We have tried one way. At the debate in parliament, the entire Opposition joined hands with Sushma Swaraj in proclaiming Kulbhushan's innocence, condemning Pakistan's military-run kangaroo court, and demanding Kulbhushan's repatriation. In response, Pakistan's opposition parties combined with their government in proclaiming Jadhav's guilt, upholding Pakistan's Army Act, and demanding that the prescribed legal processes be pursued to uphold the military court's sentence of death. Outcome: the Pakistanis have him; we don't.
So we must find another way. That might be to check out the relevant international conventions, find one that both Pakistan and India have ratified, hire the best international law attorneys available, and seek justice for Kulbhushan through due process. I am no expert in international law and would not, therefore, claim to know how exactly to carry forward this option, but I do know enough of international chicanery to believe that whatever the outcome of international processes, it is politics more than the law that determines international judicial outcomes. We are, of course, much closer to the Western powers than we were in the past. But because we have let Russia drift away from us and the Chinese continue to be estranged, I am not sure whether the relevant clauses of the international convention under which we decide to seek recompense will work out in Kulbhushan's favour. I also note that Great Powers who have been involved in this spy v/s spy business have never resorted, as far as I know, to international tribunals to pluck their nationals from the other side's custody.
A second way is to appeal to the international community. We have already spread the word around the world about how Pakistan is a global terrorism sponsor, how there is a "Deep State" in Pakistan that is unrestrained in the nefarious work it does, that the formal government is complicit in all this underhand activity, that it is not the government but the army and intelligence that determine Pakistan policy, that the whole world is threatened by this "failed state", that a peculiarly barbarous version of Islamization is Pakistan's motivating ideology, and that it is, therefore, incumbent on the international community to isolate Pakistan and, Inshallah, promote such regime change as would make Pakistan a fount of sweet good sense.
The world has politely listened. And gone about its own business. They have other interests that go back to the last phase of the twin movements for Independence and Partition. The British establishment believed their crowning achievement to have been the unification of a congeries of disparities into a single nation; the British defence authorities were, however, much more concerned with the military opportunities that a divided sub-continent would offer British global interests. They argued that British geo-political hegemony in the region stretching from Afghanistan through Iran to the Gulf to Iraq, Jordan, Palestine and Israel crucially depended on granting Pakistan a separate state because that state would be happy to offer the West military facilities that Nehruvian India would doubtless deny them. The Defence view won out and Pakistan was granted. In the last 70 years, Pakistan has thwarted India and cocked its snook at us precisely because its geo-strategic position makes it vital for the West, and now, the Russian Federation, to cultivate our neighbour, while China uses its vice-like grip on Pakistan to outwit India. It is unlikely that any of them will be moved by the brilliant forensic and persuasive diplomatic arguments of our Foreign Office to save Commander Kulbhushan Jadhav (retd).
So, if neither unanimous domestic outrage in India nor the stern reach of international law nor the global outreach of our well-travelled Narendra Damodardas Modi can rescue Kulbhushan, is there no hope for him? Oddly enough, yes. For there are at least three options we have that might yet save the young, 46-year old former naval commander who has been under Pakistani incarceration since April 2016, that is, since about one whole year.
First, that the appeals process provided for in Pakistani legislation and the ultimate power of the Pakistan President to commute judicial sentencing might be availed of by us to ensure the best available international legal assistance to Kulbhushan Jadhav. I have seen a news report that says Pakistan has threatened any Pakistani lawyer who attempts to come to Kulbhushan's aid. Our mission in Islamabad and our formidable bank of international law experts might perhaps be leveraged to see how our poor retired naval commander, who for a decade or more has been running an innocent business at Chahbahar and Bandar Abbas ports in Iran, might be rescued through top-class legal intervention. The excellent relations that both India and Pakistan enjoy with Iran make me inclined to believe that an outstanding Iranian law team, rather than an attempt to cobble together one in the British Inns of Court, might provide the answer.
Second, some quiet bilateral diplomacy. Rumour has it that our two National Security Advisers, Doval and Janjua, enjoy a warm personal rapport. If so, then there is no time like the present for them to secretly explore what Pakistan might do, without apparently giving away anything to India, to get Jadhav released or clandestinely shunted back to India. After all, there is a recent precedent. On the day of the "surgical strike", 29 September 2016, the Indian jawan, Sepoy Chandu Babulal Chavan, strayed across the Line of Control and was picked up by the Pakistani armed forces. There ensued talks between the Directors-General of Military Operations (DGMOs) of both countries despite their respective governments not talking to each other. In the third week of January, the unpublicized DGMO-level dialogue resulted in Pakistan returning Babulal Chavan to Indian custody under cover of the face-saving claim that Babulal had not "inadvertently" but "voluntarily" crossed the LoC because he had "grievances of maltreatment against his commanders" and Pakistan, in its infinite benevolence, had sent him back because, "being an Indian national", he should be given the opportunity of "addressing his grievances through local grievance mechanism"! Pakistan may be lying through its teeth, but at least Chandu Babulal Chavan is back home.
