Don't start chest-thumping over Kulbhushan Jadhav's ICJ 'victory' just yet

It is high time we regulate peacetime espionage; we can make a beginning by giving the accused the right to consular access.

 |  6-minute read |   20-05-2017
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Let us cut out the pretence and jingoism and admit that we all spy on each other — often with hostile intent. States have done so ever since they came into being.

The activity is not only clandestine, it also operates on an implicit principle of mistrust. Though the fountainhead of spying is the state itself, it takes no responsibility for its citizens when caught, with or without pants.

To that extent, the Indian government indeed deserves a pat on the back - I am taking here at face value the claim that Kulbhushan Jhadav was not engaged in any subversive activity.

But, perhaps, given its agenda of muscular nationalism, hypothetically speaking, the Modi government would have found it difficult to wash its hands of Jhadav even if his activity was not above board.

So, this is one "institutionalised activity" of the sovereign state to which it will never admit. Result: Spies are not expected to look at the parent country for help or acknowledgement, least of all a badge of honour.

Because to offer them assistance would be a tacit admission of your nefarious activity on foreign soil. Interestingly, diplomats too often engage in almost similar activity - only it is described as intelligence gathering in official parlance - an activity for which they enjoy virtual immunity; whenever diplomatic ties nosedive and there are tit-for-fat expulsions, they are simply given a rap on the knuckles and bundled out of the host country, often like a sack of potatoes in the dead of the night.

kulbhushan_051917082835.jpgFor spies, there is no badge of honour, no requiem either. Photo: Reuters

Even in cases where the envoy is suspected of subversive activity, parent embassies are able to cover themselves with the fig leaf of UN Charter and Vienna conventions.

Interestingly, Vienna happens to be the espionage hub of the world where all kinds of sensitive and classified information is peddled in the streets, often at a discounted price.

WikiLeaks' diplomatic revelations have conclusively established that nations eavesdrop not just on their enemies, but friends and allies, too. In fact, this seems to be a whole time job of some nations like the US and China.

Beijing, in fact, has turned industrial espionage into a fine art and is known to have sleeper cells - mostly comprising China born students studying in foreign universities.

And all this in its endeavour to establish economic and technological hegemony.

In one such infamous industrial espionage case a Chinese national was asked by a German competitor to pass on technology, which was at the heart of future product development of vacuum cleaners!

But individual spies despite being clandestine agents of the state have no legal locus standi whatsoever - they are persona non grata both in the country of origin and the one where they are arrested and doomed to die, without pageantry and ceremony.

Of course, there are numerous international treaties which provide that a spy "taken in the act" cannot be punished without previous trial.

So, the subversive does have a semblance of rights but there is nobody to invoke them for him, least of all the state of origin, unless the case is well publicised and human rights activists latch onto it.

In Kulbhushan's case the Pakistan military presided over his fate, going through the motions of a farcical trial, even though he is a civilian from all accounts. As against this, India had bent backwards to give Mohammad Kasab a fair trial.

Of course, Islamabad had assiduously refused to acknowledge him as a Pakistan national. Nor can an individual captured as a spy demand as a matter of right to be treated as a prisoner of war.

The summary execution of spies may be prohibited in international law but there is nothing to prevent a nation from cocking a snook at even the International Court of Justice.

Take the curious case of German national Walter Lagrand. Just hours before Walter Lagrand was due to be executed, Germany beseeched the ICJ for a provisional court order, requiring the United States to delay the execution.

Germany also initiated action in the US Supreme Court for enforcement of the provisional order. When the pending matter again came up in the ICJ, the United States took a very interesting plea that the Vienna Convention did not grant consular rights to individuals, only to states.

The ICJ finally held that the Vienna Convention on Consular Relations granted rights to individuals, and that domestic laws could not limit the rights of the accused under the convention.

Anyhow, the long and short of it is that US cared two hoots for ICJ's opinion and Lagrand was executed on March 3, 1999.

So, the stay order on Kulbhushan is a procedural modality; let us not start thumping our chests just yet. The ICJ is yet to give the final verdict and, more important, it remains to be seen what call the political and military establishment in Pakistan will take.

For the civilian government of Nawaz Sharif there is an escape route in the stay order; but whether it can cross swords with the military is anybody's guess.

Spy fiction has rendered a bigger disservice to practitioners of the art than even the agencies that employ them.

As adolescents we were fed a staple diet of urbane and charming spies with a chequered past who get entrapped in a murderous plot; by the time we stepped out of teens the spies had become suave and ruthless like Bond; but as adults we found they were more authentic and slightly boring replicas of ourselves.

In real time, intelligence gathering keeps the comity of nations ticking; it also determines what direction a nation will take. But there are no ground rules that determine the fate of those who engage in intelligence gathering.

As one expert says, "The activity exists in a legal penumbra, on the margins of legal treaties and on the edge of international legitimacy."

It is high time we regulate peacetime espionage; we can make a beginning by giving the accused the right to consular access. Such provisional measures were first ordered in the Lagrand case.

Spies are essentially expected to take care of themselves and not get caught. Kulbhushan is possibly not even a spy; he was a bonafide citizen, engaged in a bonafide activity.

Only he happened to be at the wrong place, at the wrong time, and in the wrong neighbourhood.

Also read: Indian media shouldn't dare Pakistan to kill Kulbhushan Jadhav

Writer

SS Dhawan SS Dhawan

The writer is the former editor of FPJ.

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