Lest bias creep in

In the Jadhav case (India v Pakistan), one of the members of the court, Judge Cancado Trindade, gave a concurring opinion. The statute and rules of court allow a concurring opinion where a judge gives reasons for his/her decision. This is a common practice for the ICJ judges to append a concurring or dissenting opinion or a declaration. Judge Bhandari, an Indian member of the court, voted in favour of the provisional measures order of 18 May 2017. He also appended a declaration. It is common for a ‘nationality judge’ to vote in favour of their country. Only the exceptionally fine ones vote impartially.

More worrying is the concurring opinion of Judge Trindade as it is likely that he will be swayed by his ‘humanist universal outlook’ rather than the constraints of positive law and evidence before the court. He said that ‘given the great importance that I attach to certain aspects pertaining to the matter dealt with in the present Order, I feel obliged to append this concurring opinion thereto […] so as to leave on the records the foundations of my own personal position thereon’. He deplored that ‘the constraints of legal positivism had wrongly been indifferent to other areas of human knowledge, as well as to the existential time of human beings, reducing this latter to an external factor in the framework of which one was to apply positive law’. The gist of his discussion seems to be that cases in which the right to life is involved, judges should take humanitarian considerations into account instead of feeling constrained by positive law or rights of the state. Expressing his jubilation at the order, he stated that ‘always faithful to this humanist universal outlook, I deem it fit to advance it, once again, in the present concurring opinion in the order that the ICJ has just adopted […] in the Jadhav case’.

This might sound a lofty ideal but it is legally unsound for many reasons. First, judges need to be independent and impartial, ie, no pressures or biases should influence their judicial functions. They take a solemnly declaration that ‘I will perform my duties and exercise my powers as judge honourably, faithfully, impartially and conscientiously’. Second, sovereign states agree to certain treaties and when there is a dispute in respect of their interpretation or application, they may take their disputes to a judicial forum such as the ICJ. They agreed to a set of rules in the form of treaties and consent to the ICJ jurisdiction so that it can decide disputes according to international law.

Third, the ICJ jurisprudence provides evidence where humanitarian considerations were not given weight, as in the case of Avena (Mexico v USA) of 16 July 2008, three judges said that ‘humanitarian considerations […] cannot override the legal requirements of the Statute of the Court’.

Fourth, the ICJ indicates provisional measures to maintain a status quo, ie, ‘to preserve the respective rights of either party’ until the court finally decides the case. Provisional measures may be indicated by the court in any dispute not only those involving the right to life. Fifth, the right to life is also not an absolute right under the International Covenant on Civil and Political Rights 1966 to which India and Pakistan are parties.

If human rights law allows such an exception to the right to life, then handing down the death sentence to Jadhav by a competent court does not breach Pakistan’s human rights obligations. Finally, lofty humanist ideals may be expressed at other forums but they must not influence decision of judges binding sovereign states parties to a dispute before the court because the ICJ’s ‘function is to decide [disputes] in accordance with international law’.

Published in The Express Tribune, May 25^th, 2017.

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