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.
This article is a modified version of one originally written for The National
Reproduced by permission of Daily Times