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Pakistan’s Accountability and International Obligations

S.R. Subramanian is working as an Assistant Professor at the Hidayatullah National Law University, Chhattisgarh and was with the Terrorism Prevention Branch, Division for Treaty Affairs, United Nations Office on Drugs and Crime, (UNODC), Vienna.
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  • January 06, 2009

    Undoubtedly, the 26/11 Mumbai terrorist attacks was an international tragedy. It was a crime under international law and as the serious concerns expressed by the UN Security Council demonstrates, it had the potential to threaten international peace and security. Accordingly, it had provoked outright and vehement condemnation by the international community.

    Taking into account domestic pressure for perceptible results, India has moved the “1267 Committee” of the UN Security Council to ban the Jamat-ud-Dawah, the predecessor of Lashkhar-e-Taiba, for its involvement in the crime. The world body had already on May 2, 2005 listed Lashkhar-e-Taiba as one of the “entities and other groups and undertakings associated with Al-Qaida”. Even before the Mumbai attacks, India had been demanding that the Jamat-ud-Dawah be brought under the purview of international measures (“Consolidated List”) but it could not materialize for evidentiary reasons. The Committee was not convinced of the available proof to meet the requirements of the UN Security Council Resolution 1390.

    However, the startling revelations of the connections between the Lashkhar-e-Taiba and Jamat-ud-Dawah in the aftermath of the attacks had forced the international community to proscribe the terrorist organization. As the decision goes, now Jamat-ud-Dawah with all its spellings and variations is considered an off-shoot of the Lashkhar-e-Taiba. Simultaneously, the entries of two other entities – al-Rashid Trust and al-Akhtar Trust International – are amended to include their disguised appearances. The Committee has also named four leaders of the Lashkhar-e-Taiba as “individuals associated with Al-Qaida”.

    The listing under UNSC Resolution 1267 demands three specific actions: effective measures of assets freeze, travel ban and arms embargo. All members of the United Nations shall take measures to freeze without delay funds and other financial assets of these individuals and entities including those derived from property owned or controlled by them or persons acting on their behalf, directly or indirectly. The proscribed individuals will also be prevented from entering into or transiting through the territories of other states. Significantly, the ban prevents the direct or indirect supply, sale or transfer of arms and related materials of all types including technical advice and assistance to these individuals and entities within their territories or by their nationals outside their territories.

    However, Pakistan placed Hafiz Saeed, only one of the four listed individuals, under house arrest for three months and technically froze the bank account after all the monies were flushed out. It does not appear that Pakistan is actively and decisively acting against the terrorists who have committed crimes against humanity and threatened regional tranquillity.

    Though Pakistan had already placed Jamat-ud-Dawah on the Watch List in 2003, but still allowed it to generate financial resources through the hawala route. Jamat-ud-Dawah has heavily invested in the establishment of model schools and dispensaries. Pakistan should remind itself that the provision of assets freeze under Paragraph 4 (b) of Resolution 1267 is not only limited to those existing assets but applies to any other funds, economic resources that may be available to such person’s benefit by their nationals or by persons within their territory.

    Moreover, Pakistan is insisting on ‘credible information and evidence’ for further action at its end, ostensibly to fulfil the requirements of domestic laws and procedure. However, a cursory reading of Pakistan’s Anti-Terrorism (Amendment) Act, 2001 (reportedly in force) would show that the standard of proof demanded of the action is not onerous. Section 11A empowers the federal government to ban any organization and to take up consequent measures if it has ‘reason to believe’ that the organization is ‘concerned in terrorism’. Hence, it is clear that the judgment of the executive will prevail over the legal process of enforcement. Also, the report of a leading international non- governmental organization made an assessment that Pakistan has done very little in the area of counter terrorism despite obligations under Resolution 1373.

    This leads to the inevitable conclusion that Pakistan is failing in its international obligations. It should remind itself that UN Security Council 1373 obligates it to not only to refrain from providing any form of support, but to prevent the use of its territories against other states or their citizens. If it can be established that Pakistan had supported terrorist groups, this may represent a breach of international obligations and may be held accountable.