DNA Edit: A life at stake

India’s decision to approach the International Court of Justice (ICJ) against the death penalty awarded by a Pakistan military court to its former naval officer Kulbhushan Jadhav and the court’s stay order on the sentence has clearly caught Pakistan unawares. The proceedings in a military court was unwarranted considering that Pakistan’s criminal justice courts could have tried the case. A death penalty for alleged espionage is also unheard of. Furthermore, Pakistan’s de facto foreign minister Sartaj Aziz had suggested that there was not enough evidence to try Jadhav for espionage.

There is the possibility that India’s move to approach the ICJ will lead to Pakistan mimicking this strategy and attempting to internationalise the Kashmir issue. But with the life of an Indian citizen at stake and Pakistan grossly violating the basic tenets of the Vienna Convention on Consular Relations while prosecuting Jadhav, India had a strong case. With diplomatic efforts to make Pakistan see reason not succeeding and world nations failing to put pressure on the rogue state, India had no option but to approach the ICJ.

India’s case that Pakistan violated the Vienna Convention is straightforward. It is on record that Pakistan denied India consular access to Jadhav despite 16 requests. Article 36(1) of the Vienna Convention states that “consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation”.

Moreover, India has claimed that Jadhav was kidnapped from Iran though his arrest was recorded from Balochistan on March 3, 2016, and Indian authorities were notified of the arrest only on March 25. While the Vienna Convention does not stipulate a time limit— the notification of the arrest should be done “without delay” — Pakistan’s refusal to give consular access and tying it to the investigation process is unjustifiable. Consular access is unconditional under the Vienna Convention.

The stay order is a double blow to Pakistan because it implicitly accepts that the lack of consular access denied the best possible legal aid to Jadhav during his trial by Pakistan’s military court for alleged espionage. India was also able to convince the ICJ that an immediate stay order was warranted as Pakistan could execute Jadhav before the merits of India’s case were heard by the ICJ. The ICJ order is binding, but will Pakistan pay heed?