pakistani province of Balochistan, in an area not far from the Iranian border in March 2016.
A visibly shocked Indian government first denied before admitting that he was indeed an officer with Indian Navy – but then insisted that he had retired and lived at the Iranian port of Chabahar on his own as a businessman. Diplomatic circles were planted with the idea that Pakistani Inter-Services Intelligence (ISI) has seized him from high seas; social media sites in the region speculated that Afghan Taliban may have captured him and handed him to Pakistanis; after all “his carrying his passport with him on a covert mission makes no sense”. It must be mentioned that Praveen Swami, like the Indian government, also asserts that Jadhav was seized from the Iranian province of Saravan, close to the Pakistani border. Pakistani agencies have obtained his actual pay slips as a serving officer, till 2016, as was hinted by the Pakistani counsel during the ICJ trial. Fiction of Abduction from Iran and Retirement from the Navy? However, inside the ICJ courtroom, in February 2019, Pakistani counsel, Prof Khawar Qureshi placed on record that when during the February 2018 visit of Iranian President Hassan Rouhani, Indian media questioned the Indian government, “if India has raised the issue of Jadhav’s abduction from Iran” then they were curtly informed that this was “not part of bilateral discussions” and this does not fall in this domain. In other words, the Indian government and its agencies planted the idea of “Jadhav’s abduction from Iran” in media space but never formally raised the issue with Iran.
During the ICJ trial in February 2019, Pakistani counsel kept demanding any evidence of due process initiated by the Indian government in Iran on this fictional abduction but the Indian side remained silent. Pakistani sources had, however, confirmed that Iranians acted against the small cell that Jadhav operated under the cover of “Kaminda Trading” and his associates were made to leave Iran. From Swami’s piece, we know that Iranian officials had meticulously looked into the affairs of Kaminda Trading and were surprised that it never behaved like a normal business in terms of the volume of trade or banking relations.
“Pakistan should take measures to ensure that Jadhav is not executed”,
Indian government and media have, however, kept the fiction of “abduction from Iran” alive for domestic consumption – and many commentators on television and newspapers keep repeating this without any evidence. On matters regarding Jadhav’s status (whether he was a retired or serving official) Pakistani sources and Swami’s piece have no dispute.
Pakistani Letter of Assistance (LOA) in January 2017, before the finalisation of trial against Jadhav had demanded to see evidence of his retirement from Indian Navy, statement of his former Naval reporting officer and as to how he was in possession of an Indian passport under the Muslim name of “Hussain Mubarak Patel”, an identity he used for entering Iran. The Indian government was never able to explain and it kept dodging these questions since March 2016 and throughout the trial at the ICJ.
Jadhav: A Lingering Embarrassment for India, why?
Why Jadhav creates an unusual challenge, a lingering embarrassment for the Indian government is thus not difficult to understand. All those – spies, saboteurs or terrorists – who came before him were junior intelligence operators who were cloaked, effectively covered under the conventional practice of “plausible deniability”; even when seized agents confessed and admitted like in the cases of Ravindra Kaushik, Gurbaksh Ram, Vinod Sawhney, and others it did not compel Indian government to accept their claims or take responsibility for their actions because Pakistanis had nothing material to connect them with the Indian state.
Swami’s research corresponds well with what many of us were able to understand through our interactions with Pakistan Foreign Office, intelligence and other government sources including many off-the-record briefings.
Vinod Sawhney later, after his release and repatriation to India, (in 1988) created “Jammu Ex-Sleuth Association” that was specifically created for the welfare of those former agents who worked for the Indian intelligence agencies but were later disowned. Sawhney has given several press interviews explaining how government and intelligence disowned him and others. His association now has around 60 members. Kashmir Singh who kept denying his identity and role while in a Pakistani prison, later confessed his role as an agent for the Indian government, “I was a spy and I did my duty” in interviews with Press Trust of India (PTI). But all these did not change the overall situation – as the publications of books and articles in the Western world about covert operations by the US, the UK or Israeli agencies do not create much of an issue for the governments. But the fact that Kulbhushan Jadhav holds an authentic Indian passport on a fake identity, a passport which was renewed in 2014 and on which he travelled 17 times in and out of India creates a situation that is difficult to explain.
