New Delhi: After Pakistan announced that Kulbhushan Jadhav, the Indian national accused of espionage by Pakistan, has been sentenced to death, India warned that that if the order was carried out, it would be perceived as “premeditated murder”.
An hour after the head of Pakistan military’s public relations department made the announcement, Indian foreign secretary S. Jaishankar summoned Pakistani high commissioner Abdul Basit and handed over a demarche.
In his announcement, Major General Asif Ghafoor, director general, Inter Services Public relations, provided no details of when the verdict of the Field General Court Martial (FGCM) was handed down, or indeed when his trial was held.
“The proceedings that have led to the sentence against Shri Jadhav are farcical in the absence of any credible evidence against him. It is significant that our High Commission was not even informed that Shri Jadhav was being brought to trial,” said the Indian demarche.
It noted that “Senior Pakistani figures” have also “cast doubt about the adequacy of evidence”. India was referencing reports that Pakistan prime minister’s advisor on foreign affairs Sartaj Aziz told a Pakistan senate committee in December 2016 that “insufficient evidence” was delaying the finalisation of dossier on Jadhav to be presented before the international community. The Pakistan foreign office had latter claimed that Aziz had been misquoted in the media.
Using strong words, India cautioned, “If this sentence against an Indian citizen, awarded without observing basic norms of law and justice, is carried out, the Government and people of India will regard it as a case of premeditated murder”.
— Maj Gen Asif Ghafoor (@OfficialDGISPR) April 10, 2017
The ISPR press release, dated April 10, 2017, says Jadhav was arrested “through a counter intelligence operation from Mashkel, Balochistan for his involvement in espionage and sabotage activities against Pakistan.” The release also said he was tried under section 59 of the Pakistan Army Act and Section3 of the Official Secrets Act and “was provided with [a] defending officer as per legal provisions.
As The Wire noted in this analysis, Pakistan’s claims at the time of the arrest and subsequently did not measure up to scrutiny.
India has repeatedly sought consular access to Jadhav – whom the Pakistani side claimed was travelling on an Indian passport issued in the name of Hussein Mubarak Patel – but Islamabad refused to accede to this demand.
The Indian demarche also noted that New Delhi had made 13 formal requests for consular access to Jadhav between March 25, 2016 and March 31 this year. There had been two requests using notes verbale in March 2016, then one each in May, June and July. Then there was a long gap, with the next note verbale sent to Pakistan in December 2016.
A month later, India forwarded the same request again. On February 3, 2017, both the political and consular wings of the Indian high commission in Islamabad sent separate requests to the Pakistan Ministry of Foreign Affairs for access to Jadhav. Exactly a month later, on March 3, the MEA issued a demarche, whose reply was given by Pakistan on March 21. The last two requests for consular access were made on March 21 and April 31.
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.
While Indian political figures largely kept away from public comments, Pakistani establishment had no such qualms. Pakistan defence minister Khwaja Asif said that Pakistan would certainly reply to India’s protest, pointing out that Jadhav’s ‘confession’ was a ‘public document’. “Yadav came from the approval of the Indian government…there is no doubt that India is fuelling terrorism in Pakistan,” Asif said.
Meanwhile in Delhi, Pakistan high commissioner Abdul Basit told Indian media he was also defiant after his meeting with the Indian foreign secretary. “You can’t sponsor terrorism and then summon an ambassador to protest over the sentence of terrorists. Nothing matters more than national security,” he said.
On Pakistani news channel, Dunya News, defence analyst Talat Masood pointed out that there had been recent media reports of a former Pakistani soldier missing from the Indo-Nepal border. He speculated that the disappearance may have been conducted by Indian security forces who wanted a leverage to negotiate Jadhav’s return.
On April 8, the Pakistani foreign office spokesperson Nafees Zakaria confirmed that retired Lieutenant Colonel Muhammad Habib Zahir has disappeared after he went to Nepal alleged for a job. “Foreign Office is in contact with Pakistan Embassy in Kathmandu and also have established contacts with Nepalese authorities,” said Zakaria.
Veteran Pakistani journalist Ayaz Amir told a Pakistani news channel that even if the sentence was a “bargaining chip”, there will not be any immediate steps taken to implement it. He suggested that there would be a “long-term” dance between the two South Asian neighbours for the release of Jadhav.
The award of the death sentence to Jadhav drew praise for many on Pakistan TV channels, where the announcement was given wall-to-wall coverage. However, there was scepticism among some commentators whether the sentence would be carried out, pointing out that it may only be the start of intense negotiations.
There was expectations among Pakistani analysts that India would react with belligerence, with the Line of Control expected to heat up again.
Among opposition parties, Pakistan Tehreek-e-Insaaf (PTI) supported the death sentence, unconditionally. “The whole country is supporting this,” said PTI’s Asad Umar to Geo News.
People’s Party of Pakistan chairman Bilawal Bhutto, however, had a different response. Referring to the hanging of his grandfather, Zulfiqar Ali Bhutto by dictator Zia-ul-Haq, he said. “I don’t have faith in death penalty”. “I am opposed to the death penalty on principle,” added Bhutto.
Amnesty International’s South Asia chapter condemned Jadhav’s death sentence, describing the Pakistani military court system as “inherently abusive”.
“The death sentence given to Kulbushan Jadhav shows yet again how Pakistan’s military court system rides roughshod over international standards. 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,” said Amnesty International’s South Asia director Biraj Patnaik.
He added that Amnesty opposes the death penalty “at all times and in all circumstances, regardless of who is accused, the crime, guilt or innocence, or the method of execution”.
The Wire will add more details as this story develops.