Before giving death to Kulbhushan Jadhav, Pakistan must answer six questions
Why would an Indian spy go to Pakistan without Pakistani documentation?
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Pakistan's decision to sentence Kulbhushan Jadhav to death is an act of extreme provocation, especially since the sentence has been given by a military court and not by the government of Pakistan.
The military courts of Pakistan have been acting notoriously in backdrop of the military-ISI-terrorist connections, and are part of the genocide unleashed in Balochistan, North Waziristan and Gilgit-Baltistan to ruthlessly silence dissent.
The death sentence also must be viewed in the backdrop of what Sartaj Aziz, Nawaz Sharif’s advisor on foreign affairs, said in December 2016 when he told a full Senate chamber that the dossier on alleged Indian spy Kulbhushan Jadhav contained just statements, and that additional evidence had to be collected.
Pakistan's Dawn newspaper quoted Aziz as saying, "So far, we have just statements about the involvement of the Indian spy in terror activities in Pakistan”. Geo TV had then quoted Aziz saying,"What the dossier contained was not enough. Now it is up to the concerned authorities how long they take to give us more matter on the agent."
A press brief released by Inter-Services Public Relations (ISPR) on April 10 stated that Jadhav — arrested from Balochistan on March 3, 2016 for his involvement in espionage and sabotage activities against Pakistan — was tried by FGCM under section 59 of Pakistan Army Act (PAA) and Section 3 of Official Secrets Act 1923, found guilty of all charges which he confessed to, and awarded death sentence.Was he really arrested in Balochistan? Photo: PTI
The brief further said that the accused was provided with a defending officer, and that his death sentence has been confirmed by Pakistan Army chief Qamar Javed Bajwa.
That India has been consistently asking for consular access to Jadhav since the day his arrest was announced is a well-known fact — one that Pakistan has consistently denied. The Army Act in any country is applicable to personnel of that army, both uniformed and civilians, no one else.
Not providing consular access to India and saying a defending officer was provided is a façade and the identity of the so-called defending officer is unknown.
India suspects that Jadhav, a retired Indian Navy personnel, was "snatched" by from Iran by Pakistani agencies in 2016. According to Pakistan, Kulbhushan is an Indian spy who was arrested near the Pakistan-Afghanistan border of Chaman in Balochistan for entering into the country illegally.
The Iranian government had also said that Jadhav, who was in that country, was not engaged in any illegal activity.
Why was his subsequent presence in Pakistan never credibly explained?
In a piece of video "evidence" Pakistan produced to prove Kulbhushan had confessed he is indeed a RAW agent, he can be heard saying he served in the Indian Navy till the 2001 Parliament attack happened. Post the attack, Jadhav went undercover as Hussain Mubarak Patel to gather information and intelligence within India, the video suggested.
But the confession seems to be tutored because if he was indeed an Indian spy, he wouldn’t be carrying Indian passport in the name of Hussain Mubarak Patel.
There is every indication that Kulbhushan was kidnapped from the Iranian side and handed over to the Pakistanis.
When news of his arrest broke, a well-connected Afghan journalist Malik Achakzai tweeted to report that Jadhav had been abducted.
On the same day, in Karachi, a former and very knowledgeable German ambassador to Pakistan Dr Gunter Mulack, said, according to the Dawn “that the Indian spy recently arrested in Balochistan was actually caught by Taliban and sold to Pakistani intelligence."
The story of Indian #RAW spy is as fake as others; he's sold by the smugglers mafia on Iranian territory a source from the area told— Malik Achakzai (@MalikAchkJourno) April 2, 2016
The sentencing of Kulbhushan Jadhav by Pakistan’s Field General Court Martial is miscarriage of criminal justice and violates the fundamental human rights of free and fair trial.
The issue with international human rights law is that though it creates a treaty obligation, it does not really create any international obligation vis-à-vis another state.
Vienna Convention on Consular Relations, 1967
Both India and Pakistan are parties to the 1967 Vienna Convention on Consular Relations. According to Article 36 of the Convention:
- Consular officers shall be free to communicate with nationals of the sending State and to have access to them.
- Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State.
- Consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation.
So, why did Pakistan turn down 13 requests for consular access to Jadhav?
