Serving Indian Navy officer Kulbhushan Jadhav was sentenced to death by a Field General Court Martial (FGCM) under the Pakistan Army Act (PAA) for running a clandestine terror network aimed at destabilizing the country, Jadhav’s arrest was a major counterintelligence victory against Indian subversion.
By Jay M Sanklecha
Earlier this week, a Pakistani military court sentenced Indian national Kulbhushan Jadhav to death for his alleged involvement in espionage and sabotage activities. However, the trial and sentencing of Jadhav is questionable under international law.
First, Jadhav’s prosecution before a military court, as opposed to a civilian court, raises concerns about a fair trial being given to him. Article 14 of the International Covenant on Civil and Political Rights, to which India and Pakistan are signatories, guarantees the right of fair trial before an independent and impartial tribunal.
The trial of civilians before a military court is almost unanimously considered to be a violation of the right to a fair trial, as military courts are not regarded as independent and employ exceptional procedures. Military courts have been traditionally constituted for the trial of transgressions committed during a war. Their constitution for trial of transgression committed outside the context of a war has been severely criticized by the international community.
The International Commission of Jurists in its June report identified several lacunae with Pakistani military courts, including the absence of independent judges, no provision for public hearings, unavailability of appeals to civilian courts, lax rules of evidence and the absence of detailed reasoned judgements.
Second, Pakistan’s refusal to grant India consular access to Jadhav pending his trial appears to be inconsistent with its obligations under Article 36 of the Vienna Convention on Consular Relations (VCCR). India reportedly made as many as 13 requests to Pakistan, between March 25, 2016, and March 31, 2017, for consular access to Jadhav. Each time their request was denied. Article 36(1) of the VCCR broadly encompasses two distinct obligations: of notification and access. The notification obligation, inter alia, requires the receiving state (in this case, Pakistan) to inform the consul for the sending state (in this case, India), without delay, about the arrest or detention of its national.
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India claims that Jadhav was kidnapped from Iranian soil, Pakistan has irrefutable evidence of this “State Actor” crossing over into Balochistan from Iran. Iran’s investigations led to the dismantling of the Jadhav network in Chahbahar and adjoining regions. One of Jadhav’s main tasks was to sabotage the China-Pakistan Economic Corridor (CPEC) through terrorist action, propaganda was to be used to create disharmony among the Baloch nationalist political parties. Submitting dossiers to the UN containing proof of RAW agents working under diplomatic cover at Indian High Commission in Islamabad (present Indian National Security Advisor (NSA) Ajit Doval openly boasts about it), Pakistan urged the UN to restrain India from attempting to destabilise Balochistan. Evidence regarding Jadhav’s arrest was handed over to some world powers, including the US and UK.
Pakistanis across the board are unanimous that the death sentence to a spy involved in not only destabilizing Pakistan but carrying out terrorist activities was the correct decision. The consensus is that India will certainly react, diplomatically as well as on other fronts. While we should be prepared for Indian provocations, the govt must not back down in the face of Indian threats. Appeasement and/or deference can go only so far. Jadhav’s death sentencing by FGCM was according to the tenets of military law for trial of spies and saboteurs, serving as a warning to those engaged in terrorism in Pakistan. A strong message has been given to India and the international community that Pakistan will not take any Indian interference lying down. Being threatened by repercussions by the Indian Prime Minister and the BJP hierarchy was not a surprise.
While the Indian media literally went berserk, Sushma Swaraj, the Indian External Affairs Minister said in Parliament that if the sentence was carried out, “the government and people of India will regard it as a case of premeditated murder.” Labelling Jadhav as the “son of India”, she said that India would go to any extent to save him. Ms Swaraj also warned Pakistan of the impact this would have on bilateral ties. BJP came under fire in the Indian Parliament, to quote Congress leader Mallikarjun Kharge. “Pakistan has sentenced Kulbhushan Jadhav on lies and false allegations of spying. Why is the government silent?” He said the govt would be seen as weak if no action was taken against the death sentence.
BJP’s Subramanian Swamy underscored the Modi government’s sustained venom against Pakistan when he asked the Indian government to ‘declare Balochistan as an independent state’ and urged the Baloch residing in New Delhi to form a government-in-exile, “And after Jadhav, if Pakistan does another atrocity, Sindh will be seceded out of Pakistan. Ultimately Pakistan will end up in four pieces.” Coming from someone in the BJP hierarchy confirmed India’s long history of fanning terrorism inside Pakistan by sponsoring terrorist outfits in Balochistan, the Federally Administered Tribal Areas, and Karachi. Jadhav’s case only substantiates India’s state involvement in subversive activities in Pakistan, he is a “state actor” and not a non-state actor. For years India has decried the activities of so-called “non-state actors” from Pakistan alleging without credible evidence that ISI “handles” them. How can India refute being a sponsor of state terrorism when a serving military officer is revealed as a RAW “state actor”?
Jadhav is not the first RAW operative to be caught in Pakistan, a good number of Indian spies have been apprehended and imprisoned. The most notable was Ravindra Kaushik, a street actor who, after extensive training in Delhi succeeded in getting a civilian clerk’s job in the Pakistan Army’s Military Accounts Department. He kept on passing information to RAW from 1979 to 1983. RAW agent Sarabjit Singh (also known as Manjit Singh) was convicted of terrorism and spying by the Pakistan Supreme Court for a series of bomb attacks that had killed 14 people in Lahore and Faisalabad during 1990. Arrested in 1973, Kashmir Singh spent 35 years in prison in Pakistan. Throughout his incarceration, he insisted he was not a spy but after crossing the border to India once he was pardoned on death row by then President Pervez Musharraf he boasted he was “only doing his duty as a spy”. All these were “state actors” belonging to RAW.
The Indians are already on the offensive. On April 6 a retired Pakistan Army officer Lt Col Muhammad Habib Zahir disappeared from the proximity of India’s border with Nepal where he had gone for a job interview after receiving a lucrative offer via a computer-generated telephone call from Britain and a domain and its associated website hosted in India. The Nepal police are still searching for him but the apparent abduction has led family members to believe that Indian intelligence agencies may have taken him.
The inflammatory Indian rhetoric targeting Pakistan across the divide is very revealing about its intentions. The vitriol intensity over the years has force-multiplied many times after the launch of the China Pakistan Economic Corridor (CPEC), India should not have any illusion that China will stand by and let the Indians sabotage the CPEC, China is an equal partner in the CPEC and has far more at stake than to be cowed down by Indian rhetoric.
India is going out of its way to exert political and diplomatic pressure, there is every likelihood of military adventure, things will likely heat up on the Line of Control (LoC) and the working boundary. Already quite formidable an Indian communications offensive will pose a tough challenge for Pakistan. Already facing an undeclared “hybrid war” being conducted by India, Pakistan should prepare itself for an even greater onslaught. Once “state actor” Jadhav confessed to his crimes in which innocent people were killed, the bottom line remains that the death sentence is the right decision. Indian threats notwithstanding, Pakistan’s message must remain clear and unambiguous, anyone operating against the State will be severely dealt with.
The writer is a defense and security analyst.