JADHAV CASE: A DIPLO­MATIC TUG OF WAR

India Today - - UPFRONT - —Geeta Mo­han

The In­ter­na­tional Court of Jus­tice in The Hague had directed Pak­istan in July to stay the ex­e­cu­tion of Kulbhushan Jadhav and grant him con­sular ac­cess. Jadhav has been in Pak­istan’s cus­tody since 2016 af­ter be­ing ac­cused of ter­ror­ism, spy­ing and fo­ment­ing trou­ble, and was sen­tenced to death in 2017 by a mil­i­tary court. In­dia, how­ever, main­tains that he was kid­napped in Iran and his pres­ence in Pak­istan was never cred­i­bly ex­plained.

This week, a meet­ing fi­nally took place be­tween In­dia’s chargé d’af­faires

Gau­rav Ah­luwalia and Jadhav. How­ever, de­spite In­dia’s ob­jec­tion, it happened in the pres­ence of Pak­istani of­fi­cials, who also recorded the en­tire pro­ceed­ings.

On Au­gust 1, In­dia had re­jected a pro­posal of con­sular ac­cess say­ing that the terms and con­di­tions did not ad­here to the spirit of the Vi­enna Con­ven­tion on Con­sular Re­la­tions. New Delhi had sought “unim­peded” and “un­in­ter­rupted” ac­cess to Jadhav with­out scru­tiny from the Pak­istani es­tab­lish­ment.

The pro­vi­sions in the Vi­enna Con­ven­tion re­gard­ing con­sular ac­cess are vague.

Pak­istan main­tains that the terms and con­di­tions un­der which ac­cess was granted did not vi­o­late Ar­ti­cle 36 (1) (c), which sim­ply says 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’, but doesn’t spell out how the con­sular ac­cess should be pro­vided to the send­ing State (In­dia). In fact, Ar­ti­cle 36 (2) says ‘this ar­ti­cle shall be ex­er­cised in con­form­ity with the laws and reg­u­la­tions of the re­ceiv­ing State’, which, in this case, is Pak­istan. So, Is­lam­abad in­sisted their of­fi­cials be present, but promised that there would be no in­ter­fer­ence. In­dian sources said that “hu­man­i­tar­ian con­sid­er­a­tions over­ruled In­dia’s reser­va­tions”, and they had to see how Jadhav was far­ing phys­i­cally and men­tally.

The one point on which In­dia dug in its heels was to not have any mil­i­tary pres­ence in the room, to which Pak­istan agreed. The at­mos­phere for the meet­ing was cer­tainly not ideal, but In­dia had to make do. The min­istry of ex­ter­nal af­fairs, in a state­ment, said: ‘It was clear that Shri Jadhav ap­peared to be un­der ex­treme pres­sure to par­rot a false nar­ra­tive to bol­ster Pak­istan’s un­ten­able claims. We will de­cide a fur­ther course of ac­tion af­ter re­ceiv­ing a de­tailed re­port from our Cd’A and de­ter­min­ing the ex­tent of con­form­ity to the ICJ di­rec­tives’.

Con­sid­er­ing this was Ah­luwalia’s first meet­ing with Jadhav, this is not sur­pris­ing. The next step would be to en­sure le­gal aid and a free and fair trial for the In­dian na­tional. Pak­istan will have to go be­yond just a one-time con­sular ac­cess to fully abide by the ICJ judg­ment. ■

THE VI­ENNA CON­VEN­TION SAYS CON­SULAR AC­CESS SHOULD BE GIVEN IN AC­COR­DANCE WITH THE LAWS OF THE RE­CEIV­ING STATE (IN THIS CASE, PAK­ISTAN)

REUTERS

SEEKING JUS­TICE In­dian of­fi­cials at the In­ter­na­tional Court of Jus­tice; and Kulbhushan Jadhav (in­set)

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