Q: There has been a lot of debate that Pakistan should not have accepted the ICJ jurisdiction in Indian spy Commander Kulbhushan Jadhav’s case. Do you think Pakistan had this choice?
Pakistan, like any other sovereign state exercises a degree of choice in picking its battles, its responses, the timing and the place. In my opinion, after making the death penalty announcement for Jadav, we should have been ready for any eventuality. I am amazed that the government said it was taken by surprise.I cannot understand why legal experts employed later were not consulted immediately to protect Pakistan from international consequences.
NOW at this stage, more important than the procedural phase of the case is what we did or did not do with the politics of the public international narrative. From a position of holding the high moral ground which was totally captured by Pakistan when we found him, we must try to understand how we got to the place where we were left defending our position at an important UN forum. There’s a lesson in this somewhere.
ICJ gets jurisdiction in two ways. One where a state has signed its statute and given it jurisdiction. This can be done with or without reservations. Pakistan has signed the statute with reservations so ICJ had no jurisdiction in the Jadhav case as Pakistan had made an exception for such cases. ICJ also gets jurisdiction where two or more states sign a treaty and give it jurisdiction over disputes regarding that treaty. Both Pakistan and India have signed the Vienna Convention on Consular Relations. Both had signed without reservation that part of the Treaty as well which gives ICJ jurisdiction. That is how ICJ got prima facie jurisdiction in the Jadhav case. This means that if we did not want to give consular access, we should have built in the reservation for the VCCR long ago. We did not. Am not sure ICJ would have accepted that retroactively, so giving consular access that was supervised and very brief and procedural should have been considered at the right time in Pakistan’s international interests, just like India did for Kasab to protect itself from such an eventuality.
Diplomacy is about staying on top of one’s story. At this point, for multiple reasons, Delhi is closely micro-managing its storyline.
Q) Has India scored a diplomatic, moral point by getting a stay in Jadhav case?
At the end of the day, diplomacy is about staying on top of one’s story. At this point, for multiple reasons, Delhi is closely micro-managing its storyline. Our position takes long to craft, is poorly projected, and lacks power when its not made with passion from the right public office-holders.
Apart from that, we have a lot to work with, but we gave away the momentum on the narrative. The issue is not about the legal outcome. Let’s be very clear, there are two issues. One, Jadhav is convicted of espionage and terrorism. He is not an ordinary Indian citizen. India is yet to answer very crucial questions regarding his status. We can’t have Delhi sending in serving officers, run around the country, be caught laughing on TV, only to send him back with a bag of gulabjamuns. No state does that. Two, if Delhi is able to score diplomatic or moral victories from this case when they are unwilling to take cases where grave human rights abuses have been committed such as the LoC firings and state-sponsored killings in Kashmir before UN forums, then it is our own failing.
Our position takes long to craft, is poorly projected, and lacks power when its not made with passion from the right public office-holders.
Q) What happens if the ICJ gives a verdict against any country… is it mandatory to accept it?
The fact is that the ICJ is not in a position to enforce all its orders at the end of the day; Pakistan will have the final say on Jhadav’s fate. Foreign policy cannot be about bluster, nor can it only be about personal conversations in high-profile meetings., especially if publically it is said that the said meetings had nothing to do with the business of the state. What leaders should do, though, is weigh what lies in the balance for their country in any set of imminent futures. You have to game your wins and losses. And part of that gaming is once the decision on an optimal course is taken, you have to expend political capital on managing the messaging both at home and abroad. You cannot ignore either. That lies at the heart of good diplomacy, as well as democracy.
As it stands, I don’t think we have seriously even done the homework for what suits Pakistan, and how we can message that. At a closer level, am not sure Islamabad has even convened the kind of long-burn meetings needed to build such strategies and work their messaging for an economically interdependent world. I don’t see any candid inter-agency convergence on the Yadav issue since he was found on Pakistan’s soil, so its not just about the case, but what we have done with his capture, with the options we have. Nor has responsibility been taken in the right or needful places.
