Kulbhushan Jadhav Death Sentence: True To Form, Pakistan Flays International Law And Protocol

An Indian, Kulbhushan Jadhav, has been awarded the death sentence through the Field General Court Martial (FGCM) under the Pakistan Army Act (PAA) for espionage and sabotage activities against Pakistan. He was ‘tried’ under Section 59 of PAA, 1952, and Section 3 of the Official Secrets Act, 1923. Jadhav reportedly confessed before the court that he was tasked by the Research and Analysis Wing (RAW) to plan, coordinate and organise espionage and sabotage activities with the aim to destabilise and wage war against Pakistan by impeding the efforts of law-enforcement agencies towards restoring peace in Balochistan and Karachi.

India has denounced Pakistan's proceedings against the former Indian Navy personnel as "farcical" and said that if the sentence were carried out, the act would be considered a "premeditated murder". Sources in the Government of India have said Jadhav was a businessman who often carried cargo to and from Iranian ports bordering Pakistan and had nothing to do with the country’s foreign intelligence agency, RAW.

The ‘trial’ of a so-called spy and the lack of clarity on the issue under international law render the entire development as stage-managed. There are three basic legal issues involving the ‘trial’ which severely compromise the right of the accused to present his defence.

First, it remains disputed whether Jadhav is an Indian spy, notwithstanding his ‘confession’ under duress. In any case, spies are not recruited and never kept on government payrolls. There is never a record of their existence in government files as they are ‘nom de plume sources’ and, hence, do not receive the protection of the state they are serving.

Existentially, these spies are positioned in such a way that the state can disown them with impunity. This is the darker side of the world of spies and espionage. However, as regards to Jadhav, the High Commission of India in Islamabad had sought consular access to him 13 times between 25 March 2016 and 31 March 2017. This was not permitted by the Pakistani authorities. As such, the Government of India could not help Jadhav, something other countries would have done under different circumstances – the case of the Italian marines, for example. Jadhav could not hire a lawyer, though it is claimed that the Military Court provided him with a defence counsel.

Second, the United Nations (UN) and international law do not have a settled legal position on the identification and treatment of spies by member states. The UN has noted that acts of espionage are illegal in a number of international treaties, including the 1946 Convention on the Privileges and Immunities of United Nations and the 1947 agreement between the UN and the United States of America. The Vienna Convention on Diplomatic Relations, 1961, ratified by 190 states, discourages any espionage activity by the diplomatic core posted in other countries. Article 24 of the Hague Convention, 1907, partly addresses the issue of espionage occurring during war time. It acknowledges the use of “ruses of war” and “methods necessary to obtain information”. Articles 29-31 of the Convention address the identification and treatment of spies during war time but do not offer protection.

The spies are also not specifically covered under the Geneva Convention, 1949, on Prisoners of War (POW) either. Article IV of the Convention protects captured military personnel, some guerrilla fighters and certain civilians who take up arms against belligerent armies. Article V addresses the treatment of persons detained as spies and prohibits the treatment of espionage in the time of war as a capital offence. However, the concept of POW devolves around the periodicity of a particular armed conflict between nations. Only those people can be classified as POWs who have been taken captive during or just before or after a war. This does not apply to Jadhav as he does not fit into any of these categories. He was kidnapped from Iran by Pakistani authorities. Under these circumstances, he does not seem to have any protection under international law as he is neither a POW nor a criminal subject to the provisions of extradition.

Though technically, he does not qualify to be called a POW, he remains a foreign national facing trial. A country’s treatment of a foreign national in a criminal trial reflects its moral standards and the values it accords to human rights. This is a concept which is seldom upheld by belligerent nations, and it has only worsened with time. The mass execution of foreigners by Islamic states is a case in point. We can’t expect Pakistan to be any better.

Third, the existence of military courts in Pakistan is a sham. Recently, these courts were given an extension of two years after their previous term had ended on 7 January this year. The decision to revive them is seen as a damning indictment of the Pakistani judiciary. They are indicative of the collective failure of civilian courts to impart justice. Military courts operate on the notion of ‘presumption of guilt’ rather than on ‘presumption of innocence’, which is the case with any other court that believes in the rule of law and natural justice. Moreover, the PAA is applicable only to Pakistani Army personnel and not anyone else. Military courts were meant to handle the disciplinary cases within the army; they do not have the tools to impart justice in a case involving capital punishment and associated jurisprudence thereof.

The fallout from the execution of Jadhav, if carried out, will be huge. There is no instance of anyone ever being awarded the death sentence for espionage, even if for a moment it is believed to be true. Though an appeal to the Supreme Court and later the presidential pardon are available as options in the case, tempers have started to flare up. India has also stopped the release of about a dozen Pakistani prisoners who were set for release. The ongoing tension and war of attrition between these countries are likely to hit a new low. The Supreme Court of Pakistan will do well to review the case from a civilian court’s perspective after extending the right of defence to Jadhav and restore the faith of the international community in Pakistani judiciary.