January 5, 2009
By Syed Akbar
Hyderabad, Jan 4: Pakistan is bound by "duty to cooperate" under international law to hand over to India those involved in the Mumbai terror attacks.
According to former Union law secretary Dr P Chandrasekhar Rao, who is presently a judge in the International Tribunal for the Law of the Sea, though there's no formal extradition treaty between India and Pakistan, the latter is bound by "duty to cooperate" with India. It is also bound under international law to investigate into the evidence produced by India and try the terror masterminds on its soil.
He, however, said India cannot compel Pakistan legally to surrender its nationals. Also India cannot approach the International Court of Justice against Pakistan. He said no international court is competent to look into the matter unless both India and Pakistan agree to subject to its jurisdiction.
"But since it was not an ordinary offence and the terror master plan was executed on the Indian territory, Pakistan should hand over India those behind the Mumbai and other terror attacks. It is appropriate that the terror suspects are put on trial on the Indian soil as there's enough material of evidence here. India is the convenient forum to deal with the accused. Full justice can be done only if the trial is done in India," Dr Rao told this correspondent.
The existence of an extradition treaty is not a prerequisite for surrendering of terror suspects, particularly in cases like Mumbai terror attack, which is an onslaught on the political independence and territorial integrity of India. Pakistan is under strict obligation under international law either to prosecute the terror suspects or extradite them to India.
"Pakistan can now do two things. Because of the duty to cooperate, it should investigate and gather its own evidence. Or it should look into evidence furnished by India and see in what respect it should provide evidence to surrender them to India," he said. Mohammad Amir Kasab,the lone surviving terrorist in the Mumbai attack, has already written a letter to Pakistani authorities seeking legal assistance.
There's prima facie evidence pointing towards suspects in Pakistan. In terror related offences strict proof becomes practically difficult. Prima facie it should be taken and acted up. Pakistan should act in good faith. Whether Pakistan as a state is involved or not, it is bound under international law not to allow its territory in a manner prejudicial to the territorial integrity or political independence of India.
"Pakistan, therefore, cannot use the non-state actors doctrine as an excuse for what has happened. It cannot wash off its hands by saying that the persons who perpetrated this offence in India are non-state actors. It cannot also say that similar attacks also take place in its territory. It cannot be used as a justification. Moreover Kashmir conflict cannot be taken as an excuse," he said.
Dr Rao said in law "continuous state of denial" also legitimately creates a sense of suspicion that Pakistan do not want to cooperate with India. This is clear from its refusal to look at extradition as a means and the enormity of the offence.
Ruling out "hot pursuits" or "surgical attacks" under international law, he said India should think of rallying friendly nations to impose economic sanctions on Pakistan.
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