Kulbhushan Jadhav case: Modi govt deserves kudos for getting strategy right and showing intent, political will
The Indian government has put a premium on the life of Kulbhushan Jadhav — a statement that may not apply in previous cases of detention of Indian nationals in Pakistan.
In earlier cases such as the one involving Sarabjit Singh, India’s focus has been on securing their release through bilateral negotiations.
The space for bilateral negotiations to secure Jadhav’s release was slim.
It is here that the Indian political leadership needs to be applauded.
Sarabjit Singh, a farmer from Punjab, in a state of inebriation had strayed on to Pakistan territory on 30 August, 1990, from his hamlet on the India-Pakistan border. Singh was promptly arrested by Pakistani authorities, falsely implicated in the Lahore and Faisalabad bomb attacks, convicted for a crime he did not commit and sentenced to death in 1991.
India maintained all along that Singh was innocent, his crossing over to the Pakistani side of the border was inadvertent, he had nothing to do with espionage or bomb attacks and he should be released and sent back home.
Singh’s case climbed up the judicial ladder till it reached the Pakistani Supreme Court, which upheld the verdict. The fast-track trial, according to several accounts, was fundamentally flawed. Pakistan’s entire case rested on an ostensible “confession” by Singh which was obtained under duress and torture despite “no material evidence linking him to the blasts”.
Despite India’s protestations, Singh was never released. His death sentence was repeatedly postponed due to mercy petitions till the Indian national was beaten to pulp, apparently by inmates, in April 2013. Foul play and involvement of jail authorities in the crime have never been ruled out. Singh never got recourse to proper medical help. India’s requests for treatment in a third country were also turned down. Singh eventually succumbed to injuries.
The Congress-led UPA-2 government ensured a state funeral for him, but at no stage was Singh’s case taken to the ICJ despite Pakistan’s glaring violations of international treaties, norms and conventions. Neither were the cases of Kashmir Singh, Ravindra Kaushik, Surjeet Singh Satpal or Sheikh Shamim.
In the list of several Indian nationals accused of espionage, arrested and sentenced to death in Pakistan, India’s focus has been on securing their release through bilateral negotiations instead of knocking on the doors of the International Court of Justice (ICJ) at The Hague, whose ruling is obligatory for member states.
Most of these negotiations have failed to produce results. Sarabjit was brutally assaulted to death in a Lahore jail. Kaushik, a R&AW agent who had been working undercover since 1975 and had managed to infiltrate into the Pakistan army, where he worked with the military records department, faced a death sentence when his cover was eventually blown in 1983. Though his death sentence was later commuted to life imprisonment, Kaushik died in a Pakistani prison in 1999 after contracting tuberculosis.
Surjeet Singh and Kashmir Singh were lucky to have been released, but not so Satpal or Sheikh Shamim who breathed their last on Pakistani soil. Throughout history, India’s record in securing the release of Indian detainees in Pakistan has been patchy and often unsuccessful. Negotiations may work when bilateral ties are in working condition, or India has enough leverage to force a deal.
In contrast, Jadhav’s case erupted on to the scene when India-Pakistan ties were going through one of their worst phases. The retired Indian naval officer was allegedly kidnapped from Iran, where he conducted a legitimate business, on 3 March, 2016, and sentenced to death in April 2017 by a kangaroo military court in Pakistan under circumstances that were in gross violation of the Vienna Convention.
Pakistan’s motivation behind the abduction of Jadhav was quite possibly to prove that India has been instigating unrest in Pakistan’s restive Balochistan province, where a secessionist movement has long been underway. Balochistan has been witness to brutal oppression and human rights violations for decades as Pakistani security forces and intelligence agencies have carried out mass killings, targeted killings and enforced disappearances to control the separatist movement.
Jadhav fell between the twin stools of Pakistan’s strategic necessity and worsening bilateral relations which reached their nadir when India conducted cross-border strikes across the LoC on 20 September, 2016, to avenge the fidyaeen attack by Jaish-e-Muhammad terrorists on an army base in Uri that had killed 19 Indian soldiers.
Evidently, the space for bilateral negotiations to secure Jadhav’s release, once he was sentenced to death by a fast-track "military court" in Pakistan without the Indian national getting recourse to legal representation, was slim.
It is here that the Indian political leadership needs to be applauded. In pursuing Jadhav’s case in the International Court of Justice, India not only broke new ground but simultaneously managed to diplomatically corner Pakistan through the favourable verdict that was delivered by The Hague-based court on Wednesday.
The first thing to consider is that ever since Jadhav’s abduction by Pakistani intelligence agencies, the government led by prime minister Narendra Modi and external affairs minister Sushma Swaraj has chosen the correct strategy and more importantly, shown a great deal of intent and political will in fighting the case and not letting Pakistan get away by subverting principles of natural justice and fair play.
In putting up a crack team led by noted jurist Harish Salve, whose stellar submission at the Hague earned India an unequivocal legal and diplomatic victory, the Indian government has put a premium on the life of an Indian national — a statement that may not apply in previous cases of detention of Indian nationals in Pakistan.
Pakistan has been claiming a face-saving victory because the ICJ has refused to annul the death sentence and ask Pakistan to release Jadhav immediately, but a reading of the judgment shows that on most of the points barring the two already mentioned, the ICJ has almost unanimously voted in India’s favour, and the language of the judgment is such that even on the points where the ICJ seemingly upheld Pakistan’s position — jurisdiction of military courts and immediate release of Jadhav — the ‘victory’ for Pakistan is pyrrhic.
The ICJ is clear in its judgment that Jadhav cannot be executed by Pakistan unless given a fair trial and consular access. It also urges Pakistan to “effectively review” and “reconsider” its sentence to make it certain that the retrial gives full weight to upholding of human rights and international laws that its verdict has breached.
The relevant paragraphs can be discussed threadbare, but the gist of the judgment is in paragraph 147, where it says: “To conclude, the Court finds that Pakistan is under an obligation to provide, by means of its own choosing, effective review and reconsideration of the conviction and sentence of Mr Jadhav, so as to ensure that full weight is given to the effect of the violation of the rights set forth in Article 36 of the Vienna Convention, taking account of paragraphs 139, 145 and 146 of this Judgment.”
This is where Pakistan may run into serious trouble if it tries to repeat the stunt it has already attempted to pull off once through a military court trial. Without directing Pakistan to explicitly do so, the ICJ makes it incumbent on Pakistan to conduct a retrial where all the considerations laid down by the ICJ for a fair trial are adhered to, if needed even through legislation. This makes it an unequivocal victory for India.
“The obligation to provide effective review and reconsideration is 'an obligation of result' which 'must be performed unconditionally'….. Consequently, Pakistan shall take all measures to provide for effective review and reconsideration, including, if necessary, by enacting appropriate legislation”, notes the verdict.
The Modi government deserves kudos for pulling this off.
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