Arrest of Hafiz Saeed and the ICJ verdict in Kulbhushan Jadhav Case: Pakistan suffers double blow
   23-Jul-2019
The arrest of internationally designated terrorist Hafiz Saeed by Counter-Terrorism Department of Pakistan and the pronouncing of Pakistan as a violator of Vienna Convention in Kulbhushan Jadhav case by the International Court of Justice is a double blow to the internally dwindling and internationally isolated Pakistan
‘Sardar’ Sanjay Matkar
 
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.
 
 
 Renowned sand artist Sudarsan Patnaik creates a sand sculpture with message ‘justice for Kulbhushan Jadhav’ at Puri beach in Odisha
 
 
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?
 
 
“We once again call upon Pakistan to release and repatriate Kulbhushan Jadhav forthwith. Pakistan was found to have deprived India of the right to communicate with Jadhav, have access to him, visit him in detention and arrange his legal representation. The govt will vigorously continue its efforts to ensure his safety and wellbeing, as well as his early return to India” — S Jaishankar, External Affairs Minister General Aseem Bajwa went on to claim that Jadhav was on a mission to sabotage the China- Pakistan Economic Corridor (CPEC), target Gwadar and Karachi ports as targets and “create disharmony in Balochistan”, against the Government of Pakistan. In other words, according to Bajwa’s fancy; Jadhav as a spy was single-handedly going to destroy Pakistan.
“The verdict of the International Court of Justice in the Kulbhushan Jadhav case is a complete vindication of India's stand and it is incumbent on Pakistan to implement the ruling” — Raveesh Kumar Spokesperson, MEASarfaraz Bugti, on the other hand, kept his accusations against Jadhav to a minimum; claiming that Jadhav was working for RAW and was in contact with Baloch separatists and terrorists fuelling sectarian violence in Balochistan province and Pakistan.

 
 
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.
 

 
 Harish Salve
Re 1 vs Rs 20 crore Eminent advocate Harish Salve, India's lead counsel on the Kulbhushan Jadhav case, reportedly took a nominal Re 1 to represent India at the Internationl Court of Justice in The Haque, while a broke Pakistani Government splurged over Rs 20 crore on their UK-based barrister Khawar Qureshi. The whole affair was overwhelmingly voted 15-1 in favour of Bharat, while a lone Pakistani voted against the verdict. The sole judge that voted against the verdict was ad hoc judge Tassaduq Hussain Jillani of Pakistan.
 

 
 Khawar Qureshi
 
Pakistan has not been able to explain exactly which Haji Baloch has been the local connection of Jadhav. Is it Haji Baloch, the Al-Qaeda mastermind, or Haji Baloch the mafia gangster?
 
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.
JADHAV CASE (INDIA v. PAKISTAN)
“The Court has already found that Pakistan acted in breach of its obligations under Article 36 of the Vienna Convention,
(i)by not informing Mr. Jadhav of his rights under Article 36, paragraph 1 (b);
(ii)by not informing India, without delay, of the arrest and detention of Mr. Jadhav; and (iii)by denying access to Mr. Jadhav by consular officers of India, contrary to their right, inter alia, to arrange for his legal representation”
Remedies
  • Pakistan under obligation to cease internationally wrongful acts of a continuing character — Mr. Jadhav to be informed without further delay of his rights — Indian consular officers to be given access to him and be allowed to arrange for his legal representation. 
  • Appropriate remedy is effective review and reconsideration of conviction and sentence of Mr. Jadhav — Full weight to be given to the effect of violation of rights set forth in Article 36 — Choice of means left to Pakistan — Pakistan to take all measures to provide for effective review and reconsideration, including, if necessary, by enacting appropriate legislation — Continued stay of execution constitutes condition for effective review and reconsideration of conviction and sentence of Mr. Jadhav.
 
 
In the present case, it is clearly seen that the rights guaranteed in the ICCPR are clearly violated. The self-incriminating confession violates his Right under Article 14 of the convention. Further, there is no conclusive proof on the fairness of the trial in the martial court nor is there any evidence to prove that the accused Jadhav was given an opportunity to defend himself.
 
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.