Jadhav makes clemency appeal to the COAS: What will be his…
But if this is difficult then what ties Indian government and its state agencies irrefutably with Jadhav is the fact that while he finds mention in official “Gazette of India” as a naval officer (joined 1987) his retirement and pension records do not exist. Pakistani agencies have obtained his actual pay slips as a serving officer, till 2016, as was hinted by the Pakistani counsel during the ICJ trial. So, whatever the Indian government may claim, and however loud its media may protest it is not possible for them to deny that Jadhav was a serving Indian officer reporting to the highest decision-makers in the intelligence agency, RAW.
This makes him an instrument of the Indian state and Indian state becomes responsible for his actions – as explained by international law expert, Ahmer Bilal Soofi, in another piece for this publication. During the Mumbai terrorism, November 2008, all what the Indian government had was a captured Ajmal Kasab whom they claimed, with reasonable confidence, was a born Pakistani citizen. Sawhney has given several press interviews explaining how government and intelligence disowned him and others. His association now has around 60 members. Though there is some lingering controversy in Pakistan if the man in confessional video from hospital bed was the real Ajmal Kasab from Farid Kot but Indian government had a powerful case to impress upon the world and to place Pakistan in a difficult corner for the next 10 years; a process that still continues to haunt subsequent Pakistani governments. But in the person of naval commander Jadhav, Pakistanis have a serving uniformed officer, of the Indian state, that was, according to his confession, taking instructions from the top of the Indian intelligence agency, from its number one or two. During the process of trial at the ICJ, Pakistan also submitted in a sealed envelope names of 13 top Indian officials who were interacting with Jadhav regarding his assignments – these names included Ajit Doval, India’s current National Security Adviser (NSA) and Alok Joshi, former RAW chief; both of whom worked closely with Prime Minister Narendra Modi.
‘I am still a commissioned officer’, says Kulbhushan Jadhav
What is at Risk for India?
This cannot be understood without understanding the fundamentals of Indian foreign policy towards Pakistan. Since the early 1990s the cornerstone of Indian state policy has been to ensure that the world sees India as an innocent victim of an irresponsible, unstable terror-sponsoring state of Pakistan – what is sometimes referred to as the “Rao Doctrine” (ascribing to PM Narasimha Rao). India for past 25 plus years is working step-by-step to get Pakistan declared a “terrorist state” or a “terror-sponsoring state”; there is much-documented evidence of Indian position and initiatives on this strategy, in recent years, after the rise of the Bharatiya Janata Party (BJP), it has become more and more pronounced; though it will be incorrect to consider it a BJP-specific agenda, since it has all the hallmarks of a grand national strategy with considerable bipartisan consensus.
Key Indian officials – including top politicians, ex-diplomats and strategic thinkers – keep harping on this theme. Most of India’s strategic efforts may remain hidden from public eye, but one component visible in the public space appears in the form of sustained efforts to create circumstances and arguments for an unstable Pakistan’s isolation from the world, especially Western world and opinion-making circles in Washington, New York, London, Brussels, Hague, and so on. The Mumbai terrorism, November 2008, all what the Indian government had was a captured Ajmal Kasab whom they claimed, with reasonable confidence, was a born Pakistani citizen. Apart from Indian government agencies and departments many if not most in the Indian media, think tank community, academia and Bollywood have been busy furthering this agenda. Even, the Board of Control for Cricket in India (BCCI) has been very aggressive on this front to ensure that international cricketing events do not take place in Pakistan. The central point of this strategy is to build a continuous growing narrative that proves Pakistan not only as a “terror-sponsoring state”, but also a “failing or failed state” a twin-headed narrative that is of use not only in the global centres of power (Washington, London and Brussels, etc.) and the United Nations but also in the specialised forums like Financial Action Task Force (FATF) which has again put Pakistan into its grey list since June 2018 and the Indian government is working hard to ensure that Pakistan is pushed into what is called, “blacklist”.
Delhi responds to Islamabad’s Jadhav offer positively !
