The Plight of Kulbhushan Jadhav
April 28, 2017 | Expert Insights
What is the fate of the incarcerated Indian national?
A retired Naval officer, Jadhav was detained by counter-intelligence Pakistani officials in Baluchistan where he was travelling with an Indian passport under the name of Hussein Mubarak Patel.
His arrest, over a year ago, has been one amongst many by Pakistan. The nature of his arrest, on the other hand, has a sense of intrigue attached to it.
Soon enough, the countries were embroiled in another bitter dispute when Kulbhushan Jadhav’s death sentence was passed by Field General Court Martial (FGCM) under the Pakistan Army Act. Reports from India doubt the validity of Jadhav’s status as a spy while Pakistan views this as another covert move uncovered by their forces.
What were the grounds for conviction?
Pakistan has largely based the judgment, in a court whose judges are not required to hold any degree of law, on his self-confession pertaining to his association with the Research & Analysis Wing (RAW). The charges against Jadhav include participating in espionage and other subversive activities against the state.
Jadhav was purported to be in Iran when he was captured along the Iran-Pakistan border. Iran has stated that an enquiry will be launched into the matter but India alludes to a possible case of abduction to explain his presence along the border.
While many Indians have been captured by Pakistan over the years, including many assumed prisoners of war still under Pakistani custody, Jadhav’s case stands out owing to the lack of evidence regarding his passport name. Jadhav’s family has claimed they thought he was just a businessman who happened to work in Iran and Pakistan and any connections to RA&W were never disclosed to them.
What do the involved nations propose to do?
UN Secretary General’s spokesperson Stéphane Dujarric answered an Indian journalist’s question on the issue by emphasizing the “need for the parties to find a peaceful solution and to engage through dialogue.”
The United Nations, from the time of former Indian Prime Minister Jawaharlal Nehru, has failed to take on a concrete position on matters regarding India and Pakistan, particularly those pertaining to the disputed territory of Kashmir.
As the charges against Pakistan for sponsoring terrorism have gradually increased, Pakistan can utilize the case of Jadhav to provide corroboration to their claims of excessive overt and covert use of physical coercion by the Indian Army. There does exist the possibility that Pakistan might use Jadhav in a trade-off for Pakistani prisoners in Indian custody.
Does the accused have any Rights?
Pakistan and India are both signatories to International Convention on Civil and Political Rights. Provisions of the Convention emphasize the need to protect the Right to Life and Liberty. Article 6(1) of the convention prevents arbitrary deprivation of life without following the due process of law. Article 7 states that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
Article 9 guarantees the right to life and security of person. As per this provision, no one shall be subject to arbitrary arrest or detention except in accordance with the procedure established by law.
In the present case, it is clearly seen that the rights guaranteed in the ICCPR is clearly violated. The self incriminating confession violates his Right under Article 14 of the convention. Further, there is no conclusive proof on the fairness of the trial in the martial court nor is there any evidence to prove that Jadav was given an opportunity to defend himself.
Does the Indian Government have Consular Rights?
Foreign nationals who are arrested or detained be given notice "without delay" of their right to have their embassy or consulate notified of that arrest. The Consulate on being notified can request the respective country permission to meet the arrested nation. These are known as consular rights. As per provisions of the Agreement on Consular Access between India & Pakistan signed on 21st May 2008, India is entitled to the right to consular access to Indian prisoners held captive in Pakistan. Pakistan is obliged to grant the Indian authorities access to meet Kulbhushan Jadav. This agreement is enforceable based on the legal principle, Pacta Sunt Servanda translated to “treaties shall be complied with”. State practice over the centuries has recognized the fundamental significance of pacta sunt servanda as a principle or rule of maintaining international relations. Pakistan has denied India consular access on request 16 times which clearly proves the violation of the agreement.
Can India appeal against the Martial Court Order?
Pakistan’s breach of international law and Jadhav’s death sentence may be effectively challenged by recourse to the International Court of Justice(ICJ). Furthermore, any dispute arising with respect to the provisions of the VCCR can be heard in the ICJ by virtue of both India and Pakistan being parties to the Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes, 1963.
Jadav’s mother Avanti Jadhav filed an appeal u/s.133B of THE PAKISTAN ARMY ACT, 1952 against the Court’s death sentence. As per the provision of the Act, any person to whom a court-martial is awarded a sentence of death, within forty days from the date of announcement of finding or sentence can file an appeal to a Court of Appeals.
India being denied consular access raises concern over Jadav’s wellbeing in Pakistan. Though the appeal file can prevent Jadav’s imminent death for 40 days, the government of India must take more assertive steps. If India approaches the ICJ and invokes the provisions under Art 41 of the ICJ Statute, India could effectively prevent execution of Jadav’s death sentence.
Dialogue and diplomacy can play vital role in resolving conflicts between two countries. Platforms for effective dialogue, such as the United Nations, have not been favorable to either country in cases of conflict. Current territorial disputes stand to be used as a pawn in the diplomatic affairs to further either country’s objectives. The ambiguity on Pakistan’s side to release pertinent information regarding the case raises suspicions against them. Moreover, the turbulent nature of espionage through national intelligence services has increased the sensitivity of the case. Future proceedings stand to affect the delicate relations between the two nuclear armed countries.