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Arrest of Kulbhushan Jadhav: A high handed act and brazen violation of international conventions by Pakistan

Pakistan’s counter intelligence agency claimed to have arrested Kulbhushan Sudhir Jadhav, a retired naval officer of India, from its restive province of Balochistan on March 3, 2016.   India’s intelligence agencies suspect that a Sunni radical group Jaishul Adil is responsible for the kidnapping of Indian businessman Kulbhushan Yadav from Chabahar, Iran.  He was sentenced to death by a Field General Court Martial (FGCM) in Pakistan on 10 April 2017. India resisted arrest of its official. It said that Pakistan’s intelligence agency ISI arrested him from Iran border at Chabahar. Later a retired Pakistani Army officer, Lieutenant General Amjad Shoaib, who is also a former ISI official, has said that former Indian Naval officer Kulbhushan Jadhav was arrested from Iran and not Pakistan.
Pakistan alleged that he was an Indian national associated India’s intelligence agency, the Research and Analysis Wing (RAW). It alleged that Jadhav was involved in spying, subversion and terrorism in Baluchistan. Pakistan, however, did not allow consular access to Jadhav, which was obligatory according to international conventions. This shows Pakistan had motives behind arresting him to put an unfounded blame on India. Pakistani officials even gave contradictory versions as to where Kulbhushan Jadhv was arrested. The Home Minister of Pakistan’s Balochistan province, Sarfaraz Bugti, first announced that Yadav was picked up from Chaman. But in the Pakistan army’s press conference, the Director General of the Inter Services Public Relations General Asim Bajwa, announced that Yadav was picked up from Saravan. Now, Chaman is the eastern most extremity of Balochistan and is near the Pakistan-Afghanistan border. Whereas, Saravan is south-east of Zahidan and is near the Pakistan-Iran border. Chaman is 873 kilometres from Saravan by road. This is a major inconsistency in the claim made by Pakistan’s agencies. In fact Pakistan arrested Kulbhushan Jadhav with anterior motives.

India requested Pakistani authorities to honour international conventions and also to give Jhadhav opportunity to prove his innocence, rather than a trial which was surely done under pressure and duress to extract confessions from Jhadav, which were not true. India felt that Pakistan was trying to forcibly put an allegation against an Indian officer to malign India. India says that Pakistan has violated the Vienna Convention on Consular Relations by denying Mr Jadhav, 47, access to legal and other assistance from India.

