Kulbhushan Jadhav’s Case: India vs Pakistan (2016)

Introduction:

Kulbhushan Jadhav is an Indian national who was captured by Pakistani region of Baluchistan and was alleged for terrorism and spying activities for the Research Analysis Wing, Indian Intelligence Agency. He was born in Sangli, Maharashtra, India in 1970 and served the Nation as Naval-Officer in Indian Navy. He was ranked as Commander.

According to Indian Foreign Ministry, in April 2017 they stated that Commander Kulbhushan Jadhav has been kidnapped from Iran, last year in presence of Pakistan. On 03^rd of March 2016, Pakistan Army stated that the Commander has been arrested in counter-intelligence operation in Baluchistan because he was involved in conducting incendiary activities in Pakistan. India was informed about the arrest of the commander on 25th of March 2016 after an unaccountable delay of 22 days. The Government of India claimed that Commander Kulbhushan Jadhav is a former naval officer but refused to have any connection with him and stated that he took premature retirement and was captured from Iran. It was also claimed by the government that the commander was carrying on a business in Iran before retirement, and was seized. Also, he was tried on bogus and contrived charges of terrorism and reconnaissance. There was a continuous desire from the Indian government for consular access to commander so that the Indian government can attend him and provide him with legal depiction. But Pakistan denied this access along with creating conditional access for India in investigating against the mater of Commander Jadhav.

Jadhav was confined to death by Field General Court Martial in Pakistan on 10^th April 2017 on grounds of terrorism and undercover operations. On 8^th May 2017, a case was filed by India against Pakistan before the International Court of Justice (ICJ) accusing Pakistan of the nefarious misdemeanour of the VCCR (Vietnam Conventions on Consular Relations). ICJ ordered Pakistan to adjourn the execution, undecided a final judgement by the ICJ. India was given access to provide consular, however frequent requests were blocked. 

Arrest of the Commander

As per Pakistan Government, Commander was arrested from Baluchistan in Mashkel near the border region of Chaman on 3^rd March 2016. When security forces conducted a counter-intelligence raid, there they found commander and arrested him. As per them he was involved in incendiary activities in Baluchistan and Karachi and was taken to Islamabad for interrogation. But as per Indian Government, Commander was abducted by Mullah Omar Irani of Jaish-ul-Adi from Sarbaz City, and later Iran sent Jadhav to Pakistani Army. It was stated by the Pakistan Army that in 2003, Kulbhushan Jadhav came to Chabahar District with a visa stamp on a fake passport and lived with an identity of Hussain Mubarak Patel. Pakistan officials held that his task was to weaken the strength of Pakistan by leading a separatist movement in Baluchistan and Karachi, that was a mission which started in the year 2013. Sarfraz Bugti, Home Minister of Baluchistan aforesaid that he was working for RAW and was connected to separatists and militants of Baluchistan, for conducting violent activities. It was further stated that he was funding the militants and was giving naval combat training to Baluch separatists and that he had met Haji Baloch in Wadh and to conduct violent activities in Karachi and Sindh.

Asim Saleem Bajwa, commander of Pakistan army told to the press that Jadhav transformed himself into Islam and started working at Gadani under scrap dealer. He developed connections to have funds, smuggle people from one place to another so that the activity of terrorism can be conducted. He acquired boat at the Iranian port in Chabahar to target Karachi and Gwadar ports. His intention was to cause destruction at China-Pakistan Economic Corridor through indoctrination, making a target to Gwadar Port and creating dissension among the national political parties of Baluchistan. Jadhav told the interrogators to use an expression “your monkey is with us” to inform the Indian Intelligence and his handlers about his incarceration. He termed the detention of an armed officer or intelligence force officer of his rank as a big accomplishment.

