International relations, as an academic discipline, is more tolerant to the interchangeable terms as compared to the international law, which is more particular about the use of terminology employed to clarify a set of facts. This difference exists because the change of terms, changes the implications in terms of responsibility and liability.
This gets illustrated in the use of term ‘state sponsored terrorism’ as against the term ‘state terrorism’. Whereas, the former implies “principal and agent” sort of relationship between the state and the actual perpetrators of an act of terrorism, the latter term, “state terrorism” brings in the larger role of state emanating out of its responsibility as a player of the international system and the obligations undertaken by states under various international legal instruments that cover the areas of: international human rights law, international treaties dealing with terrorism and international humanitarian law.
Pakistan presented a detailed dossier to Permanent Members of the United Nations Security Council (UNSC) on 16th November 2020. This detailed dossier – one of its kind in terms of the comprehensive nature of information provided – contained evidence on planning, promoting, aiding, abetting, financing and execution of terrorist activities by India on the territory of Pakistan.
The dossier was a starting point as it spelled out “evidence-based accusation” against India in calculated manner by terming it as “state sponsored terrorism”. On the strength of overwhelming evidence, “legal grade admissible” under the principles of law of evidence as applicable in international criminal law, the purpose was to invite the attention of the guardians of international peace and security towards their fundamental role in the Security Council, which has passed numerous resolutions on the subject of terrorism.
India’s Obligations under UNSC Resolution 2232 of 2016
Amongst others, the Security Council in its Resolution 2232 of 2016 reaffirmed principles of sovereignty, territorial integrity and political independence. UNSC also condemned terrorism in all its forms and declared it to be a ‘great’ threat to international peace and security. The UNSC Resolution (2232 of 2016) expressed its intentions in its various recitals and linked it to the applicable international human rights law, international conventions, protocols qua terrorism and the international humanitarian law.
It specifically integrated the obligations to earlier UNSC Resolutions 1372 of 2001 dealing with Countering Financing of Terrorism (CFT), and also UNSC Resolution 2178 of 2014 addressing the issue of Foreign Terrorist Fighters (FTF). The UNSC Resolution 2232 of 2016 thus requires concrete steps to be taken by the member states; some of these important steps are:
- Hold perpetrators of terrorism accountable for their acts;
- Sharing of information (biometric and biographic) via bilateral, regional or global law enforcement channels in accordance with the domestic national law and policy;
- Provision of such information to multilateral screening databases;
- Downgrade, for official use, the intelligence threat data and provide the same to border control agencies like customs and immigration;
- Share information to check CFT as required under Recommendation 5 (international cooperation) of the Financial Action Task Force;
- Exchange information and cooperate in administrative, police and judicial matters;
- Use mutual legal assistance mechanisms and Mutual Legal Assistance (MLA) Requests;
- Coordinating with United Nations Office on Drugs and Crime (UNODC) for training and capacity building of its officers;
- Develop close cooperation with International Police Organization (INTERPOL) which has I-24/7 global information system (providing 18 databases that can be accessed on real time basis);
International Law: Differences between Indian & Pakistani approaches
Pakistan, especially since 9/11, has frequently shared actionable information that helped international community and other member countries across Europe in checking the rising tide of terrorism. This has been acknowledged many times – especially by the UK.
In the instant case, Pakistan has been compelled to share information in the form of a dossier with the Permanent Members of the UNSC (P-5) as India is acting with impunity. The illegal actions of India have increased due to acquiescence of some influential members of international community to its blatant violations of international human rights law and aggressive overtures on the line of control.
Under the international legal obligations, India should have received the information laid by Pakistan before the UNSC responsibly by initiating legal action under its domestic law and by closely collaborating with Pakistan’s law enforcement agencies.
Pakistan, on its part, has always acted responsibly. It has most often, than not, investigated information laid by other states particularly by India within the framework of international terrorism law. Pakistan thus never favored illegal acts by rogue elements and has always voiced against the state sponsored terrorism; it evinced its bona fides by registering First Information Reports (FIRs) in connection with Mumbai and Pathankot attacks by using its national extra-territorial criminal law.
It must be noted that Pakistan adhered to the principle of the rule of law by cooperating with law enforcement agencies of other countries and by using diplomatic, administrative, police and judicial channels for exchange of evidence and intelligence.
Contrary to the approach of Pakistan, India persistently follows the policy of discrediting international institutions. It resisted the detailed, interconnected information shared in the dossier, by merely calling it a “figment of imagination” in total disregard to its obligations under UNSC Resolution 2232 of 2016.
India is now in total denial of rulebased multilateral legal framework. This dangerous situation has developed after India was earlier not held accountable for its unilateral and illegal acts by international community at large on blatant international human rights violations and the recent illegal annexation of the internationally disputed territory of the Indian Occupied Kashmir.
Pakistan, especially since 9/11, has frequently shared actionable information that helped international community and other member countries across Europe in checking the rising tide of terrorism
India’s growing impetus for disregarding UNSC Resolutions flows from its daily violations of the Line of Control where it resorts to aggressive acts killing innocent citizens on the side of Azad Jammu and Kashmir (AJK). Despite numerous challenges to the international legal system, area of international terrorism law offers a converging incentive to many a player of international relations. Pakistan’s experience with FATF compliance shows that global law on the subject is still a reality.
Along with presenting the information related to involvement of India in cross border terrorism, a point of departure for Pakistan can be to initiate legal action under its own domestic laws. After enacting FATF related legislation, its national law offers a very useful toolkit that links the national legal system with the international global institutions through the platforms of international law enforcement apparatus in the form of INTERPOL and Counter-Terrorism Committee of the UNSC.
India is already trying to frustrate the rule based multilateralism through its illegal actions that provide increasing evidence on its transition from state sponsored terrorism to state terrorism; this observation was vouched by Asia Pacific Group Yearly Typologies Report 2020, wherein it noted the role of India in terrorism financing in the following words: “…The network, which operated mainly out of India but also had connections to the UK and the US, used Australian bank accounts, corporate structures and complicit remitting agents in Australia and overseas to launder the funds…”.
Evidence based legally backed approach is the way forward for regional stability and must be adopted by both India and Pakistan to bolster international peace and security and for international financial system.
Kamran Adil is senior police officer, currently serving as Additional Inspector General Police. He studied law at the Oxford University and writes and lectures on international law.
The views expressed in this article are the author’s own and do not necessarily reflect the editorial policy of Global Village Space.