India had been repeatedly requesting consular access to Mr. Jadhav while also demanding a certified copy of the charge sheet as well as the judgment. Pakistan denied India’s request 13 times according to Mr. Gautam Bambawale, Indian High Commissioner in Islamabad. India wanted Pakistan to follow the Vienna Convention in this regard as a signatory. Providing consular access to foreign citizens arrested or detained is a standard practice in international law but Islamabad said it was not obligated to do so since Jadhav was accused of espionage. In fact, there is no carve out for persons arrested for spying in the Vienna Convention on Consular Relations, 1963, the basic document governing consular access in international law. In the wake of this, India cancelled maritime talks with Pakistan that was scheduled for April 17.
Amnesty International, a human rights watch institution said categorically (April 18, 2017), “By sentencing Indian national Kulbushan Jadhav to death, Pakistan’s military court system has once again showed how it “rides roughshod over international standards.”It also questioned the secretive court’s ability to dispense justice. “The death sentence given to Kulbushan Jadhav shows yet agIain how Pakistan’s military court system rides roughshod over international standards.” Biraj Patnaik, South Asia director, Amnesty International, said,  “Stripping defendants of their rights and operating in notorious secrecy, military courts do not dispense justice but travesty it. They are an inherently abusive system that are best left to deal with issues of military discipline, not any other crimes.” He added that Amnesty was against the death penalty at all times and in all circumstances, regardless of who was accused, the crime, guilt or innocence, or the method of execution.
India did not relent and accessed the International Court of Justice to get a fair deal for Kulbhushan Jhadav. Pakistan simply did not have anything substantive to argue in the International Court of Justice (ICJ) in favour of its high handed act. It was on wrong footing and so lost in the ICJ. On 18 May 2017, the ICJ stayed the hanging of Jadhav after India approached it against the death sentence.
The UN court has ordered Pakistan not to execute Mr. Jadhav pending the outcome of a case filed by India. Islamabad said it attended the hearing out of its respect for the court and driven by the conviction that the challenge can be made via appearance and not by abstaining from the process. “Pakistan attended because of its conviction that the only way to resolve all outstanding issues is through peaceful means. We are confident that India would not be able to hide the subversive activities it is trying to carry out through its agents like Commander Jadhav,” stated an official statement by the Attorney General’s office. The AG’s office interpreted the interim order by ICJ as maintaining the status quo in the case. “The court has clearly underscored that the provisional measures are without prejudice to the final determination of the merits and jurisdiction of the case.” It added: “These provisional measures have no bearing whatsoever on the final decision of the court.”Sartaj Aziz, senior adviser to Prime Minister, said the government will constitute a new legal team to fight the case. Responding to the criticism by opposition parties, he said Pakistan could not have abstained from the hearing as any such move would have given advantage to India.
Meanwhile, Imran Khan’s Pakistan Tehreek-e-Insaf slammed Prime Minister Nawaz Sharif for the adverse ICJ ruling. “Pakistan sent a junior lawyer, totally unprepared to defend our case. This spineless government is incapable of standing up to India’s aggression,” PTI leader and member the National Assembly from Islamabad, Asad Umar, tweeted after the ruling. Justice (retired) Tariq Mehmood, former President of Supreme Court Bar Association, said the ICJ’s decision is a provisional relief. He said, “I am not surprised by the ICJ decision as we need to understand that death penalty is not liked internationally, which is reflected in the decision. But the final decision will be made after arguments on the merits and maintainability and I must say our lawyer has made very valid arguments.”
Pakistan continues to keep Jhadhav in confinement and insist about Jhadhav’s involvement in subversive activities without any evidence. Pakistan is not ready to accept the fact that India is a big and pacifist country with a far better international image. Pakistan tries to aggravate a small secessionist group in Jammu and Kashmir by funding them and providing arms and ammunitions, well known to the world. So it wants to create a situation in Jammu and Kashmir which warrants police and army intervention so that it can raise a manufactured allegation against India of human rights violation. And Pakistan is known to be a haven of Islamic fundamentalism and terrorism. Pakistan is well known for giving shelter to terrorists and it often helps many of them to infiltrate in India. Now wrongly confining to Kulbhushan Yadav is part of the same mischievous policy and a conspiracy to prove a wrong point that India is spying against it and sending agents for subversion. World, but for diplomatic reasons, knows and understands well the positions of the two countries. Had India been subversive, Pakistani state, depending mainly on international doles, may have been militarily subjugated. Pakistan knows, it cannot stand India’s strength and stature. So it has adopted a policy of asymmetric war. Provoking a few secessionists in Jammu and Kashmir and arresting Kulbhushan Yadav are part of the same strategy. Pakistan may create irritants, but India is a big and mighty country. Pakistan will ultimately fail in its nefarious designs. The older generation of “hate campaign” are gradually falling in number and many Pakistanis from young generation have started looking on to India as a land of opportunity and freedom. It will be a problem for Pakistan if it does not realize the aspirations of peace and cooperation simmering in the hearts of young Pakistanis.
Pakistan is unable to digest the fact that Jammu and Kashmir is an integral part of India and majority of people of Jammu and Kashmir participate in democratic elections and enjoy special status given to them in the Indian constitution (art. 370), apart from recent spurt in Kashmiri students doing good performance in many Indian competitive examinations and mainland universities. Some of them are proud soldiers and officers in the Indian defense forces. Kashmiri leaders who believe in the Indian constitution are much respected in India.
Meanwhilke, a petition has been filed in Pakistan’s Supreme Court seeking immediate execution of Indian prisoner on death row Kulbhushan Jadhav if he failed to get his capital punishment overturned. Muzamil Ali, a lawyer by profession, filed the petition May 27, 2017 through Advocate Farooq Naek – a leader of opposition Pakistan People’s Party and former Senate chairman. The petition asked the apex court to order the federal government to ensure an early decision under the domestic laws on any pending appeal by 46-year-old Jadhav. The petitioner requested the Supreme Court to order the immediate execution of the Indian spy if he failed to get his capital punishment overturned.
The retired Indian Navy officer has been in Pakistan’s custody for more than a year. Pakistan had last week arrested Sheikh Nabi Ahmed, an Indian citizen from their capital city Islamabad last week. Ahmed was arrested after he was unable to show any travel or visa documents. Ahmed a resident of Jogeshwari East in Mumbai, was arrested under the Foreigners Act 1946 and has been sent to judicial remand. According to India Today Pakistan Intelligence Agencies took help from Pakistani terrorist group Jaishul Adil in Kidnapping Indian citizen Kulbhushan Jadhav from Iran –Pakistan border. It is an extremist Sunni radical group, which is headed by Salahuddin Farooqui. This Salafist-jihadist group owes its allegiance to the Al Qaeda and is reported to have around 500 fighters. Jaishul Adil has in the past killed Shia pilgrims from Iran and has been accused of targeting Iranian border guards along the country’s border with Pakistan’s Balochistan province. Jaishul Adil has been designated as a terrorist organisation by Iran. There are many gaps in the purported video of confession by Kulbhushan Jadhav which were selectively released by Pakistan in media. According to Indian Today a forensics examination of the video conducted by India’s intelligence agencies shows that the ‘spy video’ has been heavily edited and the audio has been spliced in several places. At different points, Kulbhushan’s facial expressions do not match with what is being said in the voice over. A critical question is if Pakistan has a genuine confession by an Indian agent then why has a heavily edited version of the video been put out and not the original tape. Is an attempt being made to show Yadav as having said things he never did.

India and Pakistan ended their submissions before the International Court of Justice at The Hague in the next on May 15 over the Indian national Kulbhushan Jadhav’s death sentence. India took up the issue of consular rights to its national and accused Pakistan of violating the Vienna convention and conducting a “farcical trial” without a “shred of evidence”. New Delhi also demanded the immediate suspension of Jadhav’s death sentence, expressing fears that Pakistan could execute him even before the ICJ hearing was over. Pakistan argued that the world court has no jurisdiction in this case as it pertains to national security. The ICJ or International Court of Justice at the Hague gave its verdict today, ruling in favour of India in the Kulbhushan Jadhav case. The top UN court told Pakistan to take all possible measures to ensure that Mr Jadhav is not executed before the international court gives its final verdict. It also told Pakistan to give consular access to India. This is a big diplomatic win for India. It is to be seen how ICJ delivers its final verdict.

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