Kulbhushan Jadhav: A Case of Misrepresented Identity

In spring of 2016, a radical group by the name Jaishul Adil abducted an Indian businessman Kulbhushan Jadhav from Pakistan-Iran border. Jaishul Adil is an extremist Sunni radical group, which is headed by Salahuddin Farooqui. The group owes its allegiance to the Al Qaeda and has in the past killed Shia pilgrims from Iran and has been accused of targeting Iranian border guards along the country's border with Pakistan's Balochistan province. Jaishul Adil has been designated as a terrorist organization by Iran.

The shallow charges of espionage put on Mr. Yadav is not just plain wrong but also can’t stand the test of international law.

Whether Mr. Jadhav was a deep cover intelligence operative or not is a subject of debate. A capturing country will likely always make claims about the heinous complicity of a ‘spy’ to provoke unrest and vandalism, backed by ‘confessions’. The key feature is the manner in which Pakistan has chosen to deal with the incident, which is significant:

• First, intelligence gathering is something that all countries and, by extension, their agencies conduct on a regular basis. This is done mainly to achieve strategic depths that involve penetrating other Governments establishments, intelligence etc. These are backed up by fool- proof plan that involves building a cover for the agents. Jadhav’s Indian ‘cover’ is so weak that it wouldn’t even stand a simple scrutiny, let alone of Pakistani counter-intelligence. Incomplete addresses in travel documents, travelling into Pakistan using an Indian passport (in the name of ‘Hussein Mubarak Patel’) and so on are neither the hallmarks of a spy, nor of a half decent cover.
• The very fact that the entire trial is based “only” on a video confession by Mr. Jadhav raises severe issues regarding the legality and fairness of these trials.

Video Confession and what’s wrong with it:

• It’s undisputable that Mr. Jadhav must have confessed under duress. The finality of confession could only be ascertained if consular access is granted to him.
• Mr. Jadhav confesses that he is still a navy officer and will be till 2022. If that’s true then there’s no way that he can go outside India on a business tour without resigning. The possibility of him being sent to gather intelligence also holds no ground since navy has no independent intelligence wing.
• Furthermore, Indian govt. has already clarified that he had taken premature retirement. As such the confession doesn’t holds up.
• Jadhav says he had done “basic assignments within India for RAW” before he joined the agency. But the RAW’s authority is external intelligence and agency does not conduct operation within India, the internal authority lies with Intelligence Bureau (IB).

Legal recourse and way forward:

India can take Pakistan to the International Court of Justice for denying it consular access to a citizen accused of espionage.

Article 36(1) of the Vienna Convention affords the following privileges to the consular officers of states for communicating with their national detained in another state: “(a) consular officers can freely communicate with nationals of the state where the individual has been detained; (b) upon request of the detainee, the detaining state must immediately inform the consular post of the detainee’s state and (c) consular officers can visit the detained individual and arrange for legal representation.”

While Pakistan seems to have adhered to 36(1) (a), it is unclear whether they have followed clause (b) or not. But it’s the flagrant violation of clause (c) that India can exploit to bring Pakistan on to its knees. So far Pakistan has rejected 14 requests to grant consular access to Mr. Jadhav, the latest being that of yesterday’s.

In response to death penalty given to Mr. Jadhav by Pakistan military court, the external affairs ministry has issued a notice to Pakistan stating: "If basic norms of law and justice are not observed, government and people of India will regard it as premeditated murder."

India has also stopped the release of around a dozen Pakistani prisoners who were going to be released by authorities day after tomorrow.

The way forward must be dragging Pakistan to International Court of Justice. It’s time to show them that we won’t bend. It’s time to show that we are more than willing to march till the last mile to free our citizen who has been kidnapped by a terrorist organization on behalf of Pakistan Intelligence agency- ISI.

The author of this opinion article is Mr. Gaurav Gautam at PRProfessionals