I think the critical point about Babulal finding his way home is not due to some Pakistani Bajrangi Bhai, but to what the Indian army officially attributed in this context to "the existing hotline and scheduled DGMO talks". It shows that if we were to establish appropriate institutional mechanisms to deal with such incidents, Kulbhushan Jadhav and other such unfortunates might yet find justice without loud diplomatic protest or public lamentation. We need such institutional mechanisms and channels to work out constructive solutions to serious conundrums. That could inevitably be one outcome of "uninterrupted and uninterruptible" negotiations on outstanding issues with Pakistan.
Which is why one might turn to another option that remains: a spy swap. In this regard, I draw attention to a story that has been hugely played up in the Pakistani media but dealt with rather more circumspectly by our own otherwise "breaking news" hunting media-maniacs: the disappearance into thin air of a retired Pakistani lieutenant colonel soon after he landed in Kathmandu. According to Pakistani news reports, he had been lured to Kathmandu by club-class return tickets and a job offer of USD 8,500 a month. We may have absolutely nothing to do with the incident, but there is speculation that it was this disappearance that triggered the death sentence on Kulbhushan. In case we have this retired Pakistani lieutenant colonel in our custody, can we consider swapping a retired lieutenant colonel for a retired naval commander? Or, alternatively, any other equivalent Pakistani spy we have ferreted out? It is entirely possible that we do not have any Pakistani spies to exchange. But if that is the case, it would imply either that the Pakistanis are such good guys that they send no spies to India - or that our agencies are so incompetent as to have never caught one. Since neither proposition is tenable, I can only assume we have Pakistani spies under detention, just as we certainly have Pakistani and Pakistan-inspired terrorists under our charge. Notoriously, Jaswant Singh (who was perhaps just the fall guy) released a whole posse of such terrorists (including Masood Azhar who went on to establish the Jaish-e-Mohammed that wreaks terrorist havoc on India) to swap for the passengers of the hijacked Kathmandu-Delhi flight. We might consider swapping one or more Pakistani detainees, if we have any, for Kulbhushan Jadhav.
In this regard, it may be useful to consider some classic precedents. Perhaps the most famous case tangentially involving Pakistan was the U-2 spy case of 1960-62. Francis Gay Powers was a US air force pilot who fell in with a CIA plan to induct him into what was innocently called The "Second Weather Observation Squadron", but was actually a very hi-tech US spying exercise using the most sophisticated military aircraft in existence then, the U-2. On 1 May 1960, the U-2 took off from an air force base in Peshawar that had been leased by Pakistan to the US "to fly all the way across the Soviet Union," as Powers himself wrote in his autobiography, Operation Overflight. "The planned route," he continues, "would take us deeper into Russia than we had ever gone, while traversing important targets never before photographed." Unfortunately for the CIA, and tragically for Powers himself, his U-2 was shot down in the Urals over the city of Sverdlovsk. He ejected from the aircraft, but failed to swallow the poison pill that he had been provided, just like any Islamist jihadi today. He also failed to activate the destruct mechanism that was designed to destroy the aircraft. The Soviets thus got both the pilot and substantial parts of the U-2, enough to convict the spy despite the weak defence put up by the CIA that it was just "a weather plane" that had strayed off course because of "difficulties with its oxygen equipment" - a story that only made a laughing stock of the CIA the world over. A few months later, on 10 February 1962, the drama ended when Powers was exchanged for a Soviet spy in US custody, Vilyam Fisher, who went in America by the name of Rudolf Abel.
Even after the collapse of the Soviet Union and the emergence of the Russian Federation, the spying game went on. As recently as 2010, an extraordinarily sexy socialite, Anna Chapman, who moved in the highest circles of US government and business, was fingered by the CIA as one of an army of Russian spies recruited from, or infiltrated into, the large community of Russian immigrants in the US. By June 2010, a swap was arranged under which Chapman and eleven other Russians (a full Dirty Dozen!) - Mikhail Vasenko, Vicky Pelaez, Andrey Bezrukov, Yelena Vavilova, Vladimir and Lydia Guryev, Mikhail Kutsik, Natalia Pereverzeva, Mikhail Semenko, Pavel Kapustin, and Alexey Karetnikov - were exchanged for five US spies in Russian custody - Igor Sutyagin, Sergei Skripal, Aleksandr Zaparozhsky, Gennady Vasilenko, and Alexander Sypachev.
Why can't we do something similar?
(Mani Shankar Aiyar is former Congress MP, Lok Sabha and Rajya Sabha.)
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