The objective of this multi-pronged strategy is to isolate Pakistan and to deal or negotiate with a very weakened, internally divided, literally prostrate Islamabad. While this strategy has not fully delivered and Pakistani state keeps on emerging back as it demonstrated by defeating the various insurgencies in erstwhile Federally-Administered Tribal Areas (Fata), Swat valley and Balochistan and by breaking the back of urban militancy in its largest port city of Karachi or when it recently started facilitating direct dialogue between the Trump administration and the Afghan Taliban – but no serious student of international relations can deny that India has succeeded to a great extent in marginalising Pakistan’s influence and in containing it. But all this architecture of “narrative control” around Pakistan now faced its first serious challenge in the form of “Kulbhushan Jadhav.”
Jadhav and Indian ‘Doctrine of Offensive-Defense’
But where does Jadhav, a mere naval officer, fit into all this? In his piece, “India’s Secret War” (Frontline, February 2018) Praveen Swami, while explaining the origins of Jadhav’s little operational cell, (under the cover of Kaminda Trading) mentions that from 2013 Indian government and intelligence became more aggressive in using covert operations, inside Pakistani territory. He mentions “assassination of Lashkar Chief Hafiz Muhammad Saeed’s security boss, Khalid Bashar” penetration of Jaish-e-Muhammad (JeM)’s rank and file, tit-for-tat arming of Baloch insurgents as examples of RAW’s forward offensive operations. Pakistan’s isolation from the world, especially Western world and opinion-making circles in Washington, New York, London, Brussels, Hague, and so on. The thrust of Swami’s argument fits well with the overall Indian narrative; India, a victim of Pakistani terrorism was compelled to act in self-defense. Both Israel and the United States, from the 1980s onwards, have been preaching similar high moral ground while intervening inside other state territories. On 26th February 2019, Modi government again defended its air force strike into Pakistani territory of Balakot, in the province of the Khyber-Pakhtunkhwa (KP), (an unusually risky, irresponsible and aggressive action designed to create a new balance of power in South Asia) as a preemptive strike against “350 militants” who were about to launch an attack inside India. While the whole world, including most in Indian media, may now believe that these “350 militants sitting on a hilltop on a cold night ready to launch an attack” was a political fiction taken from the script of Barry Levinson’s “Wag the Dog”, but emphasising upon these absurd lies of Modi regime misses the point. And the point is that India has meticulously invested in creating a systematic narrative and that narrative now allows it to undertake and justify such bizarre, outrightly risky actions which can enjoy the support of at least three P-5 countries (US, UK, and France – their reasons for this is a separate story).
Kulbhashan Jadhav had also planned attack on Pakistani Consulate in Zahedan
Pakistanis could see a “Strategy of Destabilisation”
But Pakistani government agencies, strategic community, and the Foreign Office had been seeing something totally different. Within few months after 9/11, by the beginning of 2003, many on this side of the divide had started observing a pattern of intelligent strategic mindset, logistic support, and financing behind the actions of various groups that started identifying themselves as Pakistani Taliban (TTP). Similar patterns emerged when Baloch insurgency suddenly broke out in several districts from 2006 onwards.
Urban militancy in Karachi exhibited similar patterns and Pakistani law enforcement agencies traced the existence of training camps for Muttahida Qaumi Movement (MQM) militants in South Africa. It was obvious that a well-developed strategic mindset was playing with Pakistan’s fault lines and creating a specter of widespread chaos, instability, collapsing governance and thus the picture of a “failing state”. Most of the violence against Pakistani forces in the erstwhile Fata, Balochistan and against targets all over Pakistan was directed by cells operating from inside Afghanistan. In off-the-record briefings, Pakistani intelligence and other officials complained that while they have reasons to believe that Indian RAW is deeply penetrated into Afghan intelligence, the National Directorate of Security (NDS), the existence of multiple independently operating cells and use of local Pashto or Dari speaking operatives makes it very difficult to break the cover of “plausible deniability.”
