ICJ gave breather to India, now India-Pak should talk on all prisoners

Jatin Desai
Monday, 22 July 2019

It also says, “If any party in a case fails to perform the obligations incumbent upon it under a judgement rendered by the court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgement.” 

The International Court of Justice’s (ICJ) ruling on Kulbhushan Jadhav is significant in many ways. It is a major relief for India and provides an opportunity to take it forward. The ruling also means the Consular Access (CA) is a fundamental right of the prisoner/s held by other countries. In a wider sense, the ruling will also benefit more Indian and Pakistani prisoners languishing in each other’s prisons.

The ruling of ICJ is obligatory to the concerned parties. Article 94 of the UN Charter says, “Each member of the UN undertake to comply with the decision of the ICJ in any case to which it is a party.” It also says, “If any party in a case fails to perform the obligations incumbent upon it under a judgement rendered by the court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgement.” 

It means if Pakistan fails to implement the verdict, then India can approach UNSC. The fear of China using the veto, if such situation arises, to assist Pakistan is least as China’s jurist on the ICJ panel backed majority view.  

The ICJ said, “Islamic Republic of Pakistan deprived the Republic of India of the right to communicate with and have access to Mr Kulbhushan Sudhir Jadhav, to visit him in detention and to arrange for his legal representation, and thereby breached the obligations incumbent upon it under Article 36, paragraph 1 (a) and (c), of the Vienna Convention.” Pakistan’s argument was they are exempted from giving CA as Jadhav is a spy. ICJ rejected Pakistan’s contention.

Now, Pakistan has to provide consular access and review the trial process. It is also the responsibility of Pakistan to provide Jadhav with a fair judicial hearing. Pakistan’s Ministry of Foreign Affairs (MoFA) has in a statement said, “As a responsible state, Pakistan will grant consular access to Commander Kulbhushan Jadhav according to Pakistani laws, for which modalities are being worked out.”

The verdict makes it clear that CA is a fundamental right and has to be given to every foreign prisoner irrespective under which charge he/she is arrested. In case of Jadhav, Indian High Commission (IHC), Islamabad, had sent more than 50 letters to Pakistan’s MoFA requesting them to provide CA. In case of Hamid Ansari, who was released and repatriated by Pakistan in December 2018, IHC had sent 106 requests to Pakistan for CA. The CA gives an opportunity to the officials of the embassy/high commission to interact with the arrested persons and also provides legal recourse for the arrested persons.

Pakistan is also claiming their victory as ICJ has not annulled the trial and not ordered release and repatriation of Jadhav. Anyway, the ICJ ruling is a breather for India. It has provided some time and backchannel dialogue needs to be initiated. The positive atmosphere created by recent meeting on Kartarpur Corridor and opening of airspace by Pakistan coupled with the arrest of Hafiz Saeed can be taken forward. It will not be easy for Pakistan to release Jadhav but, Imran, with the help of the Army, can take bold decisions like releasing IAF pilot Abhinandan.

WHY CAN’T BOTH THE COUNTRIES BEGIN DIALOGUE FROM PRISONERS’ ISSUE?
- They should restore Joint Judicial Committee on Prisoners whose last meeting was held in October 2013 in India. Pakistan should immediately nominate their four retired judges of the higher judiciary.
- Both countries should release and repatriate all the fishermen from their custody as recommended by the Judicial Committee on Prisoners.
- They should also release and repatriate all the women prisoners and prisoners who are above 65 years of age.
- They should notify the arrest of prisoners and provide CA within the three months of arrest as per the provision of Agreement on Consular Access. The list of the arrested prisoners should be put on their websites.
- Regular team of doctors must be sent to other country to check the health conditions of prisoners of their country.

If these small but important steps are taken, then the prisoners of each other’s countries, who languish in each other’s prisons, can take a breather. Let us see Jadhav’s case and see how justice can be done to hundreds of Indian and Pakistani prisoners languishing in each other’s countries for years.

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