Interestingly, it was debated at the UN whether the International Criminal Court should be empowered to try international terrorists, which is actually the only genuinely workable solution to an international problem. The only reason a decision could not be reached was because members could not agree on a definition for terrorism!
For quite some time, eminent jurists have been arguing for new laws to deal with international terrorism. Perhaps it is time to attempt to understand why.
When an individual is under investigation for committing a crime, he is initially a suspect. When sufficient prima facie evidence is produced before a court to establish that the individual may be guilty, he progresses to become an accused. And finally, if found guilty, he is elevated to the rank of a convict.
The problem with convicting criminals of terrorist activities is that while the rank and file of terrorists who set forth to commit such acts could be apprehended and sufficient evidence may be found to convict them, linking them with the masterminds and organisers and finding the evidence to convict the latter in any court of law is virtually impossible since evidence against them will almost never be ‘beyond reasonable doubt’.
For instance, if Zakiur Rahman Lakhvi, a Lebanese national residing in Pakistan, arrested by the Pakistani authorities on suspicion of masterminding the Mumbai attacks, even though the Indian authorities have now accused him in an afterthought, is indeed guilty, his instructions are likely to have been conveyed through a conduit who is unlikely to be able to identify the person from whom he received his orders.
Thus, it is possible that, while a link with individual(s) of the Jama’at-ud Dawa, the organisation he heads, could be established, it is highly unlikely that sufficient evidence which could convict the mastermind in any worthwhile court could ever be found.
That raises the next question: can an organisation, or the head of an organisation, be held responsible under the existing canons of Anglo-Saxon law for criminal acts committed by individual(s) in the employ of the organisation? The answer would obviously be in the negative, just as no state can be held responsible for the acts of individual citizens of that state.
Were we to assume that sufficient evidence was available to try Lakhvi in a court of law, the next logical question would be: where should he be tried? Being a Lebanese, should he be tried in his country of origin or, since he was residing in Pakistan when he committed the crime, in Pakistan or, if an extradition treaty existed between India and Pakistan, which does not, should he be tried in India, where the crime was committed?
It is due to these complications under existing canons of law, bound by the criminal act(s), the criminal procedure code(s), and the laws of evidence, under which it would be impossible to convict those who create terrorists, that most countries are seeking shortcuts to the trials of terrorists.
The US has set up facilities like Guantamo Bay, where suspects can become guilty without passing through the process of being accused or convicted; where people are held interminably and tortured. It has also set up military courts which, despite a US Supreme Court ruling, violate all canons of law, resulting in punishing guilty and innocent indiscriminately. India, like some other countries, is planning to have special laws for terrorist activities.
The problem is not only compelling but an international one, and deserves an international solution. Interestingly, it was debated at the UN whether the International Criminal Court should be empowered to try international terrorists, which is actually the only genuinely workable solution to an international problem. The only reason a decision could not be reached was because members could not agree on a definition for terrorism!
To revert to the example of the Mumbai attacks, India continues to assert that it has provided Pakistan with ‘incontrovertible evidence’ of the involvement of its citizens in the attack, while Pakistan denies receiving any such evidence. This standoff will continue unresolved unless the evidence is produced before a neutral body.
Were India to present ‘incontrovertible evidence’ to the ICC, Pakistani citizens could be tried without apprehensions of the innocent being punished or the guilty being let off. Similarly, if some, apparently innocent accused, which have been punished by US ‘Military Courts’, were to be tried by the ICC, they would surely be found innocent.
However, for this to succeed, it would be necessary to amend existing laws to deal with terrorists. Perhaps, instead of a person being presumed innocent unless proven guilty ‘beyond reasonable doubt’, the canon should be amended to read ‘within reasonable doubt’. Secondly, sufficient circumstantial evidence should suffice to link the perpetrators of a terrorist act to those who have ordered/masterminded it. Thirdly, laws and procedures relating to evidence and procedures should be made more flexible so that the guilty cannot escape unpunished on a mere technicality.
Finally, in the trial of terrorists by the ICC, the jury should, instead of being ‘peers’ of the accused, be selected from a panel of international jurists and academic experts on terrorism, perhaps an equal number of each, with members from the country of origin of the accused and the country where the act was committed being disqualified to sit as members of the court or as jurors. While the prosecutor and the defence attorney should be allowed to question the potential jurors, their selection should remain the prerogative of the court.
While no system is infallible and even one based on the suggestions made above is bound to err occasionally, such a process is most likely to end up punishing the guilty and setting the innocent free. It is also likely to be the least controversial and will avert the possibilities of situations like the current state of heightened tensions between India and Pakistan. (Daily Times)
....THERE are several ways to interpret the latest actions against the Jamaatud Dawa. A sceptical interpretation would emphasise the severe diplomatic pressure Pakistan has been under in recent days and take note of the fact that the Saudi intelligence chief was in Pakistan the day before the details of the post-Mumbai crackdown were made public. From this point of view, the pressure on the Jamaatud Dawa is not serious or long-term and will abate once the world’s attention is diverted. The more positive interpretation would be that forging a consensus in the Pakistani state apparatus to go after militant networks is a delicate process and that now, finally, some eight weeks since the Mumbai attacks, everyone is on the same page and the mission is to shut down militant networks in Pakistan once and for all. The events of the days ahead will make it clear whether it is the former or the latter interpretation which is true — or, indeed, if the truth is somewhere in between. In the best-case scenario, Pakistan will shut down all visible signs of militant networks; cut off their sources of funding; and arrest and prosecute militant leaders.
More difficult, especially for India, will be to exercise the patience to wait and see if Pakistan is sincere in its fight against terrorists operating from its soil. In recent days there has been a concerted campaign across the border to step up the rhetoric against Pakistan. This is unfortunate, though perhaps not hard to explain. No doubt some in New Delhi, and in other capitals, will look at Thursday’s announcement of the sweep against the Jamaatud Dawa and wonder why those actions were not announced immediately after the UN added the organisation and some of its leaders to a terrorist watch list. Yet, New Delhi’s sometimes harsh tone has been part of the problem. It is very difficult for a government on either side of the border to appear to be caving in to pressure from the other, so whenever inflammatory rhetoric emanates from India, Pakistan is likely to baulk at doing what is in the interest of everyone in the region.
By the same token, the Pakistan state must understand that going soft on terror, the perceived status quo, is no longer acceptable. It need look no further than Saudi Arabia to know in which direction the wind is blowing internationally. The Saudi government is believed to have sent a clear message to Pakistan: Mumbai-style attacks are unacceptable and Pakistan needs to move firmly against militant groups. The folly of a Faustian bargain with militants — whereby they are left alone if they do not attack the state in which they reside — is now clear to everyone. Pakistan has never benefited from the jihadi groups and never will. It is time the state accepts that reality. (Dawn)