I am still a commissioned officer’, says Kulbhushan Jadhav
Jadhav: Takes Away India’s mask of Innocence
This brings us back to the question: Where does Jadhav, the polite speaking Indian Naval officer deputed to RAW, captured from Mashkel, Balochistan, fits into all this? The answer is: Jadhav ran out of luck, was given away by Baloch collaborators, at a time when Pakistani agencies had already achieved upper hand in their counter-insurgency in both Fata and Balochistan and were aware of the existence of several cells operating from inside Afghanistan and Iran. Jadhav’s arrest only provided a face, a material proof of the role being played by Indian state and its agencies for the past several years – he did not represent the starting point or an end stage of Indian strategic ambitions. The thrust of Swami’s argument fits well with the overall Indian narrative; India, a victim of Pakistani terrorism was compelled to act in self-defense. Jadhav was merely running one operational cell, with a small team. His task was principally to support insurgents in Balochistan and destabilisation around Gwadar but he was merely a cog in the larger machine of Indian agency set up (RAW and the IB) that was working to achieve multiple goals inside Pakistan. But do states not use spies, infiltrators, saboteurs against other states? US publications, newspapers and magazines are full of juicy stories of the US and Israeli covert operations against several Middle Eastern states – and at times operations inside friendly countries.
What is so special if India were using a naval officer deputed to its intelligence agency, RAW? Problem lies in India’s development of a fully-structured narrative, of an innocent India, victim of Pakistani interventions on its soil, of a strong but tolerant India, patiently waiting for the United Nations and the Western world to punish Pakistan or to grant it the same privilege of “preemptive strikes” which the US and Israel have been enjoying. On 26th February 2019, Indian strikes inside Pakistan enjoyed the full support of the United States, UK, and France – this reflected the power of narrative India had been shaping for the past quarter century.
Mama Qadeer on Indian TV Channel says Pakistan is lying over…
But Jadhav in Pakistani custody with all his details (passport, service record, and confessions of his reporting line) proves to the world and more importantly to the aware and educated Indian intelligentsia that India was playing the same dirty game which all states play, and for which it had continuously blamed Pakistan. In other words, both India and Pakistan may have been waging “secret wars” against each other.
India in ICJ: To win a war of Narratives?
India’s stated reason for approaching the ICJ is that Jadhav faced imminent risks of execution. But Pakistan has never executed an Indian agent, even when they exhausted their appeal process and Jadhav still had the option of appeals before the high court and supreme court that could take years. Executing a senior Indian officer is, in any case, something that Pakistan does not afford – given its negative publicity. Jadhav saga, in the end, can only be settled by bilateral talks, or hidden negotiations or exchanges between the two countries. So, why India rushed to the ICJ?
Jadhav’s arrest only provided a face, a material proof of the role being played by Indian state and its agencies for the past several years – he did not represent the starting point or an end stage of Indian strategic ambitions.
Most Pakistani analysts believe that India is not in the ICJ to save Jadhav’s life but to save its three-decade-old narrative of “innocent India under attack from a belligerent Pakistan”. Indian institutions have worked diligently and invested massively in building this narrative and Jadhav saga, of India’s own “Secret war against Pakistan”, suddenly emerged as a weak link that risk undermining the whole architecture of this narrative of “Innocent India”. Indian counsel at ICJ, Harish Salve, later blamed Pakistan for using Jadhav for grandstanding.
Pakistanis are certainly using Jadhav as an asset in the war of narratives but, it is India that has arrived at the ICJ to browbeat this challenge, to win this “war of narratives” through narrow technicalities. India that finds itself unable to respond to any questions, on the origins and motivations of Jadhav aka Hossain Mubarak Patel in Pakistan or even in Iran, intends to turn tables around by building its whole case around, “lack of consular access”. India hopes, with good reasons that if its arguments are accepted at ICJ, then a fresh trial will take place that will help India to turn around the whole narrative of its state intervention – because consular access may encourage Jadhav to negate his earlier confession and statement of facts, regarding his reporting line to the top of Indian Government.
Kulbhushan Jadhav Case: India to submit reply in ICJ today
History of India and Pakistan at ICJ
If history is any witness, then India has always been successful in achieving its goals at the ICJ. Ganga Hijacking and Pakistani appeal at the International Civil Aviation Organisation (ICAO): On 4th February 1971, an Indian plane, Ganga, was hijacked by two young Kashmiris to Lahore; passengers were safely returned but the plane was burnt down by the two hijackers in an act of unnecessary melodrama.
India reacted to this incident by blocking its airspace to Pakistani civilian aircraft. This was a huge challenge for Pakistan that needed this air corridor to maintain connections with its politically-troubled eastern wing (now Bangladesh) – where India supported an insurgency and later intervened militarily. Pakistan, on 3rd March 1971, challenged Indian action at the ICAO, citing International Civil Aviation Convention and the International Air Services Transit Agreement both signed in Chicago in 1944.