Confession Video of the Commander

It was held by the army and the government officials of Pakistan during a joint conference, that Jadhav has accepted that he was working under Intelligence Agency RAW and recorded this in a video and made it public. In the video commander purported to have said that Indian Intelligence was involved in diminishing Pakistan and that he was in serving as Naval-officer in India and was working on behest of RAW in Pakistan. As per Saleem, Jadhav’s activities were state-sponsored terrorism and there is no clear evidence of India’s interference in Pakistan. In the video, Commander aforesaid that he has been carrying undercover operations against Pakistan from the Iranian port of Chabahar under the guidance of Research and Analysis Wing’s joint secretary Anil Gupta. Jadhav confessed, that he is still a naval-officer of an Indian army and the retirement is due for 2022. He began an intelligence operation in 2002.  By 2003, he started a small business in Chabahar. He also stated that he has been doing certain activities under the guidance that were anti-national or related to terrorism that led to death or killing of citizens of Pakistan.

India has jilted the confession video of Commander. Kiren Rijiju of Union Minister claimed that the confession video was tampered video, spurious confession video having audio which is spliced, made by Pakistan, to defame India.

Sentence by Pakistan

Kulbhushan Jadhav was incarcerated to death by Field General Court Martial (FGCM) of Pakistan on 10th April 2017. Commander Jadhav’s Trial lasted for 03 and a half months and he was penalized for the impeachment for waging war against Pakistan, spying for India, destabilizing the state and promoting terrorism. The punishment was confirmed by army chief Qamar Javed Bajwa and was released by ISPR (Inter-Service Public Relations). Khawja Muhammad Asif who was Pakistan’s defence Minister stated that Jadhav had a right to appeal against his incarcerate on three appellate forums within 40 Days. Also, India was denied access by Pakistan to provide consular to Jadhav.

International Court of Justice (ICJ)

In 08^th May 2017, India reached to International Court of Justice alleging Pakistan for violating India’s Right to have consular access of VCCR (Vienna Convention on Consular Relations 1963) in the detention and trial matter of Indian National Kulbhushan Sudhir Jadhav, who has been convicted by Pakistan Court and is sentenced to death in April 2017. Jadhav was deprived of his rights under article 36 of VCCR and India was denied to provide the commander with any legal representation while he was in detention. Article 36, para 1 of the statute of the courts and Optional protocol to VCCR, Article 1 concerning the Compulsory Settlement of disputes was mentioned by India in its application before the ICJ.

The orders of the ICJ can be divided into three parts:

1. Jurisdiction and Admissibility that Pakistan failed: ap per Pakistan, ICJ has no jurisdiction in the case of commander and that India did not approach the court with clean hands. It is the legal doctrine in this case that implied to the wrongful conduct of India in an investigation and that fails India to get legal remedy.  ICJ rejected both the challenges and proved the jurisdiction of ICJ over the matter by the virtue of Optional Protocol of VCCR and both the countries are signatory to the protocol.
2. India’s staggering win on merits: Article 36 of VCCR provides any country who’s national has been in custody or in prison to have the right to access to consular. It consists of:
3. Informing the authorities of the country about the detention without any delay
4. Ensuring the national freedom to communicate and access to consult
5. Right of the consular to provide him legal representation

As per International Court of Justice, Pakistan violated the rights and obligations as:

1. Pakistan did not inform Mr Kulbhushan of his right to access to consular
2. There was a delay of 22 days in informing the detention of Mr Jadhav that was “undue delay”
3. Denied the request of India for consular access

Pakistan asserted the VCCR applicability by stating; it does not apply to cases of intelligence and terrorisms; bilateral agreement of 2008 made some changes in the application of provisions of VCCR in political and security cases. The application was rejected by ICJ.

• Remedies given to India: The ICJ provided India with “restitutio in integrum” action to restore the rights of the complaining party where there is no violation of rights. As a remedy, the court ordered Pakistan to review the Jadhav’s case. However, the release of Jadhav to India was not ordered and the death sentence given by Pakistan Court was not annulled by ICJ.

Conclusion

Jadhav’s case is a victory to India and provides clarity to the country’s commitment to VCCR. The safety of the commander has been important from the day the matter was seized by media. India may be hesitant to do so, leveraging diplomatic negotiations with the analysis and reconsideration of Mr Jadhav’s Case, may turn out to be an enticing solution to this ongoing saga.