The International Court of Justice (Review and Re-consideration)Legislation in the Parliament

 Islamabad: 17 November 2021

The Pakistan Parliament, in a joint sitting on Wednesday passed The International Court of Justice (Review and Re-consideration)Bill that will give Indian national Kulbhushan Jadhav the right to appeal against the death sentence  , pronounced  on 10April 2017 by a military court, for espionage and terrorist activities. The Indian spy was caught by Pakistan’s Inter-services Intelligence from Balochistan in March 2016. 

The bill ,originally passed by the National Assembly on 10 June, was rejected by the Senate the same month. It aimed at allowing Jadhav to have consular access in line with the International Court of Justice (ICJ) verdict.

The Hague-based ICJ ruled in July 2019 that Pakistan must undertake an "effective review and reconsideration" of the conviction and sentence of Jadhav and also to grant consular access to India without further delay.

According to the media reports, Kulbhushan Jhadav is a serving officer of the Indian Navy. After serving for 14 years in the navy, Jhadav was inducted into the Research & Analysis Wing (RAW), the foreign intelligence agency of India. 

After his induction, Jhadav, in 2003, established a small iron scrap  business in Chahbahar port of Iran from where he made several undetected visits to Karachi and various places in Balochistan.

 On 3 March 2016, Jadhav was arrested inside Balochistan in Mashkhel, near the border town Chaman. The arrest happened during a counterintelligence raid conducted by security forces.

 Jadhav entered Chabahar with a visa stamped on a fake passport numbered L9630722 in 2003 where he got a new identity of Hussain Mubarak Patel – born on 30 August 1968, from Maharashtra, India.

 His job was to destabilize Pakistan by strengthening a separatist movement in Balochistan and Karachi – a mission that officially began in 2013. 

While in Balochistan, Jadhav established a network of operatives, provided funds, arranged to smuggle people into Balochistan and Sindh for the purpose of terrorism and reportedly purchased boats at the Iranian port in Chabahar to target Karachi and Gwadar ports in an alleged terrorist plot.

 According to Jhadav,  his goal was to sabotage the CPEC through propaganda – with Gwadar port as a special target – and also to create disharmony between the Baloch nationalist political parties. Jadhav told the interrogators to use a code phrase – "your monkey is with us" – to inform his handlers and the Indian authorities about his arrest. 

Jhadav was arrested as a result of the dogged determination and efforts of Captain Qadeer Ahmed, an ISI officer, who spent three years as a beggar, hunting for the Indian spy at different locations in Balochistan. Attired in dirty, tattered clothes, captain Qadeer slept on the pavement and scoured dustbins, while keeping a watch.

 Jhadav’s investigations revealed that he was involved in financially supporting Baloch separatist militants and admitted his involvement in Karachi's unrest. Interrogation also revealed that Jhadav gave naval combat training to Baloch separatists in an attempt to target the ports of Gwadar and Karachi. 

During interrogation ,Jadhav also revealed that he was in contact with Haji Baloch,, a notable of Wadh who provided financial and logistical support to Baloch separatists.

 He also said that the masterminds of the Safoora bus attack, where gunmen shot dead 45 Ismaili passengers, were trained and financed by him.

 Jadhav added that he had met Haji Baloch several times, sometimes for planning sectarian violence in Karachi and the rest of Sindh. Based  on

Jhadav's information, law enforcement agencies in Pakistan  arrested hundreds of undercover operatives.

 Husain Zaidi, an Indian author and journalist , claimed that Jadhav was a spy and may have been arrested by Pakistan's intelligence service because of complacency setting in, after a stay period of 14 years. 

It is alleged that his phone was on surveillance and his habit of talking in Marathi while conversing with his family blew his cover, as it did not commensurate with his fake identity. 

As expected, India denied the claim and said that Jhadav was abducted from Iran. According to Indian sources, Jadhav was abducted by Pakistan's forces from the Pakistan –Iran border area. Indian officials maintained that  Jadhav owned a cargo business in Iran and had been working out of Bandar Abbas and Chabahar ports.  According to them,"it appears that he strayed into Pakistani waters. But there is also a possibility that he was lured into Pakistan sometime back and fake documents were created for him by the ISI".

 On 10 April 2017, Jadhav was sentenced to death by a Field General Court Martial (FGCM) in Pakistan, following a confession before the magistrate and court. Jadhav's trial lasted three and a half months and the charges he was convicted for included spying for India, waging war against Pakistan, sponsoring terrorism, and destabilizing the state.

 He was tried in a military court due to his naval background and the sensitive nature of his case, involving espionage and sabotage. 

The sentence was confirmed by army chief Qamar Javed Bajwa, and released via the ISPR. Pakistan's Defense Minister Khawaja Muhammad Asif stated that under the provisions of the Pakistan Army Act of 1952, Jadhav had the right to appeal against his conviction on three appellate forums within 40 days. 

On 10th April 2017, during a briefing to the Senate of Pakistan, Pakistan's Defence Minister Khawaja Asif stated that Jadhav's prosecution followed due legal process based on the country's laws, rules, and regulations and "there was nothing in the legal proceedings that were against the law." He said that Jadhav had been provided with a defending officer throughout the course of his trial. He rejected India's accusations of terming the trial a "premeditated murder". Asif added that Pakistan would allow no concessions to elements who threatened its security and stability, from inside the country or across the border. 

Indian Reaction to the Passing of  ICJ (Review and Re-consideration) Bill 

“Pakistan continues to deny unimpeded and unhindered consular access to Shri Jadhav and has failed to create an atmosphere in which a fair trial can be conducted,” external affairs ministry spokesperson Arindam Bagchi said while reacting to the Pakistani law. 

Experts have said the new law will not make a material difference to Jadhav’s case and it was more about meeting legal requirements so that he can mount a proper appeal in Pakistani courts. The law allows a foreign national to file a petition in a Pakistani high court for review and reconsideration of a sentence given by a military court.

Saleem Akhtar Malik

19 November 2021

The author is a Pakistan Army veteran who regularly writes on national and international affairs, defence, military history, and military technology. His talks on these subjects are aired on his YouTube Channel "The Observation Post". His blog "Sam1953.blogspot.com" features his articles. Tweets @saleemakhtar53.