Death Sentence to Kulbhushan Jhadav: what are the option before India?

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TOPIC: General Studies 2

• India and its neighbourhood- relations.
• Bilateral, regional and global groupings and agreements involving India and/or affecting India’s interests
• Effect of policies and politics of developed and developing countries on India’s interests

Background

Former Indian naval officer Kulbhushan Jadhav has been awarded death sentence by Pakistan Military court. Pakistan has claimed that its security forces arrested Jadhav from the restive Balochistan province on March 3, 2016, after he reportedly entered the area from Iran. Pakistan also claims that he was a serving officer in the Indian navy. The Indian government has denied this fact of him being a serving officer but accepted that he was a part of Indian Navy before retirement.

However, Indian government is not satisfied with the trial process which led to awarding of a sentence and aims to find out ways to bring Jadhav to justice.

The death sentence

Pakistan was quite for 10 months after initial announcement of capturing Jadhav. But, the death sentence came as a surprise as it is not in conformity with either Pakistani law or international law. Right from the beginning the attempt has been to use this matter and project Jadhav the way they have.

For past few months, the relationship between two countries have been troublesome. India had successfully isolated Pakistan on issue of terrorism. To create a moral equivalence between India and Pakistan, Pakistan has constantly tried to prove that India is interfering in Baluchistan which hardly has any takers. However, Pakistan has brought forward this matter to bring on the table so that they can have a better place during negotiation. This is not the first time Pakistan has done similar things in past and used people like jadhav to use them as leverage to discuss certain agendas.

Also, a report was carried by dawn few days before awarding the death sentence that a Pakistani retired officer being missing and captured in Nepal by India. This allegation has been repeated and can be a speculation too. But India has not yet responded to those allegations. In such issues, it is not about truth but what is the perception in Pakistan which drives issues.

The process

By international laws and also Pakistani laws, even for the sake of argument if it is true that Jadhav is a spy, there is no death sentence for the same. Pakistan’s legal system, military judicial system, policies will come under international scrutiny post India takes action for the same.

India has asked for consular access to jadhav for 13 times, but it was not granted. This exposes Pakistan to a robust challenge by India on international law basis.

Both countries are signatories to optional protocol of the Vienna convention on Consular Relations which means that in an event of dispute over subject matter of this convention, both countries have accepted in advance the compulsory jurisdiction of ICJ. ICJ has ruled earlier in some countries, notably when the USA did not give timely consular access to Germany and Mexico where their nationals were arrested and tried in USA. The ICJ was in favour of countries whose prisoners were denied access. Thus India can appeal to the ICJ to make Pakistan abide by the international law in case like this.

The relationship standing

This is a move by Pakistan army which controls everything when it comes to terms with India. They are not concerned about Pakistani judiciary or civil government.

If Indian navy is helping Pakistani marines, it is the obligation of the sea. The Indian defence forces know how to carry out their obligations. The same cannot be said for Pakistan for the way they have handled kulbbhushan jadhav’s case. They abducted him from a neighbouring country and hence there is no question of bonhomie between two nations when a life of person is hinged on unfair army trial.

India has said that it had been constantly in contact with Pakistan on this matter and it has taken a constructive approach to the Pakistani conditions and asked Pakistan to let Indian envoys meet Jadhav to examine the allegation.

India’s options

ICJ- India has never gone to international court. Pakistan took India in 1999 after their naval aircraft was shot down in Indian Territory. Then India had said that international court has no jurisdiction in India-Pakistan issues. If India waves off that condition, India will be opening for all kinds of trouble in future, especially with Pakistan which normally is in favour of third party involvement.

Firmness and reciprocity- The standard approach should be followed in such matter- firmness and reciprocity. The External Affairs minister said that Pakistan will allow conditional access to jadhav only if India helps to find the evidence. This shows that Pakistan has no substantive and sufficient evidence to provide such death sentence. It has also levied ludicrous allegations against senior Indian officials. This shows how their mind is working.

So India has to be firm in tis approach to deal with Pakistan without third party interference as well as reciprocate in a manner which is understood by Pakistan. this doesn’t mean India should behave as Pakistan does but find a way out to show it its standards.

Appealing- Other ways are providing assistance to jadhav’s family in appealing in Pakistani court, Union of India by itself can proceed against Pakistan legally through Pakistani courts. The question is to filing appeal against the sentencing of Jadhav and capturing diplomatic moral high ground.

India needs to assure jadhav’s release without compromising India’s interest.

Conclusion

Appealing and diplomatic approach is fine. But the matter is not with Pakistan civilian government but with military. India has to understand that Pakistan is a dysfunctional state when it comes to issues related to India, Kashmir and Afghanistan. They want to pressurise India on table where they have edge over any negotiations by bringing India under pressure. At the international fora, it is trying to get support from China which is has problems with India over Dalai Lama visit. Somehow, Pakistan is trying to patch with Russia and Iran. Thus, by approaching all this countries, it is trying to pressurise USA and India which has condemned Pakistan for supporting terrorism, forced to arrest Hafeez Sayeed etc.

The focus now for India is to bring Jadhav back irrespective of repercussions on ties with Pakistan. It has been called premeditated murder if the death sentence is executed. Undoubtedly, the Indian government is very outraged by such action from Pakistan but they have to calmly and objectively look at the options available to bring Jadhav back.

Key words:

Article 36 of Vienna convention:

Article 36 of the Vienna Convention on Consular Relations (1963), which the United States ratified in 1969, provides that when a national of a foreign country is arrested or detained on criminal or immigration charges, the detainee must be advised of the right to have the detainee’s consulate notified and that the detainee has the right to regular consultation with consular officials during detention and any trial.

Connecting the dots:

• There is constant deteriorating of ties between India and Pakistan in last one year. Examine the issues and suggest how India can possibly deal with Pakistan considering the fact that it is taking advantage of India’s allies on its side.