Pakistan’s disingenuous prosecution of terror suspects weakens a basic principle of international law — the duty to extradite or prosecute accused offenders.

On December 11, 2008, Hafiz Muhammad Saeed, leader of the internationally recognised terror outfit Lashkar-e-Taiba, which carried out last year’s horrific attacks in Mumbai, was placed under house arrest in Lahore. Mr. Saeed was held on charges under Pakistan’s Maintenance of Public Order law, which allows authorities to detain individuals likely to create disorder. In early June 2009, the Lahore High Court deemed Mr. Saeed’s confinement unconstitutional and ordered his release.

On August 25, 2009, Interpol issued a Red-Corner Notice against Mr. Saeed, in response to India’s request for extradition. Mr. Saeed was quickly placed yet again under house arrest, a few days after the issuance of the notice, and charged with inciting public sentiments. He was also charged with raising funds to wage ‘jihad’--an offence under local Anti-Terrorism laws. On October 12, the Lahore High Court quashed all cases against Mr. Saaed and set him free. The court also declared that Jama’at-ud-Da’wah, the Lashkar front-organisation, was not a banned organisation, and could operate freely in Pakistan.

Mr. Saeed is quite used to rapid detentions and brief stints under house arrest, followed by equally rapid release orders from the courts. After the July 2006 Mumbai train bombings, Mr. Saeed was kept under house arrest and released a month later, on order by the Lahore High Court. He was re-arrested on the day of his release — and set free again a month and half later in October 2006, after yet another order by the Lahore High Court.

The criticism of Pakistan is that at no point has the government treated Mr. Saeed like an accused of a major crime. The government has sheltered him by placing him under house arrest, composing only weak charges, and never adducing enough evidence to clinch a conviction.

As the saga of Hafiz Saeed continues, in Islamabad on November 25, Judge Malik Mohammed Akram Awan presided over an ‘anti-terror’ court. He framed charges against seven men, allegedly members of Lashkar-e-Taiba, including Zaki-ur-Rehman the operations commander. They were charged under the Anti-Terrorism Act for suspected involvement in the Mumbai attacks.

This trial, closed to public and press, has been widely critiqued. It follows the familiar pattern of high-level Lashkar operatives being shielded by the State. Newspaper reports on investigation dossiers submitted by Pakistan to the Prime Minister of India indicate no evidence has been presented linking high level Lashkar commanders to the attacks. Only low-level Lashkar cadres have been implicated. Even evidence of movement of funds concerns low-ranking cadres — no evidence is offered on the source of those funds. Essentially the prosecution’s case will never net upper-level Lashkar decision makers.

Pakistan’s disingenuous prosecution of terror suspects hampers their own and India’s efforts at dismantling terrorist operations. It also weakens the trust that the international community places in the multilateral dispute resolution mechanism called the United Nations, and the principles and practice of International Law. A basic principal of international law that has evolved over the decades is that of “aut dedere aut judicare” --the duty to extradite or prosecute accused offenders.

Extradition is the process by which a person charged with or convicted of a crime under the laws of one state is arrested in another state and returned to the former state for trial or punishment. Usually extradition is facilitated through bilateral treaties. In the absence of such treaties, and in a bid to deter use of force, this basic principle of law is now universally enforceable — the accused must either be extradited to the victim country ( in this case, India), or prosecute them in the host country (in this case, Pakistan). This customary practice is codified in all International Conventions and Treaties that deal with terrorism of any kind.

For instance, the Hague Convention for the Suppression of Unlawful Seizure of Aircraft 1970, which deals with hijacking of aircrafts by terrorists, makes this an extraditable offence. The Hague Convention states clearly that should the host state not extradite an offender, then that state is obliged, without exception whatsoever and whether or not the offence was committed in its territory, to submit the case to its competent authorities for prosecution.

Similarly, the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents 1973, the International Convention against the Taking of Hostages1979, The Convention on the Physical Protection of Nuclear Materials 1979, International Convention for the Suppression of Terrorist Bombings 1997, International Convention for the Suppression of the Financing of Terrorism1999, and the most recent Draft Comprehensive Convention on Terrorism that is still being finalized all have extensive provisions that make these various actions by terrorists internationally extraditable offences, and failing extradition, domestically prosecutable ones.

The intention behind all such provisions is to retain the trust of the victim states in the state which hosts the accused. That trust can only be maintained if the prosecution of such accused is competent, honest and comprehensive. It is important for all countries to maintain such trust, since this is the only means of ensuring that nation states do not resort to use of force, in retaliation to acts of terrorism.

Every multilateral international treaty that is painstakingly negotiated by parties comprising nation states is based on the premise that there is a better, saner and more just option to the use of force--and that is the courts of either the host or the victim state. When the investigating authorities and the prosecution services of the host state refuse to adduce available evidence to enable conviction of these accused, then they weaken that premise.

It is also imperative for Pakistan to allow the prosecution of upper-level Lashkar management. This would vindicate their stance that they as a State are not involved in attacks on India, support their assertion that these acts are committed by independent organizations, and absolve Pakistan of their potential responsibility of state-support to terrorism, an offence under International Law. The International Law Commission is a body established by the U.N. General Assembly to make recommendations for the codification of international law. It describes when conduct of private parties is attributed to states in its Draft Articles on Responsibility of States for Internationally Wrongful Acts. Article 8 provides that: “[T]he conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.”

Clearly the lower-level Lashkar operatives indicted were acting on the instructions of higher echelons. Now is the time for Pakistan to show the international community that that those responsible were high level organization commanders — and not the host state. The only way to do this is to ensure the able prosecution of senior Lashkar operatives, in a fair trial with all the necessary and available evidence being adduced and those responsible being charged and convicted.

Shortly after the Mumbai attacks, amid heavy criticism from the international community, Pakistan represented to the Security Council on 9 December, 2008 that amongst other anti-terrorism measures, it would proscribe the Jammat-ud-Dawa. This it has not done, and must do.

In the past the U.N. Security Council has imposed sanctions against Sudan and Libya for sponsoring terrorism. In both those cases, the might of United States ‘diplomacy’ was at work. In this case, the United States, which has declared Lashkar and its front organizations as terrorist groups, will not support such a move for reasons located in international real-politik and not international law. Fortunately, Pakistan is not Sudan or Libya. Its courts have a rich tradition of independence, and jurisprudential excellence. This increases disappointment in India that Pakistan’s judges are not provided with evidence that would enable them to render an accurate verdict.

( Menaka Guruswamy practices law at the Supreme Court of India.)

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