The problem with international human rights law is that though it created a treaty obligation, it does not really create any international obligation vis-à-vis another state.
Another problem with the violation of international human rights law is that there is no international judicial forum for such violation to be challenged by a State.
Yet, India can take the help from the UN and bring this matter before the International Court of Justice as a matter of violation of treaty obligation owed to India and, in the process, create an international obligation for Pakistan.
Earlier precedents at ICJ
There have been three precedents at the ICJ where a national of another State has been prosecuted and sentenced, and where both are parties to the treaty and the protocol: Paraguay versus USA in 1998; Germany versus USA, 1999 (known as the La Grand case); and Mexico versus USA, 2003 (the Avena and Other Mexican National case).
All the cases involved the death penalty awarded by the US to the nationals of Paraguay, Germany and Mexico in violation of the treaty.
Interestingly, all the petitioners, that is, Paraguay, Germany and Mexico were provided with the relief they were seeking — an injunction on the death penalty.
Clearly, if Jadhav’s case reaches ICJ, it might hold the execution till the issue of merit is settled.
Amnesty International raps Pak military court
Amnesty International has criticised the Pakistan military court for awarding death sentence to Jadhav. It says, "The death sentence given to Kulbushan Jadhav shows yet again how Pakistan's military court system rides roughshod over international standards".
Terming Pakistan's military courts an abusive system, the human rights organisation said: "Stripping defendants of their rights and operating in notorious secrecy, military courts do not dispense justice but travesty it. They are inherently abusive systems that are best left to deal with issues of military discipline, not any other crimes."
There are six questions that Pakistan needs to answer about Kulbhushan Jadhav:
1. Why did Sartaj Aziz say there was insufficient evidence against Jadhav?
In December 2016, Pakistan prime minister’s adviser on foreign affairs, Sartaj Aziz, was quoted as saying that the government was presented with “insufficient evidence” on Jadhav.
He had said that the dossier received by the government had only statements and there was no conclusive evidence against him.
2. Is the confession video authentic?
The MEA has said that the fact that he made statements of his own free will challenges credulity and indicates that he was tutored. The editing in the video also raised doubts about how much of what Jadhav said could be taken at face value.
3. How does Islamabad explain Jadhav's Indian passport?
Why would an Indian spy go to Pakistan without Pakistani documentation? What experienced spy makes such a rookie mistake?
4. Was he really arrested in Balochistan?
There’s also no proof of Jadhav’s arrest having taken place in Balochistan.
5. Why block consular access to Jadhav?
India repeatedly asked for consular access to Jadhav, which was never granted.
6. Why was the state being secretive about the trial?
Finally, if there is as much evidence against Jadhav as Pakistan claims, then why was his trial a hush-hush military court affair? Pakistan wants proof against 26/11 mastermind Hafiz Saeed, but not before hanging an Indian citizen.
This clearly indicates that the case involving Indian citizens is conducted with pre-mediated motive and the trial by a military court is nothing but sham. Why is there no military court for Saeed?
Options before India
External affairs minister Sushma Swaraj told the Rajya Sabha that she would "go out of the way to ensure justice for Kulbhushan Jadhav".
"We are in constant touch with his family. If anything, he (Kulbhushan Jadhav) is the victim of a plan that seeks to cast aspersions on India to deflect international attention from Pakistan's well-known record of sponsoring and supporting terrorism.”
Pakistan PM Nawaz Sharif has reacted to the development saying, “We want a peaceful neighbourhood... shared prosperity rather than mutual suspicion... at the same time, despite our earnest desire for peaceful co-existence, we cannot remain oblivious to defending our sovereignty and protecting our independence."
And Pakistan envoy Abdul Basit said, “A terrorist should meet his fate for whatever he did.”
Clearly, Pakistan has also sent a strong message that it will not budge from the stand it has taken on Kulbhushan Jadhav.
What is pertinent now is that India act aggressively and send out a strong message to Pakistan. Some of the options before India could be:
1. Put Pakistan on notice.
2. Issue travel advisory on Pakistan.
3. Scale down diplomatic ties.
4. Withdraw most favored nation status.
5. Raise stakes for Pakistan.
6. Start working to harness full potential of Indus Water Treaty.
7. Expose Pak terror in Balochistan.
8. Raise costs for Pakistan.