In an unfortunate development, the Pakistan Army said that would not provide India consular access to former Naval officer Kulbhushan Jadhav, who was sentenced to death by a military court last week. This announcement comes days after New Delhi had sought a certified copy of the chargesheet and the military court order in the case, in addition to consular access to Jadhav. New Delhi has maintained that it will treat Jadhav's sentencing as murder if Islamabad goes ahead with the execution, claiming that he was abducted while on a business trip to Iran.
Pakistan's conduct during this entire affair (failing to inform Indian authorities of his detention and refusal to provide consular access to Indian authorities) is in clear contravention of Vienna Convention on Consular Relations, 1963 (VCCR), to which both India and Pakistan are signatories. "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," writes Yateesh Begoore, a lawyer specialising in public international law, in a recent column for an Indian news website.
There is little doubt that the entire process of trial and sentencing that Jadhav was subjected to reeks of impropriety. Civilians should not be tried before military courts, where their rights are not protected. Military tribunals are not regarded as independent and employ exceptional procedures that violate basic individual freedoms. Since the Pathankot terror attack, bilateral relations have remained rather tense.
At this juncture, it is hard to tell what is happening in the Jadhav case definitively. What is evident, however, is that little or no due process was followed in Jadhav's trial, contrary to international law. Unlike Islamabad, New Delhi has remained consistent in its assertions that he was not a RAW agent but was kidnapped, and taken to Pakistan. Also, Islamabad must contend with the reality of what it would mean for Pakistani spies caught in India if they went ahead and executed Jadhav. Does Pakistan want to go down that path? However, the Pakistani civilian administration in Islamabad seems powerless.
It's the Pakistani military which is calling all the shots. Under these circumstances, New Delhi may well have to initiate legal proceedings against Pakistan before the International Court of Justice (ICJ) for violation of international law.