We should be thinking strategically, not tactically. The terms of reference should naturally include potential impacts on our future, and rights and responsibilities as an international actor. On the other hand, although states have not been sanctioned by the UN Security Council for not complying with the ICJ, it may be injudicious for Pakistan to totally thumb our nose at the ICJ’s orders. We need to forge a path of actions and messages that protect Pakistan’s integrity and sovereignty, as well as its exposure to international responses outside, say the ICJ. Non-compliance can lead to more orders against Pakistan and risk reparations.
And even if the outcome is adverse we need to consider what would the ICJ decide. Will it acquit Jadhav and order he be handed to India. Of course not. Will it declare the death penalty illegal. No, that is beyond the scope of its authority. At worst, it will declare Jadhav’s conviction and sentence unlawful because he was denied consular access. Pakistan at that time will have three options: thumb ICJ’s nose and execute Jadhav, let Jadhav go free or give Jadhav consular access and retry him. The first invites international opprobrium, the second rubs the nation’s nose in the dirt. It has to do neither. The third option allows it to act both as a respectable member of the international community and a proud and sovereign country.
As a member of parliament’s National Security Committee I am on public record for saying that I am not convinced that we dealt with this case with our best resources
Q) Opposition and many experts blame the Foreign Office/the government for what they call the poor showing at the ICJ. Has Pakistan been unable to fight the case effectively?
The problem started much before ICJ. These cases have to be carefully worked at right from the beginning. Pakistan should have responded to India’s requests for consular access after taking proper legal advice. The letters sent by us were mindless, had no substance, and gave India the smoking gun it needed for ICJ.
As a member of parliament’s National Security Committee I am on public record for saying that I am not convinced that we dealt with this case with our best resources. At meetings I was quite unsatisfied by the poor preparation and opacity of government officials. The parliament in any in-camera committee was not consulted prior to presenting the case before the ICJ. If nothing else, there would have been a political convergence on the issue. The PPP government, for instance, constantly stayed mindful of taking tough decisions such as cutting off US and NATO supply lines for seven months by constantly keeping parliament in the loop.
Here, I don’t think the powerless Foreign Office should be made the fall guy alone. They were just the messenger. This was the responsibility of the Foreign Minister and the Prime Minister, who in this case are one and the same. The government said that they were not able to prepare for the case adequately because of time constraints, but the possibility of India approaching ICJ should have been on the government’s radar from the day when Jadhav was arrested.
I would have called a meeting to game Indian responses the day he was captured, as well as the day his penalty was announced. The Parliament should have been taken in confidence and all responses given after taking best possible legal advice. Did they not know that Pakistan had signed the Optional Protocol to the Vienna Convention on Consular Relations without reservations? Did they not know that it gave ICJ jurisdiction to decide all disputes relating to interpretation and implementation of the Vienna Convention? This clearly meant that it was only a matter of time before India approached ICJ. They could not have been surprised unless they were ignorant of these basics. On one hand they say they were building firewalls, on the other they say they did not have time.
While a Pakistani ad hoc judge may not have altered the balance materially, it would have had better political outcomes in the long term
Q) How you see the performance of Pakistani lawyer at the ICJ? Was it a mistake not to appoint the ad hoc judge?
It was indeed a big mistake not appointing an ad hoc judge at that time, although this government refuses to admit the serious lapse. While a Pakistani ad hoc judge may not have altered the balance materially, it would have had better political outcomes in the long term. It was a missed opportunity and negligence on the part of the whole of government. I don’t want to beat up on one lawyer whom I do not know of, but the fact is he was put in the spotlight, and he needed to watch his performance. It is bizarre that to my mind that our counsel did not utilize the allocated time to make his case, he did not respond to the charge of breaching the Vienna Convention. It is not enough to say that he had spoken enough and had made his point.
India’s counsel focused on the law whereas Pakistan’s focused on the facts. As of 2016, Pakistan has 2,977 Supreme Court enrolled lawyers and yet our team was not even supervised by the Attorney General who was kept busy with ‘other cases’ at home instead of the Hague. Pakistan has no shortage of international law experts and their opinion should have been urgently sought by the government, especially in sensitive, high-profile inflection points like this. The government’s failure to understand the importance of a strong international legal team has led to catastrophic losses in the past. It is too busy managing its own political survival to worry about Pakistan’s, sadly.
