Arrest of Hafiz Saeed and the ICJ verdict in Kulbhushan Jadhav Case: Pakistan suffers double blow

Under pressure from its military leadership, the government of Prime Minister Nawaz Sharif ceded significant constitutional and decision-making authority to the armed forces in 2015, particularly in the areas of national security, foreign policy and human rights. Thereby, the Pakistani Parliament passed a constitutional amendment allowing secret military courts to try terrorism suspects.

The military assumed control of the implementation of a national plan to address terrorism, largely without civilian oversight. It was also formally given membership in the apex committees, provincial committees formed to coordinate local counterterrorism efforts and security. One of the very first victims of this policy is Indian national Kulbhushan Jadhav. He is an Indian Navy Officer who retired from service in 2002 after being passed over for promotion. As a civilian, Jadhav started a trading business where he imported pistachios and bitumen from Iran and exported tractor and machinery parts. Around 2013 he formed a free zone company (FZC) in the Chabahar Port of Iran.

On March 3, 2016, Jadhav was kidnapped from Iran at the behest of the Pakistani ISI by the Sunni-Salafist mafia group Jaish Ul-Adil that is based out of Balochistan. That the kidnap operation was sponsored by Pakistani Inter-Services Intelligence is without a doubt. Inconsistencies in the fabricated stories put forth by Pakistan can be ascertained from the fact that while Sarfaraz Bugti (Minister of Balochistan) has made public statements that Jadhav was captured in Chaman area of Afghanistan border; Pakistani General Aseem Saleem Bajwa has stated that he was picked up from Saravan. These two cities are separated by 885 kilometres. So comes up the crucial query. Who is telling lies?

That Jadhav had been kidnapped from Iran was confirmed by the German diplomat Dr Gunter Mulack, who based his statement on information that was supposedly received through credible sources in the Western intelligence community.

Ambassador Mulack has a distinguished career as a diplomat of Germany and his last appointment, prior to retirement was as Ambassador of Germany to Pakistan (2005-08). Post-retirement he is a Director in the German Orient Institute in Berlin. Therefore, it can be safely assumed that his personal credibility is sky-high as compared to that of Sarfaraz Bugti and Aseem Bajwa, combined.

The Pakistanis further went on to elaborately fabricate the story in an attempt to connect Jadhav to one Haji Baloch, leader of a separatist movement in Baluchistan. This Haji Baloch is presumably the person known as ‘Haji Sahib’, who had been accused by Pakistan since 2015 of being the financer of Tehreek-e-Taliban Pakistan (TTP) as well as being nominated as the chief of Al-Qaeda in Pakistan.

To add spice to this earlier fabrication, the Pakistani Army declared on April 12, 2017 that they had taken into custody Haji Baloch aka Uzair Baloch, who they say, had been in contact with the alleged Indian spy Kulbhushan Jadhav. This Uzair Baloch is a gangster from Lyari (a constituent town of the city of Karachi), and is reputed to have assets worth billions; spread across Dubai (UAE), Muscat and Iran.

Since his arrest on March 3, 2016, Pakistan has been consistent in refusing consular access to Jadhav by the Indian officials. This adamant attitude adds to the suspicion that if Jadhav is allowed contact and conversation with Indian Government officials, the entire hare-brained plot of the ISI will unravel on a global scale.

On April 10, 2017, Kulbhushan Jadhav was sentenced to death by a Pakistani Field General Court Marshal (FGCM) which in itself has no credibility since the Pakistani Military is known to frequently flout all rules of ‘due legal process’ including ignoring its own country’s laws, rules and regulations; despite local and international condemnation. This illegally constituted FGCM is in direct violation of Political Rights (ICCPR), to which Pakistan is a signatory. Provisions of the Convention emphasise 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.

Furthermore; as per provisions of the Agreement on Consular Access between India and Pakistan signed on May 21, 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 Jadhav. 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 recognised the fundamental significance of ‘pacta sunt servanda’ as a principle or rule of maintaining international relations. International Convention on Civil and Pakistan has denied India consular access on request 16 times, which clearly proves the violation of the agreement. Pakistan’s breach of international law and Jadhav’s death sentence may be effectively challenged by recourse to the 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.

Since the names of the officers who comprised this FGCM, along with the name of the officer who they claim defended Jadhav in this farcical yet deadly drama have been kept secret by the Pakistan Army; the Government of India will have to take legal action on every international front, against the Pakistan Army Officers for aiding and abetting the pre-meditated murder of an Indian national.

If India does not take extremely stringent and strong action against Pakistan, which has killed more than 10,000 of our security personnel from 1994 to 2017, the murder of Jadhav will be just another insult that Indians will be made to swallow.