International Laws on Espionage is a grey area. While espionage in itself is illegal, the act is practised widely. Kulbhushan Jadhav is a claimed suspect of one such act. Although there are standard laws, different cases are often dealt with differently depending on the specific situations. But this case remains to be an interesting one because of the flawed nature of the trial of the accused Indian spy which was a clear violation of the International Laws on Espionage.
Jadhav was denied access to his basic rights that were found illegal on the part of the trying country, Pakistan. India took cognizance of the situation and moved the International Court of Justice and won the case of ensuring Jadhav of his basic rights as well as drew attention to the gross violation of the accords that Pakistan is a signatory of.
The act of spying to obtain the information about plans and activities or intentions of a foreign government or entity is known as Espionage.
A Spy is a person who collects information and reports about the activities of another organization or country at the behest of their country.
A Brief History of Espionage
The practice of spying has existed since ancient times. Spies try to infiltrate a country to protect the interests of their homeland or often carry out acts that jeopardise the security of other nation for their benefit. They aim to gather intelligence or information of sensitive nature that lie safely within a country.
These intelligence groups have often been called out for the inhumane ways adopted by them to torture their captives which are a gross violation of human rights. This practice was most known in the era of World Wars and especially in World War II. In the modern era, every country has an intelligence agency and agents working in other countries serving various purposes despite the unlawful nature of the act, if apprehended.
International Laws on Espionage
Fascinatingly, there has always been a grey area around International laws on Espionage. These rules needed a specific interpretation depending upon the case and the situations like peacetime and wartime espionage. There have been various laws regarding the treatment of a spy in the past that have evolved over a few centuries.
Espionage in its basic essence is intended to occur without detection.
There is an ambiguity when it comes to international law and espionage. The emergence of these two happened at different point of times in history. Espionage as an act has prevailed since the beginning of the history whereas International Laws were made fairly recently.
Moreover, the foundation stone of espionage lies on treachery, lies and deceit while International Law is completely opposite which aims to bring an order while following a set of rules and ensure ethical practices.
One of the earliest conventions, Brussels Declaration of 1874, in Article 20, observed that a spy caught in the act shall be tried and treated by the rules followed by the army that captured it. However, a spy who escapes undetected shall not be liable for the act committed in the past.
The Hague Regulations 1907, sheds light on the act of Espionage in Articles 29, 30 and 31. It states that a spy caught in the act shall not be punished without previous trial. But a spy who has committed the same and re-joined his force, shall not be tried for his previous act of espionage but only be treated as a prisoner of war.
Geneva Convention IV, in Article 5 clearly states that a spy caught in the occupied territory shall nonetheless be treated with humanity and should not be deprived of the basic rights in terms of a fair and a regular trial.
In simple terms, a ‘scout’ who wears a military uniform or holds a designation, if caught behind the enemy lines, shall be tried and treated as a prisoner of war because there is nothing treacherous or deceitful about scouting or a reconnaissance mission.
But a person who does not wear a military uniform or hold a designation in the military, is not entitled to be treated as a prisoner of war. And he could be liable to severe punishments as deemed by the captors.
While these rules uphold during the act of spying, a person who has re-joined his military organisation after spying, if caught after the act has been done, cannot be tried for the act of spying.
These successive acts aimed to bring espionage under the ambit of illegal activities while ensuring rights on humanitarian grounds.
But these laws deal with ‘War Time Espionage.’ There is no such clear law when it comes to ‘Peace Time Espionage’ or espionage where there is no war involved and depends on the specific case involved.
The importance of world peace was emphasised on greatly after World War II. And interestingly, this act of espionage has not been discussed in the current era of peace. Hence it remains to be just an art used in war.
Even though these laws talk about the unlawful nature of the act of espionage or protecting the rights of spies to an extent, spying is a tactic practised by almost all the countries that themselves have contributed to the formulations of these laws or are the countries that follow these laws.
The Inception of the case
In March of 2016, Pakistani security forces apprehended an Indian operative from the Balochistan province of the country. The detainee was supposedly working with the Indian Intelligence agency, R&AW. A counterfeit passport was claimed to have been recovered from the Indian spy who worked under the alias of Hussain Mubarak Patel, originally known as Kulbhushan Sudhir Jadhav.
The spy was suspected of orchestrating attacks on Pakistani nationals within the country and empowering and providing aid to the rebels and separatists in the turmoil witnessed by the province of Balochistan and unrest in Karachi.
The Indian agent was asserted to be active Indian Navy personnel serving the force, due to retire in the year 2022 who had begun operations with the Indian Intelligence in the year 2003. The Indian agent had been carrying out subversive activities in the country and destabilizing the order in Pakistan as observed by a Pakistani military court. Jadhav was charged with espionage where he was sentenced to death in April 2018.
