Kulbhushan Jadhav: The Story Thus Far

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The story making headlines for quite some days now is that of Kulbhushan Jadhav. For the Pakistani dailies it is a story of a major political catch by a Pakistani counter-intelligence operation and a means of slinging mud towards it Indian counterpart’s security bureau, while for India the story is that one of its nationals has been arrested and sentenced to death arbitrarily, without any fair trial, or any trial for that matter.

To give a brief about the facts of the issue, Kulbhushan Sudhir Jadhav, an Indian national was arrested in Baluchistan, Pakistan over charges of terrorism and spying and furthermore it was alleged that all these acts were carried on at the behest of the Indian intelligence organization, Research and Analysis Wing (R.A.W.). The Indian account of the same story is that Kulbhushan Yadav was a former naval officer who took premature retirement and was abducted from Iran. One of the key evidence which has been made public and on which heavy reliance has been placed on the Pakistani side is a video recording of Jadhav wherein he confessed that he was still serving the Indian Navy and was working in Pakistan on behalf of R.A.W., referring to the same, Lt. General of Pakistan Army, Asim Bajwa stated that Jadhav’s act was nothing short of “state-sponsored terrorism” and alleged India of supporting and funding the Baluch separatists in their campaign for a separate Baluchistan.

kulbhushan
Senior Advocate Harish Salve at ICJ

In its counter, Indian Union Minister Kiren Rijiju claimed that the video was completely doctored and was an attempt to cook up stories and defame India. He further added that Jadhav owned a cargo business in Iran and during the course of carrying out his business in Bandar Abbas and Chabahar ports he either strayed into Pakistani water or was lured into Pakistan and fake documents were planted on him by the ISI.

On the 10th of April, 2017, the Pakistani Field General Court Martial sentenced Jadhav to the maximum punishment, the death penalty.

Looking at the legal implications that have arisen out of the incident, as per legal analysts all over, the incident is a blatant violation of international human rights law on multiple grounds. Firstly, the right to free and fair trial has been absolutely negated by the Pakistani Field General Court Martial. A roadblock for enforcing this right internationally is the fact that neither India nor Pakistan is a party to any international instruments which may provide relief to Jadhav on account of violation of the international humanitarian law. However, India does have a recourse and that is by turning its head towards the United Nations and bringing the matter before the International Court of Justice as a violation of the treaty obligation owed to India under the Vienna Convention on Consular Relations, which both India and Pakistan have ratified. The treaty also has an ‘optional protocol’, to which again both India and Pakistan are parties too. The protocol paves the way for a recourse as it provides for compulsory of the ICJ between any disputes arising out of the contracting states. The last case which went to the ICJ on a similar matter was the ‘Avena and Other Mexican National’ case in which the ICJ has stayed the death penalty, vide an injunction order, till the case was settled on merits. In the given case it is evident that India has a very strong case given the fact that the trial by Pakistan was itself a sham and grossly violative of international human rights.

Another major issue with the trial is the fact that it was carried out and the punishment awarded on the basis of the confession given by Jadhav. However, any neutral party would argue that any seasoned interrogator can break down anyone and obtain any form of confession and which is precisely why many courts refuse to put any weight on confessions obtained while in custody. Basing an entire trial upon such a confession and going on to award a death penalty on the basis of such a confession appears to be void of any merit and degree of fairness. Furthermore, no consular access has been given to India thus far by Pakistan. Former Union Minister and BJP leader R K Singh has fueled speculation that Kulbhushan Jadhav has either been already executed or that the torture carried upon him has resulted in his death, which is why the death sentence has been passed to cover it up. India has had sixteen requests for consular access to Kulbhushan rejected by Pakistan, and the grounds for rejecting the same has been that it is a matter of defense and national security.

The conclusion of this saga, although, might restless on the legal recourses and more on the persuasive diplomatic acts and dialogues. Intelligence gathering in other states, post the Cold War, is fairly routine and precedents of hanging anyone caught in such an act have been rare, or unreported and thus an optimist would hope that Pakistan would know better than to hang a foreign national, based on a controversial trial violative of international norms. On the contrary if Pakistan does prove unbent and unbound on its resolve and goes on with the death penalty on Kulbhushan, if it hasn’t already done so, then it goes on to show their intent to create a shock and awe effect on an international platform and the response of India, should not be mere diplomatic dialogue but something more concrete and deterring and in the lines of the controlled aggressiveness which was put on display when the surgical strikes were carried out.

The case is not that of Pakistan having an upper hand in terms of holding a political prisoner as even India has under its custody intelligence officers from across the border as well, but the difference lies in how the same is being dealt with by the neighboring countries while India has warned of strict consequences if the punishment is carried out. A recent example would be pointing out that a Supreme Court bench consisting of Justice AK Sikri and Justice Ashok Bhushan, while dealing with an issue related to release of Pakistani prisoner from Indian prison on completion of their terms brought to light their knowledge about the Kulbhushan Jadhav incident but went on to reiterate that they release prisoners on completion of their terms even when no reciprocity is shown by the country of those prisoners and that they were “proud of our constitution” and the Court had directed the Centre to release and repatriate 61 Pakistani prisoners from Indian prisons. Thus it can now only be hoped that Pakistan matures about the issue and releases Kulbhushan Jadhav, and the Indian government should in the meantime leave no stone unturned in their efforts, either by diplomatic means or otherwise, in ensuring that the life of their national is saved.

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