Khulb­hushan Jad­hav: The Story Thus Far

Libertatem Magazine - - Contents - by Prith­wish Roy

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 by 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 were noth­ing short of “state spon­sored ter­ror­ism” and al­leged In­dia of sup­port­ing and fund­ing the Baluch sep­a­ratists in their cam­paign for a sep­a­rate Baluchis­tan.

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, 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 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 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 pris­oner 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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