India’s Stand on the Issue
India’s stand on the capture of one of its citizens was very consistent which heavily criticized the Pakistani side. According to the Indian Ministry of External Affairs, Kulbhushan Jadhav who had already retired from the Indian Navy in 2002 had established a business network in Iran and was wrongfully captured, brought to Pakistan, and framed deceitfully.
An Indian national was held on foreign soil on the counts of espionage and India took the matter seriously to protect the rights and interests of its citizen and a former Armed Forces personnel. India sought consular access to its citizen for the trial that was to take place which were repeatedly turned down by Pakistan. India has always maintained its stand on the safety of its citizens overseas. It was termed as a pre-meditated murder by the Indian officials.
There were multiple tries to brainwash Jadhav and forced him to admit that he was an Indian spy. Videos of the confession were released by Pakistan that seemed heavily edited and the authenticity was immediately rubbished.
The case taken up by a military court in Pakistan that gave its verdict on the case which sentenced him to death was rejected by India which further appealed to the International Court of Justice sighting violations by Pakistani officials in the handling of the case.
Footage of Kulbhushan Jadhav confessing to his crimes as charged was released which was edited heavily, added more towards hinting foul play by the neighbouring country of Pakistan. In the video, the supposed spy blatantly confessed to having conducted operations in the country with the help of the Indian Intelligence.
A second video was released after the visit of his family at a facility where he seemed furious with the Indian side to have influenced his family to convince him to deny the allegations levelled against him and reiterated that he had already confessed to his crime of espionage sponsored by India.
The second video was largely seen as propaganda trying to sway the decision of the International Court of Justice. India dismissed the videos because they lacked authenticity. The Indian authorities expressed their anguish over the meeting of Jadhav with his family which was not observed in the spirit of diplomacy as negotiated.
India’s case in the International Court of Justice
India filed a petition in the International Court of Justice, a UN body, stating multiple egregious violations of the Vienna Accords on Consular Relations (VCCR) on 8th May 2017, requesting to invalidate the death sentence pronounced and grant immediate freedom to Jadhav.
Under Vienna Accords on Consular Relation, the rights of access to consular officials when a national of their country is imprisoned, detained or in custody is protected.
Pakistan challenged the jurisdiction of ICJ in the case due to the nature of the case that was related to espionage wherein India had declined to co-operate with Pakistan in the investigation but was dismissed.
The ICJ observed that the case was well under its jurisdiction citing Optional Protocol to VCCR to which both the states were signatories.
Pakistan was under the obligation to do so under the Vienna conventions regardless of the nature of the allegations of espionage levelled against him.
The court further noted that Pakistan had indeed failed to inform the competent Indian authorities without delay about the capture of its citizen. Furthermore, he was denied the right to consular access and the right of his consular officials for the arrangement of legal representation.
This was seen as a major victory for India. The court sought Pakistan to abide by the VCCR and provide the rights as stated and review its judgment on the death sentence.
Uncertainties looming on Jadhav
The International Court restored India’s position of providing Jadhav with legal representation and ordering consular access. However, India’s plea of acquitting Jadhav immediately was rejected and so was the request for annulment of the death sentence.
The bench stated that such a move was well beyond the jurisdiction of the ICJ. It could only reinstate the position that India had been denied.
The court asked Pakistan to take cognizance into its failure of a fair trial and review and reconsider the conviction by the means of its own choosing.
Expectations from the Foreseeable Future
Jadhav’s sentence shall be reviewed and this time with a proper legal representation where India shall be able to support the interests of its citizen to build a strong case in his defence hoping to bring him back safely. It shall also be Pakistan’s duty to carry out the proceeding in a fair manner with no prejudice against him like a truly democratic nation.
The curious case of Kulbhushan Sudhir Jadhav is one of the interesting yet horrifying ones. It intrigues deep interest among the masses due to the never-ending uncertainty around his real identity. The gross mishandling of the case by the Pakistani government has indeed been worthy of condemnation on various levels for violating and not upholding the sanctity of the international accord that it is a signatory of. The case as presented by the trying country of Pakistan showed several inconsistencies in the International Court of Justice.
The case has garnered deep interest all around the world. The Republic of India hopes for a fair trial and a safe acquittal of its retired Navy officer.
 External Affairs Minister’s Statement in Rajya Sabha on the case of Shri Kulbhushan Jadhav, Indian Citizen, awarded death sentence by a Pakistani military court, Ministry of External Affairs, April 11, 2017, Available Here