India refused to accept ICAO’s jurisdiction; when it declared itself competent by decisions on 29 July 1971, India challenged its decisions in the ICJ where the matter remained pending till August 1972. By the time ICJ finally decided the matter war had long ended, East Pakistan had become Bangladesh and later publications by ex-Indian officials revealed that hijacking of Ganga in February 1971 was an Indian intelligence plan to restrict air contacts between East and West Pakistan – while a war was being planned to support insurgency in former East Pakistan.
Kulbhushan Jadhav case: ICJ to start hearing in February
Atlantique and Marshall Island Cases
On 10th August 1999, Indian MiGs shot down, Atlantique, an unarmed Pakistani maritime patrol aircraft, over the Rann of Kutch, killing 16 Pakistani servicemen; this happened almost one month after the end of Kargil border conflict between the two states and there were no hostilities or state of war between them. Pakistan, in September, lodged a compensation complaint at the ICJ, citing India’s shooting down of an unarmed surveillance plane. India argued that the ICJ had no jurisdiction over matters between two Commonwealth States and the ICJ decided that it had no jurisdiction. India’s stated reason for approaching the ICJ is that Jadhav faced imminent risks of execution. Some in the legal community, in India and Pakistan, attach great importance to the ICJ’s 2016 decision in rejecting Marshall Island’s claims against all nuclear nations. But realistically speaking it was more of an idealist drawing room discussion rather than having any practical value. The tiny Marshall Islands were used, by the United States, between 1946 till 1967 for nuclear testing. The Marshall Islands filed a case in 1974; the US, Russia, China, France, and Israel never appeared before the court citing one or the other exception. Pakistan, India and the UK appeared, and in 2016 the court declared its lack of jurisdiction. But any logical person needs to take a pause and ask himself: what would have happened if the ICJ had given any adverse decision? It was tiny Marshal Island’s need for grandstanding and publicity, and the possibility of major nuclear nations changing their strategic calculus because of the ICJ’s decision was highly unlikely – especially when the main culprit, the United States never appeared to defend itself.
The Fate of Kulbhushan Jadhav: ICJ begins public hearing
Why did Pakistan land in ICJ?
Given the past history of the ICJ between India and Pakistan one naturally wonders why Pakistan decided to defend itself at the ICJ? Why the country, learning from past experiences, could not find a way to stay away from this Hague court. Many top legal experts in May 2017 had expressed surprise on the decision of the then Pakistani government of Prime Minister Nawaz Sharif to defend itself at the ICJ. These legal experts thought that Pakistan could have worked around exploring options to stay away from a forum where India, for various reasons, appears to enjoy significant influence.
While there is no clear answer to this, but many suspects that Nawaz Sharif’s decision may have something to do with the sudden visit of Sajjan Jindal, the Indian businessman close to Narendra Modi on 28th April 2017. PM Nawaz did this meeting, in the hill resort of Murree, without any note takers (and apparently in the open lawns) and was later unable to explain anything except that Jindal was a family friend –as claimed by his daughter, Maryam Nawaz. Pakistan’s English press that is getting more and more peculiar for its “dumbing down”, reported that Jindal had brought suggestions for a formal meeting between Nawaz and Modi at the Shanghai Cooperation Organisation (SCO) summit in Astana.
Supreme Court of Pakistan had already passed a serious adverse judgment, on 20th April 2017, in Panama Offshore Accounts case, setting up a multi-agency Joint Investigation Team (JIT) to examine Nawaz’s accounts – this process subsequently led to his disqualification on 28th July 2017. Indian establishment looking for a bilateral meeting between a seriously weakened Nawaz and Modi at that stage, after the Supreme Court preliminary decision, was highly unlikely. As it happened, no bilateral meeting was ever scheduled between Nawaz and Modi; they merely shook hands and enquired about each other’s health on 8th June 2017 in Astana. However, India filed its case in the ICJ on 8th May 2017. The Hague court reacted to Indian application with a speed that can best be described as “unusual” and the Pakistani government quickly decided to appear to defend itself – rest is history.