Kulbhushan Jadhav’s Death Sentence: Injustice Will Cost Pakistan – Analysis

Pakistan suddenly announced on April 10 the death sentence for Commander Kulbhushan Jadhav (Retd.) without informing the Indian authorities. It was a step aimed at antagonizing India and vitiating bilateral relations. The Pakistani military,  and not the political establishment, took this decision without informing even the Pakistani Government, who was as astounded as the Indian Government.

Backdrop

In March 2016, the Pakistan military claimed it arresting the alleged Indian Spy, Kulbhushan Jadhav, in Balochistan’s Sarvan area during a counter intelligence operation. According to Inter Services Public Relations (ISPR), his trial was conducted through a Field General Court Martial (FGCM) under the Pakistan Army Act (PAA) on charges extending from terrorism, subversion in Baluchistan, blowing up trains, pipelines etc. The charges make even Sylvester Stallones’ Rambo look pale in comparison. After a sham trial he was awarded the death sentence.

Given the state of bilateral relations and the internal developments in Pakistan this whole issue raises many questions – starting with the arrest of Kulbhushan Jadhav, and the way the Army hijacked the legal process and prosecuted him in the military court, an institution which itself is facing legal scrutiny over two years extension under Army pressure.

Distorted evidence

On March 24, 2016, ISPR announced that the Army has arrested an Indian spy named Kulbhushan Jadhav from Sarvan area of Baluchistan located near Iran-Pakistan border. Pakistan blamed Indian intelligence agencies for destabilising Baluchistan through its network operating from Iranian soil.

The ISPR claimed that the Army Chief raised this issue with the Iranian President Hassan Rouhani, who happened to be in Islamabad on State visit. However, President Rouhani denied this claim saying that Pakistan never raised this issue and also categorically denied that India is using Iranian territory to destabilize the insurgency-ridden Baloch province.

The spokesperson of the Iranian Embassy in Pakistan slammed ISPR for spreading disinformation by attributing remarks to the Iranian President, labeling it as “undignified and offensive”.

The facts produced by the Pakistani establishment vis-à-vis the arrest of Cdr Jadhav are both distorted and factually inaccurate. For example, Baluchistan Home Minister Sarfaraz Bugti announced that Jadhav was picked from Chaman, which is 873 km away from Sarvan as claimed by the Pakistan Army.

The German Ambassador to Pakistan and indeed the Indian security agencies have long suspected that Jadhav, a former Indian Naval officer working as businessmen in Iran was abducted by the terrorist group Jaish-e-Adal, which operates on Pakistan-Iranian border. It was this group who sold the former Indian Naval officer to the Pakistan security agencies, in a possible quid pro quo.

The Pakistan army came out with the story of arrest of Cdr Jadhav on March 24, 2016 when they claimed that they had arrested him on March 3. This implies that the Pakistan security agencies interrogated Cdr Jadhav for a full 20 days, extracted confessions from him, and created the so-called videos. Despite such a lengthy and no doubt harsh interrogation the Pakistan deep state has failed to produce any collaborative evidence. A fact admitted by the Pakistani Foreign Policy Advisor Sartaj Aziz regarding the lack of evidence in the Senate that strengthens this argument1.

Sources also indicate that the so-called dossier provided to the UN had hardly any corroborative evidence and was based on generalized claims that made on little or no hard evidence.

Illegal Trial

Even the trial has been a sham. There is no mention of the record of when the case was registered against Cdr Jadhav in the Military Court under Pakistan Army Act (PAA) and when the legal procedure started and when the trial was conducted.

The death sentence awarded by FGCM to Cdr Jadhav was under section 59 of PAA and section 3 of Official Secret Act of 1923. The legal argument of prosecution is supported by Pakistan Army Ordinance in 2015, which gives authority to prosecute Pakistani civilians who are linked with religious and sectarian terrorism under PAA. Cdr Jadhav is not a Pakistani citizen as he a carries valid Indian passport, nor does Pakistan have any corroborative evidence that he is a serving Indian Navy officer. He, as confirmed by the Indian government is a retired service officer and does not fall under the jurisdiction of any military court. Hence his trial by Military Court is both travesty of justice and patently illegal.