There is much that could have been done, and should have been done. History will mark these judgements both for precedence and politics.
Q) Do you think Pakistan has been able to highlight the case of the Indian spy effectively internationally and at the world capitals or more efforts were needed?
We still have a chance to make a powerful case. By the time we received the first letter from the ICJ, we should have taken public international law advice, as well as political counsel at home.Lawyers should have been consulted before letters were written off.
I would have had a first rate crisis communication firm on hand to manage our story and best advise on messaging. There is much that could have been done, and should have been done. History will mark these judgements both for precedence and politics.
Today international diplomacy is about telling a better story, about telling it well, and building it on strategic priorities based on facts
Q) What should be the course of action in this case now?
Now Pakistan must chalk out a robust strategy for the second phase of the case. The counsel should have focused on the issue of whether or not the ICJ has jurisdiction. We need a sharper, bigger team who considers every point. This time no one should hide behind the excuse of not having enough time. This case needs to include all relevant institutions in Pakistan and an empowered Foreign Minister should have consulted and briefed the NSC of parliament regularly. Pakistan’s diplomatic missions abroad should be fully mobilized to counter India’s campaign against Pakistan.
We need to work on the preliminary objections where Pakistan must focus and be clear, for instance, on why the ICJ does not have jurisdiction. It can argue that Pakistan’s Bilateral Treaty with India on consular relations trumps the Vienna Convention and excludes ICJ jurisdiction. We should also consider the exceptions in the Geneva Convention with regard to spies and argue that it has to be read with the Vienna Convention. It is not a cake walk. International law can be a minefield of traps, some of which we have already walked into. We must work hard to put together a defence which next time round doesn’t get hit out of the rules and clauses that apply to spies.
We need to work on the preliminary objections where Pakistan must focus and be clear, for instance, on why the ICJ does not have jurisdiction
Q) Why such charges against PM Nawaz Sharif that he is not serious in highlighting Indian sponsored terrorism in Pakistan on the world stage in an aggressive manner?
The stakes are never low in international diplomacy, but the government seems oblivious of this hard reality.
Today international diplomacy is about telling a better story, about telling it well, and building it on strategic priorities based on facts. The Prime Minister did not bother to take Jadav’s name at any international forum while India has been running a smear campaign across all forums. Why hasn’t the government stood up to these allegations and defended the country and our national integrity? The PM’s UNGA speech was a wasted opportunity. We are not war mongers, we cannot afford to be anything but a state that seeks peace in the region. But peace can’t be at any cost.
We have all read our history. A victor’s peace for one world war created another. We should remind the world of our deterrent capability and then sue for reciprocal terms of peace, stalemate or competition. If PM Modi and Delhi’s MoEA have been actively painting a picture of Pakistan as a state-sponsor of terrorism, then lets say what we have to and say it well. We must put our house in order. It is difficult. Pakistan does not live in an easy neighbourhood nor has its experience been shaped in a historical vacuum. Its been difficult since we were used as a conduit for arming mujahideen, and then left to deal with the blowback alone. At the same time, we must not become victims of the international community, we must take responsibility for what we signed up to ourselves, but lets not give everyone a free pass, including allies. We must tell our side of the story with clarity and commitment.
Why did PM Nawaz hold back from telling our story? All the PM has done so far is conduct ‘private meetings’ and embarrass Pakistan at home. Internationally, where has he landed us? Pakistan and the PM become one entity when he is representing us abroad, so what happened during the Riyadh Summit was not unimportant to any of us. It was an outcome of this government’s disastrous diplomacy. The PM must empower the Foreign Office and appoint a competent Foreign Minister since his diplomatic track-record has seen a dangerous downswing to Pakistan’s international standing. India has taken full advantage of Pakistan’s lack of diplomatic push. Inadvertently, we have built an apologetic image of ourselves, for all the wrong reasons. Modi’s propagation of Pakistan being the mother of state terrorism has been met with silence from the government. What actions has our PM taken to counter this line? Nawaz’s policy has been nothing but perplexing and painful to watch for any Pakistani.
This interview appeared on Bol Narratives, July 2017 Magazine.