Death in German custody

There are sensible and learned people in Pakistan and in Islamabad too but unfortunately not in the government. Here is a letter written to Editor Dawn by AMIR MOHAMMAD KHAN of Islamabad (published on May 19, 2006) which describes the action which should have taken by the government of Pakistan and can be taken even now.

THE death of Amir Cheema in the German police custody has generated serious legal and moral questions. It is extremely important for Germany to initiate discussion with family members of the deceased through the government of Pakistan and try to allay their misperceptions and misgivings.

It is equally important for Pakistan to come clean on the issue and clarify whether consular access to Mr Cheema was denied. Pakistan must raise this issue with the German government in the light of Vienna Convention on Consular Relations, to which both Pakistan and Germany are parties.

The Convention rests on centuries of accumulated experience. Pakistan in this case must seek redress in two categories of rights: for violations of rights owed to it, and also in the exercise of diplomatic protection in the light of the breach of duties owed to its national. Pakistan can ask courts to adjudge and declare that:

1. Germany, in arresting and interrogating Amir Cheema, violated its international legal obligations to Pakistan, in its own right and in the exercise of its right of diplomatic protection of its national, as provided by Articles 5 and 36 of the Vienna Convention; Article 5 (e) of the Vienna Convention includes protecting the interests of a sending state?s nationals and providing consular assistance to nationals of the state as among the consular functions protected by the Convention. Article 36 implements certain provisions of Article 5 (e) in the case of detained nationals.

2. Germany has acted in violation of obligations owed to Pakistan under Article 36, sub-paragraph 1 (b), of the Vienna Convention on Consular Relations. The authorities in Germany detained a Pakistani citizen without advising him of his right to consular assistance or notifying Pakistan consular officers of his detention.

3. Germany is under an international legal obligation not to apply the doctrine of ?procedural default?, or any other doctrine of its internal law, so as to preclude the exercise of the rights accorded under Article 36 of the Vienna Convention.

4. Germany is under an international legal obligation to carry out in conformity with the foregoing international legal obligations any future detention of or criminal proceedings against any other Pakistani national in its territory, and that, pursuant to the foregoing international legal obligations, the German government must accept that:

(a) Any criminal liability imposed on Amir Cheema and the treatment meted to him was in violation of international legal obligations and is void, and should be recognized as void by the legal authorities of Germany;

(b) Germany must accept full responsibility and compensate the deceased family.?

(c) The German government should provide Pakistan a guarantee of the non-repetition of such illegal acts.