The Military Court has rested its judgment on the specious evidence of Cdr Jadhav’s involvement in terrorist activities and that too is based on his own confession, which as mentioned earlier was elicited during 20 days of custodial interrogation.

An interesting facet highlighted by the Pakistani media regarding the state of Military Court trials is that out of the 144 people convicted by the military court 135 had confessed to their crimes. The confession rate is more than 94.5 percent; it is obvious that Pakistan is using harsh interrogation methods against these prisoners and running kangaroo courts under the name of expediency in dealing with terrorist crimes.

The legality of the existence of courts is also questionable. When the term of Military courts expired in January 2017 and they were dysfunctional till the end of March 2017, there was a huge hue and cry within Pakistan, their term was extended for another two year ones under intense military pressure. The International Commission of Jurist (ICJ) has strongly criticized the Pakistan justice system in its paper published in 2016, which reads, “the newly constituted system of “military justice” has placed Pakistan in clear violation of its legal obligations and political commitments to respect the right to life, the right to a fair trial, and the independence and impartiality of the judiciary.”

Timing

The death sentence for Jadhav appears to be an attempt by the Pakistani Army to stoke tensions with India under the mistaken belief of its rising strategic relevance on account of the growing partnership with China also as the main arbiter of the Afghanistan peace process under new quad of Russia-China-Pakistan-Afghanistan.

It could also be an attempt by the Pakistani Chief of Army Staff (COAS) Gen Bajwa to showcase his anti-India credentials; particularly as he was generally seen as a moderate in comparison to his predecessors. His attempted reassertion through the Jadhav case also underlines sudden deterioration in civil military relations highlighted by the fact of the PM being kept in the dark.

Possible Rationale

The speedy trial and confirmation of the death sentence is rumored to be linked to the disappearance of Lt Col Mohammed Habib Zahir, from Lumbini in Nepal who was reportedly involved in Jadhav’s kidnapping. It appears that the Pakistani establishment got the wind of the fact that he is purportedly in Indian custody and that India could splash evidence that would prove arrest and detention of Jadhav as a concocted story. Thus the whole exercise is an act of pre-emption, and putting the ball in India’s court.

Second, and equally important, is to curry favor with their Chinese benefactors who have off late been jittery about the security of their personnel (close to 20,000-30,000) on various CPEC related projects. The Pakistani Army thus sees the sentencing of Jadhav as a good and reassuring message of the Army’s determination, to continue the work on CPEC.

Repercussions for Pakistan

The Indian government has taken the issue very seriously; it regards the incident as a deliberate act of provocation. It is willing to escalate to any level without compromise. In the first step all contacts with Pakistan are being cut off even as it hardens its stand on the Pakistan sponsored terrorism in J&K.

In the coming summer India could well respond proactively to any Pakistani attempts at intervention. India is likely to tell the US that limits of tolerance have reached, and unless Pakistani military is not reined there is all likelihood of escalation and deterioration in bilateral relations.

A similar message will also go to China and Russia.

There is a possibility that if enough pressure is not built on Pakistan, India could walk out of the Indus Water Treaty and stop water supply. That it would lead to escalation is known, but the responsibility will that be of Pakistan. There are a number of other measures India can take, the sad part is having lost all wars fought with India, the Pakistani military lives in a cuckoo land. It is imperative that in the evolving scenarios, the Pakistani political establishment asserts itself and prevents that greed vitiates the atmosphere, and which could lead to instability in the sub-continent.

About the author:
*Shreyas Deshmukh is a Research Associate with the National Security Program at Delhi Policy Group, a think tank in New Delhi. Prior to joining DPG, he worked with MitKat Advisory Services as a geopolitical risk analyst. He has also worked as Research Assistant at the Centre for Land Warfare Studies (CLAWS), New Delhi and as South and Central Asia Fellow at PoliTact, Washington D.C.

Notes:
1. Later in March, 2017 Sartaz Aziz backtracked from his earlier statement by saying “it has never been said that there was any lack of evidence against Jadhav”, https://www.dawn.com/news/1318160, Accessed on 17 April 2017.