Ramya Ramachanderan – In May 2017, India initiated proceedings before the International Court of Justice (“ICJ”) against Pakistan alleging the violation of the Vienna Convention on Consular Relations (“VCCR”) when Pakistan’s military court detained, placed on trial, and sentenced to death, an Indian national, Mr. Kulbhushan Jadhav.[1]
The Pakistani Court had sentenced Jadhav to death in April 2017, after the initial arrest on March 3, 2016.[2] India alleges that Pakistan violated the VCCR when India’s requests and reminders for consular access evoked no response from Pakistan.[3] A total of 14 notifications were sent to Pakistan by the Indian High Commissioner in Islamabad.[4] Allegdly, Jadhav entered Pakistan on an Indian passport bearing a Muslim name, in the Balochistan area of South-Western Pakistan comprised primarily of the Baloch, an ethnic minority.[5] Balochistan is an area rich in minerals, and other natural resources. It is also a source of tension—with insurgent groups wanting separation from Pakistan, coupled with jihadist military organization.[6] Pakistan has previously accused India of supporting the separatist movement by backing the insurgents to increase the unrest in the area.[7]
The Baloch are an ethnic minority who suffer incredibly high rates of poverty, despite supplying Pakistan with invaluable minerals.[8] They are also subject to some of the worst human rights violations in Pakistan—both State and non-State actors subject the Baloch to torture, killing and rape.[9]
Pakistan claims that Jadhav is an officer with the Indian Navy, and that he was in Pakistan on an espionage mission, to support the insurgency in Balochistan in an effort to engage in state-sponsored terrorism.[10] While India has denied claims that Jadhav is an active duty officer with the Indian Navy, Pakistan released two videos of Jadhav’s “confession” to serving the interests of India’s military.[11]
India has argued that it learnt of Jadhav’s sentencing through the press, that the trial was a farce because consular access to Jadhav was not allowed despite repeated requests; that Pakistan’s actions are in violation of Art. 36(1)(a) and (c) of the VCCR.[12] India seeks provisional measures from the ICJ as a matter of urgency because Jadhav has been sentenced to death with a limited time to appeal, and because India has no access to Jadhav or to any information on his matter.[13]
Pakistan’s alleges that a copy of the passport used by Jadhav was given to Indian High Commissioner, that India’s failure to explain the passport is telling of its guilt.[14] Pakistan denies any accusation questioning the fairness of Jadhav’s trial, and his confession.[15] Pakistan’s basis for challenging India’s petition rests on three specific grounds—that there is no urgency; that the relief sought by India is unavailable; and that the ICJ has no jurisdiction under the 1963 VCCR.
So far, it seems that the ICJ has directed Pakistan to take “all measures at its disposal” to prevent the execution of Jadhav.[16] The ICJ’s press release as of June 2017 has fixed time-limits for the filing the written memorials by India and Pakistan.
While it may seem simple that neither India, nor Pakistan has engaged each other’s requests, the crux of this friction runs deep. The Partition of India that left thousands homeless, migrant, and separated families,[17] left scars that throb at the slightest diplomatic misstep. The area of Balochistan is highly contentious. Both India and Pakistan have so far blamed each other for the insurgency and Pakistan’s previous track record with human rights is not doing Pakistan any favors.[18] While it may be premature to make predictions on the arguments that India and Pakistan will advance to each other, it may not be entirely inaccurate that this case will highlight the plight of the Baloch.
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[1] I.C.J. Press Release No. 2017/16, The Republic of India Institutes Proceedings Against the Islamic Republic of Pakistan and Requests the Court to Indicate Provisional Measures (May 9, 2017).
[2] Case Concerning the Vienna Convention on Consular Relations (Ind. v. Pak.), Application Instituting Proceedings by India, filed in the Registry of the Court, 4-5 (May 8, 2017).
[3] Id. at 4.
[4] Id.
[5] I.C.J. Public Sitting, President Abraham Presiding in the Jadhav Case (Ind. v. Pak) (May 15, 2017).
[6] Qasim Nauman, What Is Pakistan’s Balochistan Insurgency and Why Is India’s Modi Talking About It?, Wall St. j.: Briefly (Aug. 17, 2016, 6:38 AM), https://blogs.wsj.com/briefly/2016/08/17/what-is-pakistans-balochistan-insurgency-and-why-is-indias-modi-talking-about-it-the-short-answer/; see also Karlos Zurutuza, Understanding Pakistan’s Baloch Insurgency, The Diplomat (Jun. 24, 2015), http://thediplomat.com/2015/06/cracking-pakistans-baloch-insurgency/.
[7] See id.
[8] Husain Haqqani, Injustices in Balochistan Need the World’s Attention, The Wire (Sept. 24, 2017), https://thewire.in/180723/balochistans-injustices-need-worlds-attention/.
[9] Syed Ali Shah, 800 Bodies Found in Balochistan in Past Three Years, Dawn (July 3, 2014), https://www.dawn.com/news/1116847.
[10] Salman Masood, Pakistan Releases Video of Indian Officer, Saying He’s a Spy, N.Y. Times (Mar. 29, 2016), https://www.nytimes.com/2016/03/30/world/asia/pakistan-releases-video-of-indian-officer-saying-hes-a-spy.html.
[11] Id.
[12] Case Concerning the Vienna Convention on Consular Relations (Ind. v. Pak.), Request for the Indication of Provisional Measures of Protection, ¶¶ 8-12 (May 8, 2017).
[13] Id.
[14] I.C.J. Public Sitting, supra note 5, at 9.
[15] Id. at 10.
[16] I.C.J. Press Release No. 2017/22 in the Jadhav Case (Ind. v. Pak.) (May 18, 2017).
[17] Shakeeb Asrar, How India, Pakistan and Bangladesh Were Formed, Al Jazeera (Aug. 10, 2017. 12:46 PM), http://www.aljazeera.com/indepth/interactive/2017/08/india-pakistan-bangladesh-formed-170807142655673.html.
[18] Haqqani, supra note 8.
