The consistent denials by Pakistan to hand over the suspects of Mumbai terror attacks despite incriminating evidence against them, and the absence of an option of international courts for India has left the government with limited choices, top jurists say.
Pakistan has been harping on the absence of an extradition treaty with India and lack of “solid evidence” as the reasons for not handing over the terror suspects to New Delhi. India and Pakistan, both, are not members of the International Criminal Court (ICC), the Hague-based world’s first permanent court mandated to bring to justice perpetrators of crimes like terrorism and genocide when the country responsible for carrying out such trial are unwilling to do so.
In fact, Afghanistan is the only country in South Asia which is a signatory of the 108 member ICC, set-up in 2002.
The government faces a tough question of how to proceed against those behind the Mumbai attacks, but beyond its control. The shifting stance of international community on whether Pakistan should hand over the suspects to India or try them there only has also not helped matters. Former Chief Justice of India (CJI) J. S. Verma says Pakistan is taking advantage of the absence of an effective international forum to force it to stop “committing crimes against humanity.”
“Forums like International Court of Justice and War Crimes Tribunals are the only available options, but for them to come into play either both the countries have to agree for the matter to be taken there or the United Nations General Assembly would have to refer,” said Justice Verma.
A practical solution would be to get the suspects arrested in Pakistan and put them on trial for murder and conspiracy in presence of international obsevers, he said.
Senior Supreme Court lawyer Rajeev Dhawan said it has been proved beyond doubt that “Pakistan is a rogue state involved in war activities and should be legally forced to hand back Kashmiri militants operating from its soil.”
“Unlike India, Pakistan claims no sovereign right over the part of Kashmir under its control. Therefore it can be forced to hand over the militants based there, who were freed during the Kandahar plane hijack in 1999,” Dhawan said.
Those militants belong to Kashmir and in accordance with any law – national or international – can be tried in India, he said, adding that extradition looked “extremely unlikely.”