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The Trial of Kulbhushan Jadhav: A Miscarriage of Justice & Law

According to the Pakistani government, on 3 March 2016,  Mr. KulbhusanJadhav was arrested inside Balochistan during a counter-intelligence raid conducted by Pakistani security forces. He was arrested in Mashkel near the border region of Chaman, having made illegal entry into Pakistan via Iran. Pakistani security forces reported that Yadav was a serving officer in the Indian Navy and asserted that he was commissioned to the Research and Analysis Wing, India's external intelligence agency. They accused him of being a spy and being involved in subversive activities in Balochistan and Karachi. Jadhav was later shifted to Islamabad for interrogation. Yadav served with their navy but at the same time denied that he was an agent for an intelligence agency. Indian Ministry of External Affairs communicated that Jadhav took premature retirement from the navy and the government had no link since his retirement from the Indian Navy. India expounded that Pakistan had fabricated the documents without ascertaining discrepancies.

In ordinary parlance, a person who commits espionage is, ipso facto, a spy. However, in international law, or, more specifically, the laws of war and military law, a spy is a term of art that refers to a person who obtains information in a certain manner. Spy is used in its nominative sense, not in its verbal sense. In US federal law, espionage (United States Code, Title 18, Sections 792-799, page 165) is an activity that is broader in scope than those activities which would ascribe to an individual doing these activities the status of a spy. While a spy would almost always be in violation of espionage laws, the mere violation of espionage laws would not qualify one for the status of spy under international law.

Article 30 of the 1907 Hague Regulations provides: “A spy taken in the act shall not be punished without previous trial.” Also, Article 5 of the 1949 Geneva Convention IV provides that “Where in occupied territory an individual protected person is detained as a spy … such … [person] shall nevertheless be treated with humanity, and in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention." 
The key word in the article is the 'right to fair and regular trial'.

Article 46(1) of the 1977 Additional Protocol I to the Geneva Convention also states that;

Notwithstanding any other provision of the Conventions or of this Protocol, any member of the armed forces of a Party to the conflict who falls into the power of an adverse Party while engaging in espionage shall not have the right to the status of prisoner of war and may be treated as a spy"

Article 45(3) of the 1977 Additional Protocol I also provides that ;"Any person who has taken part in hostilities, who is not entitled to prisoner-of-war status and who does not benefit from more favourable treatment in accordance with the Fourth Convention shall have the right at all times to the protection of Article 75 of this Protocol."

Article 75 of the Protocol lays down the "Fundamental Guarantees" to any persons who are essentially captured by a party to the conflict. 

At this juncture, it is extremely important to note that strictly legally speaking, India and Pakistan are current not in a state of an international armed conflict.  International law does not explicitly address peacetime espionage. But logically, the rights guaranteed to a captured spy during peacetime, as per international law, cannot under any conditions be less than those guaranteed to the person during an armed conflict. 

Denial of Consular Access:

Expectedly, India has reacted strongly to this development with external affairs minister Sushma Swaraj taking to the floor of parliament to denounce the “concocted charges” against Jadhav and cautioning Pakistan of “consequences” if his death sentence were to be carried out. India has also issued a demarche to the Pakistani government in protest to the imposition of the death penalty against its citizen without “adequate evidence” and has conveyed that if the sentence carried out it will be a case of “premeditated murder”

The right to consular access, encompassing the right of sending state consuls to visit, converse with and arrange legal representation for nationals of the home-state in custody of the receiving state, is provided for under article 36(1)(c) of the Vienna Convention on Consular Relations, 1963 (VCCR), to which both India and Pakistan are parties. This protective work performed by the consulates-general of one state within the territory of another is necessary to ensure the wellbeing of sending state nationals in a foreign land and is also one of the most fundamental duties a sovereign state owes its citizens. Under the VCCR, the receiving state (Pakistan in this case) is obligated to facilitate this protection work by: "(a) promptly informing the competent consulate when one of their nationals is arrested or detained; (b) inform the detained foreign national of his right to consular access with his home state; and (c) facilitate the protection work performed by the competent consuls in the form of visits, communications and legal arrangements made for the detainee.[Source]

As per the MEA, the Government of India, through its High Commission in Islamabad had repeatedly sought access to Kulbhushan Jadhav as many as 13 times between 25th March 2017 to 31st March 2017 and they had been repeatedly denied in clear violation of International Law by Pakistan.

