Human Factor: A Protocol On Prisoners Needed To Avoid Another Kirpal Singh Episode

The death of Kirpal Singh in Kot Lakhpat jail, Lahore (Pakistan) on 11 April, 2016 while serving the imprisonment on the charges of spying and bomb explosion, broadly brings into the for three sets of discussions.

Firstly, it remains disputed whether Kirpal Singh was an Indian spy or otherwise. It is also not established that he had crossed the border in pursuit of some livelihood or business. However, his relatives are insisting that he was working for Indian State and as such the family is entitled for compensation because of his martyrdom in the line of duty. But in the ‘Intelligence protocol’ spies are not recruited and they are never kept on the Government’s payrolls.

These spies are called ‘sources’, recruited and paid by their ‘handlers’ who in turn are connected to the intelligent establishment of the Governments. There is no record of their existence in the Governments files as they are ‘nom de plume’ (NDP) ‘sources’ and, hence, do not receive the protection of the State they are working for.

Existentially, these spies are positioned in such a way that the State can disown them with impunity. But of late, the families and media would like us to believe that every Indian in Pakistani jail has been an Indian spy, something the Government of the day will never admit even it is true. This is the darker side of the world of spies and espionage, if for a moment we believe that he was an Indian spy.

Secondly, the United Nations and International Law do not have a settled legal position of identification and the treatment of spies by the member States. The UN has highlighted that the acts of espionage are illegal under in a number of International treaties.

These include the 1946 Convention on the Privileges and Immunities of United Nations and 1947 agreement between United Nation and USA. The Vienna Convention on Diplomatic Relation, 1961 ratified by 190 States, discourages any espionage activity by the diplomatic core posted in of other countries. Article 24 of Hague Convention, 1907 partly addresses the issue of espionage occurring during the war time. It acknowledges the use of ‘ruses of war’ and ‘methods necessary to obtain information’.

Article 29-31 of this Convention address the identification and treatment of the spies during war time but do not offer any protection. The spies are also not specifically covered under the Geneva Convention of 1949 on Prisoners of War (POW) either. Article IV of the above Convention protects captured military personnel, some guerrilla fighters and certain civilians who took arms in fight against the belligerent armies.

Article V addresses the treatment of person detained as a spies and prohibits treatment of espionage in war time as capital offence. Most importantly, the whole concept of POW devolves around the periodicity of a particular armed conflict between the nations. Only those can be classified as POWs who have been taken captive during or just before or after the war.

In the case of Kirpal Singh, this does not apply. He allegedly crossed over Wagah Border in 1992 at a time India and Pakistan were not at war or immediately before or after. As such, in International Legal parlance, Kirpal Singh does not qualify to be called a POW. He was tried and convicted under Pakistani Penal and Official Secret Acts and was awarded death penalty which was not commuted till his death.

The treatment meted out to the POWs by a nation reflects its high moral standards and the values it accords to the human rights. This is a concept which is historically seldom upheld by the belligerent nations and it has only worsened with time. The mass execution of the POWs by the Islamic States is a case in point. We can’t expect Pakistan to be any better.

Thirdly, Kirpal Singh reportedly died of heart attack. The post mortem conducted by doctors in Pakistan and India have not confirmed of any external or internal injury to his body. However, the missing organs like heart and lever from the body of Kirpal Singh raises some doubts and Pakistani authorities owe an answer to it. One strategy could be that the Indian establishment does not challenge the ‘heart attack’ theory as the cause his death.

The absence of heart the body will not let any visceral examination in India contradict this theory. Sarabjit Singh of India was murdered in the same Pakistani jail in 2013. Naturally, a parallel will be drawn between these two cases and people of India are once again reminded of the tragic end of Sarabjit’s life. There is a strong belief in India that Kirpal Singh may have been murdered in the same way.

Now the issue of prisoners serving a sentence in foreign jails needs to be deliberated at multi-lateral fora. The criminal justice system is at variance in different countries, so are the punishments for the same offence. The international community can be well advised to draw a Convention on the issues of prisoners convicted in a foreign country under its laws and serving the sentence.

There can be a bilateral agreement of prisoners’ exchange whereby the remaining part of unspent sentence can be served in the prisons of their home countries. But this requires honesty and true admission by the belligerent nations about the presence of foreign prisoners in their jails and exchange of data regarding it. As far as this case is concerned, this can be an additional point of Comprehensive Bilateral Dialogue (CBD) between India and Pakistan if the relationship has to move in right direction.