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Kulbhushan Jadhav Case and Investigations in Terrorism Cases

Kulbhushan Jadhav Case

Kulbhushan Jadhav Case

and

Investigations in Terrorism Cases

Kamran Adil

  1. Introduction

In a research article titled ‘Is the International Court of Justice Biased?’ (2005), Professor Eric Posner of the University of Chicago noted about the International Court of Justice (ICJ), on the strength of ‘empirical evidence’, that:

  1. judges favour the states that appoint them;
  2. judges favour states whose wealth level is close to that of the their own states, and weaker evidence;
  3. judges favour states whose political system is similar to that of their own states; and
  4. (more weakly) judges favour states whose culture (language and religion) is similar to that of their own states.

The research was not the first and the last attack on the work of the ICJ that is as political as the United Nations (UN) itself. The fates of the UN and the ICJ are intertwined. The Statute of the ICJ is an annex of the Charter of the United Nations, and this legal annexation establishes an epistemological and ontological relationship between the two. Notwithstanding this integral interdependence, the work of the ICJ is perceived as a ‘dispute-settlement mechanism’ of the international legal system; the perception is often belied. In the Jadhav Case between India and Pakistan, which was finally decided on 17th of July 2019, the ICJ, once again reaffirmed the fact that it is as political as the UN. Avoiding the nationalistic and political binary analyses of the case, the instant write-up will present systemic issues that have not been addressed by the judgement rendered by the ICJ in the case; underlining the omissions will help draw lessons to map future trends of the working of the court.

  1. Systemic Omissions

Select ‘systemic omissions’ stated hereunder are based on the methodological approach of the ICJ in the case, and may be useful in informing on the way the cases have been ‘adjudicated’ by the ICJ:

  1. Facts not Established

The ICJ decided the case without establishing the facts. Paragraphs 20 to 32 deal with the factual background of the case. The judgement records, in paragraph 20, that the Parties (i.e. India and Pakistan) ‘disagree’ on several facts. The ‘disagreement’ has not been reconciled and without establishing facts, the ICJ applied the law. This ‘application’ of the law without clarifying the facts is a methodological problem with the ICJ. It is understood that all the facts cannot be clarified in an international ‘adjudication’ and neither is the ICJ a fact-finding court that could inquire into all the facts, but ‘essential facts’ should have been clearly established. In the instant case, the essential facts of India and Pakistan were diametrically opposing to each other’s narrative. While India alleged that Jadhav was ‘kidnapped’ from Iran, Pakistan’s claim was very straightforward that he was arrested from Balochistan (Pakistan). The factual controversy was not settled and the ICJ proceeded to apply law without deciding this ‘material essential fact’. Plain reading of the judgement shows that India practiced Carl Sandburg’s axiomatic quotation ‘if facts are against you, argue the law’.


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