India, on the other hand, had allowed Pakistani High Commission complete access during the Kasab trial and even allowed Kasab to write to the Pakistani envoy requesting help and assistance despite Ajmal Kasab been caught carrying out the 26/11 terror attacks.

Legality of the Military Trial

Section 59 of the PAA states;

Civil offences; "(1) Subject to the provisions of sub-section (2), any person subject to this Act who at any place in or beyond Pakistan commits any civil offence shall be deemed to be guilty of an offence against this Act and, if charged therewith under this section, shall be liable to be dealt with under this Act."

Section 3 (1) (iii) of the OSA, 1923 states;

"Penalties for Spying: ... (iii) claiming or are known to belong to any terrorist group or organization using the name of religion or a sect; and

(a) raise arms or wage war against Pakistan, or attack the Armed Forces of Pakistan or law enforcement agencies, or attack any civil or military installations in Pakistan; or
(b) abduct any person for ransom, or cause death of any person or injury; or
(c) possess, store, fabricate or transport the explosives, firearms, instruments, articles, suicide jackets; or
(d) use or design vehicles for terrorist acts; or
(e) provide or receive funding from any foreign or local source for the illegal activities under this clause; or
(f) act to over-awe the state or any section of the public or sect or religious minority; or
(g) create terror or insecurity in Pakistan or attempt to commit any of the said acts within or outside Pakistan,
shall be punished under this Act;

Provided further that no person accused of an offence falling under sub-clause (iii) or sub-clause (iv) shall be prosecuted without the prior sanction of the Federal Government."

According to Principle 10 of the United Nations’ Basic Principles on Independence of the Judiciary, “persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. Any method of judicial selection shall safeguard against judicial appointments for improper motives.”

The primary important point to note is that in Pakistan, military court judges are military officers very much a part of the military chain of command. There is no requirement for them to have a law degree or a legal background, which are prerequisites of judicial competence and independence.

The secondary point of note is that as per Section 6 of Ordinance, 1965 (40 of 1965), civilians cannot be court-martialed by the Pakistan Army.  Which means that the bar on appeal from a Court Martial under Section 133 of the PAA does not apply to this case and the accused Yadav does have a right to challenge the order of the Military Tribunal. 

The second and perhaps the most important point, however, relates to the legality and sanctity of a trial by a Pakistan Military Court itself. 

As per the International Court of Justice, the trial of civilians in military courts is incompatible with international standards, including article 14 of the ICCPR, which requires Pakistan to ensure that those accused of any offence – no matter how heinous – are guaranteed a fair trial by an independent, impartial and competent tribunal. Military courts in Pakistan are neither independent nor do the proceedings meet internationally agreed standards of fairness. 
There are no elaborate procedures or fanfare that may lead the accused to military courts.In April 2015, certain Sabir Shah disappeared from Lahore’s central jail. His family and lawyers did not know where he had gone. Five months later, the family was informed via an ISPR press release, that Sabir had been awarded a death sentence by the military courts. Sabir’s lawyer claims he is unaware of the evidence that may have been used to convict his client. Sabir was originally indicted on murder charges. The trial was underway at the civilian courts when he was mysteriously moved to a military internment center. As per a report by Dawn

What is important to note is that until January 6th, 2015, the Military Court under PAA did not have the authority to try civilians anymore. Following the attack by the Pakistani Taliban on the Army Public School in Peshawar that killed 148 people, nearly all children, the Pakistani government introduced a bill to amend the Constitution of Pakistan and the Army Act, 1952 to reinstate and expand the jurisdiction of military courts to try civilians for terrorism-related offenses. The Bill received the assent of the President of Pakistan on 7th January 2015 and was introduced by the Government specifically for 2 years. The 21st Constitutional Amendment Act of 2017, had a sunset clause which would have lapsed on 7th January 2017. On 27th March 2017, the Lower House of Pakistan had decided to re-extend the term of the Military Tribunals for another 2 years, but the same Constitutional Amendment has not been passed by the Upper House till date. 

Though India can take up this matter to the ICJ, by invoking the compulsory jurisdiction of the ICJ under Article 36 (2) (c) of the ICJ Statute. The next best option is an appeal to the Supreme Court of Pakistan. But keeping in mind the recent resolution passed by the Bar Association of Lahore prohibiting any lawyer from representing Yadav and the fact that behind the scenes the Pakistani Army is the one which calls the shots, the Indian Government can only either hope that the Supreme Court does what is right and necessary to uphold justice or the World community comes . 

About the Author:   Sourya Banerjee is the Lead Editor of A38



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