A free pass for global militants

Published July 26, 2014
The writer is former caretaker federal law minister and an international law expert.
The writer is former caretaker federal law minister and an international law expert.

TODAY’S global terrorist knows how to disguise himself well. It is thus often difficult to spot him while he is moving from one country to another. He may be masquerading as a student, a preacher or even a professional. His ideological moorings are almost impossible to detect. While committing a terrorist act in one jurisdiction, he uses subterfuge to move undetected to another.

Critically, he can cherry-pick a jurisdiction where there’s sufficient lag in the laws to allow him temporary or even permanent refuge. It is then important to note that whether a militant belongs to Al Qaeda or Taliban or other non-state groups with global footprints, he retains the option of choosing a suitable jurisdiction to temporarily flee to or to permanently reside in.

This is because the laws to track and apprehend terrorists vary widely from one country to another despite the UN Security Council’s efforts in recent years to develop uniformity in laws applicable to militants across different jurisdictions.

For various reasons, such efforts have thus far not led to any considerable success. For instance, UNSC Resolution 1373 that creates substantive provisions against militants crucially does not authorise creating a list of global terrorists. The polarised debate about an appropriate definition of a terrorist prevents the emergence of any global consensus over creating such a list.


The lack of harmony in counterterrorism laws thwarts effective cooperation between states.


Nevertheless, Resolution 1373 obligates all UN member states to develop a legal framework for countering terrorism and adopting concomitant administrative measures. But while implementing measures mandated by the resolution, member states do not have any model law at hand which when enacted will ensure uniformity of treatment to militants in their respective jurisdictions.

Even ascertaining the precise nature of offences under the language of Resolution 1373 has been a challenging exercise. A few years back, I was a member of the UN Experts Group that met in South Africa to debate the specific instances of criminalisation envisaged by Resolution 1373. The participants were clearly split on its language. This is just one example to demonstrate that if the UN Experts Group itself had difficulty in evolving a consensus about what specific acts are to be criminalised under Resolution 1373, imagine the diversity in laws enacted by individual states on their own to implement it. Crucially, it is this diversity that terrorists continue to cash in on.

The lack of harmony in counterterrorism laws across various jurisdictions also thwarts effective cooperation between two states, notwithstanding their political desire to cooperate. For example, one state may not have criminalised a certain level of incitement to constitute an offence while the other may have, which could prevent extradition or even evidence collection.

Moreover, terrorism today has a transnational character. Militant groups typically conceive the terrorist plot in country A, receive support from their cells in country B and execute the act in country C which may involve citizens of countries D and E. Given such linkages, it is simply not possible for one country to successfully prosecute the terrorist offence in its entirety unless it receives cooperation from the others. A case in point is the trial of the Mumbai attacks.

To ensure such cooperation, a new legal regime has evolved in the last two decades under the rubric of ‘Mutual Legal Assistance’ (MLA), particularly through multilateral conventions and bilateral treaties. In this context, the UN Convention against Transnational Organised Crime (UNCTOC) contains the first comprehensive formulation of MLA in its Article 18. MLA provisions have also been incorporated in Article 46 of the UN Convention against Corruption (UNCAC). As Pakistan’s delegate during the UNCAC’s negotiations, I led the G-77 position to add further substance to MLA provisions in the convention, which are currently considered as one of the most comprehensive formulations on MLA in international law.

Despite these MLA provisions, some member states, particularly developing countries where ironically terrorists thrive the most, have yet to upgrade their MLA legislation. In contrast, the European Union has a much more vibrant MLA framework with Brussels now permitting a centralised mechanism for law-enforcement assistance among the EU states through a single window.

Pakistan, despite being a party to the UNCTOC and UNCAC, lacks any effective legislation for MLA, as do Afghanistan and India. Hence, there are no effective legal mechanisms to investigate transnational terrorism at the regional level, which has political costs of its own. India will thus continue to accuse Pakistan of infiltration and Pakistan will continue to blame Afghanistan or vice versa for the cross-border movement of non-state actors.

Pakistan and Afghanistan have not cooperated even once in investigating a terrorist or prosecuting him in either jurisdiction. This is strange because both sides of the Durand Line contain the largest concentrations of notified associates of Al Qaeda, Taliban and other terrorist non-state actors. Besides the lack of political will, this exposes the inadequacy in the MLA regimes of the two neighbours.

It is extraordinary that countries suspected of housing the largest number of global terrorists have the worst and most confusing counterterrorism frameworks. Yemen, for instance, lacks any effective counterterrorism legislation. Afghanistan has not taken any strides in upgrading its dilapidated criminal justice system. There have hardly been any requests for legal assistance received from Afghanistan by Pakistan’s interior ministry. Likewise, Pakistan has not sought Kabul’s cooperation in investigation of terror suspects, evidence collection etc.

What is urgently needed, at least regionally, are serious, formal interactions between law enforcement bodies of all the states in the region that must all institute mutually supportive, uniform legal structures. They should also exchange notes while strengthening their domestic counterterrorism regimes.

Lamentably, Pakistan’s own Anti Terrorism Act of 1997 does not have any provision for international cooperation or for MLA in the manner provided for in the UNCTOC and UNCAC. Even worse, the Protection of Pakistan Act 2014 does not contain even a single provision on international legal cooperation, illustrating the inexplicable current lack of emphasis on developing Pakistan’s counterterrorism regime in a regional context.

The writer is former caretaker federal law minister and an international law expert.

ahmersoofi@hotmail.com

Published in Dawn, July 26th, 2014

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