Kulbhushan Jadhav's sentence: Like the LaGrand brothers

Kulbhushan Jadhav’s options at the ICJ in The Hague

Published - April 14, 2017 12:15 am IST

New Delhi: File photo of former Indian naval officer Kulbhushan Jadhav who has been sentenced to death by a Pakistani military court on charges of 'espionage'. PTI Photo (PTI4_11_2017_000103B)

New Delhi: File photo of former Indian naval officer Kulbhushan Jadhav who has been sentenced to death by a Pakistani military court on charges of 'espionage'. PTI Photo (PTI4_11_2017_000103B)

Brothers Karl and Walter LaGrand, German nationals permanently residing in the U.S., were arrested in 1982 in Arizona for an attempted bank robbery. The bank manager was killed and an employee seriously injured. In 1984, they were convicted of first-degree murder and sentenced to death.

The LaGrands being German nationals, the Vienna Convention on Consular Relations, 1963 requires the competent U.S. authorities to inform them of their right to communicate with the German consulate.

Article 36 of the Convention allowed consular officers the right to access, converse and correspond with nationals in prison, custody or detention and arrange private legal representation — a lawyer of the nationals’ own choice — to defend them during trial. None of this occurred in the case of the LaGrands. In fact, the German consulate knew of their predicament only in 1992 after the siblings reached out to it.

Germany brought the LaGrand case to the International Court of Justice (ICJ) in The Hague against the U.S. for breach of Article 36 of the Convention barely a week after Karl was executed on February 24, 1999. The ICJ issued an order of injunction to prevent Walter from being executed. But on March 3, Walter too was executed.

Closer home, Pakistan and India have accepted the Vienna Convention of 1963. News reports from Pakistan suggest that Pakistani authorities “repeatedly refused” Indian consular officers access to the former Navy personnel, Kulbhushan Jadhav, who has been found guilty by a military court of espionage activities.

India can move the ICJ for an immediate injunction against Mr. Jadhav’s death sentence. It can present a case against Pakistan for breach of the rights of Mr. Jadhav under Article 36 of the Vienna Convention by depriving Indian consular officers of the possibility to render him assistance.

India can seek a “review and re-consideration” of the conviction and death sentence awarded to Mr. Jadhav in the light of the rights set forth by Article 36. A pending case in the ICJ would deter Pakistan from executing Mr. Jadhav before the final decision of the ICJ. Further, it may prevent something like this from happening in the future on the part of either country.

The LaGrand case saw the U.S. undertake a “commitment” to ensure implementation of specific measures adopted in the performance of its obligations under Article 36 in case a foreign national is taken into custody, detained or imprisoned. A similar ‘commitment’ can be extracted from Pakistan before the ICJ if Mr. Jadhav’s case is taken there.

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