International relations, as an academic discipline, is more tolerant to interchangeable terms as compared to international law, which is more particular about the use of terminology employed to elucidate a set of facts. The difference is not in erudition of knowledge, but in the fact that change of terms, changes the implications insomuch as the responsibility and liability are concerned. This gets illustrated in the use of term ‘state sponsored terrorism’ as against the term ‘state terrorism’. Whereas, the former implies principal agent sort of relationship between the state and the actual perpetrators of an act of terrorism, the latter brings in the larger role of state emanating out of its state responsibility 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 dossier to Permanent Members of the United Nations Security Council (UNSC) on 16th November, 2020. The dossier 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 accusations against India in a calculated manner by terming it as state sponsored terrorism. On the strength of overwhelming evidence of 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 gravitational role in the Security Council, which passed numerous resolutions on the subject of terrorism. Amongst others, the Security Council in its Resolution 2232/2016, reaffirmed principles of sovereignty, territorial integrity and political independence. It also condemned terrorism in all its forms and declared it to be a ‘great’ threat to international peace and security. The UNSC Resolution expressed its intentions in its various recitals and linked it to the applicable international human rights law, international conventions and protocols qua terrorism, international humanitarian law. It specifically integrated the obligations of the Resolution to UNSC Resolution 1372 of 2001 dealing with Countering Financing of Terrorism (CFT), and also to UNSC Resolution 2178 of 2014 addressing the issue of Foreign Terrorist Fighters (FTF). The UNSC Resolution 2232 of 2016 requires concrete steps to be taken by states; some of the 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 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);
Pakistan has frequently shared actionable information that helped the international community in checking the rising tide of terrorism in the past. In the instant case, Pakistan has been compelled to share information in form of a dossier with the Permanent Members of the UNSC 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. As it never favoured illegal acts and has always voiced against state sponsored terrorism, it evinced its bona fides by registering First Information Reports 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 repelled the information shared in the dossier in total disregard to its obligations under UNSC Resolution 2232 of 2016. India is in total denial of rule-based multilateral legal framework after it was not held accountable for its unilateral and illegal acts by international community at large on blatant international human rights violations and illegal annexation of the Indian Occupied Kashmir. Its impetus for disregarding UNSC Resolutions flows from its daily violation of Line of Control where it resorts to aggressive acts killing innocent citizens on the side of Azad Jammu and Kashmir (AJK).
Despite challenges to 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 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.