On Tuesday, September 23, Amartya Sen, Nobel Laureate and Lamont University Professor at Harvard, spoke at the Law School about the "idea of justice," a topic developed further in his forthcoming book. The lecture was delayed slightly since the speech had to be moved to a venue large enough to accommodate the enormous crowd that had turned up to hear Professor Sen.
In welcoming Professor Sen to the Law School, Dean Kagan noted that his first name in Sanskrit means immortal and said that Professor Sen's many contributions to economics, development theory and political philosophy had indeed ensured his immortality in the academic world. Describing him as an "intellectual giant of the last century," Dean Kagan highlighted the substantive impact of Professor Sen's work on policy making in countries across the world and institutions like the International Monetary Fund and the United Nations. In particular, she stated that his work with the UN had resulted in the commencement of the publication of the annual Human Development Report.
Professor Sen began by outlining two approaches that Enlightenment thinkers had adopted towards understanding justice. The first approach, which he called "Transcendental Justice," adopted by classical writers like Hobbes and Rousseau and developed by contemporary thinkers like Rawls, Nozick and Dworkin, focuses on distinguishing between the just and the unjust and creating institutions that would ensure a just society. The second approach, which he characterized as a comparative approach to justice, espoused by thinkers as diverse as Adam Smith, Jeremy Bentham, Condorcet, Mary Wollstonecraft and Karl Marx focuses on the actual realization of justice in society by evaluating social injustices in a comparative setting. The primary concern of the "transcendentalists" is the creation of institutions that would ensure a perfectly just society, whereas that of the "comparativists" is to ensure improvements in society by removing specific injustices. For the comparativists, the idea of justice is not about achieving a perfectly just society, but to produce as just a society as is possible given the circumstances. Noting the strong bias in contemporary political philosophy towards "transcendental justice," Sen said that his book attempts to develop the idea of comparative justice.
Borrowing from an ancient Sanskrit text, Sen explained the contrast between the two approaches to justice as the difference between "niti" and "nyaya." "Niti," translated as "organizational propriety and correctness," refers to the institutions that should be created in order to have a just society. "Nyaya" on the other hand, translated as "a comprehensive idea of realized justice," is inescapably linked to the world and the lives of the people. Sen stated that the idea of justice in Holy Roman Emperor Ferdinand I's claim that justice ought to be done even though the world may perish, is that of "niti." However, justice done at the expense of a catastrophe in which the world may perish does not result in "nyaya."
Sen stressed that his idea of justice is not merely consequentialist. In fact, his idea of justice encompasses a comprehensive way of looking at both processes and outcomes. He illustrated this by referencing the famous debate between Krishna and Arjuna in the Bhagvad Gita, a holy Hindu text. Arjuna, a renowned warrior, hesitates on the brink of battle even though he is on the side of good and justice because he does not want to kill his cousins who are on the other side. Krishna encourages Arjuna to do his duty regardless of the consequences. This debate is often characterized as a debate between the deontological and consequentialist positions with Krishna representing the former and Arjuna the latter. However, Sen argued that Arjuna is not a mere consequentialist, in that he is not just concerned about the fact that many people will be killed in the battle that he is hesitating to engage in but also that he will be killing people for whom he has some affection.
Shifting focus to theories of global justice, Sen stated that the kind of comparative approach that he was articulating for achieving global justice would fail to interest Hobbesian institutionalists who believe that we need a sovereign global state before we can talk about issues of global justice. Transcendental justice philosophers like Thomas Nagel and John Rawls would respond to such a claim by saying that even in the absence of a sovereign global state we can nonetheless still talk about what global justice will involve.
But the content of such an idea of global justice would be limited to general principles of humanitarian behavior or the institutions necessary for the creation of a perfectly just society. However, Sen argued that when people across the world agitate for global justice, they are neither clamoring for minimal humanitarianism nor for a perfectly just society. They are seeking the removal of some outrageously unjust facts or rules in the national or global society. For instance, those seeking reform of patent laws to make drugs easily available to the poor and the needy are targeting the injustice of people dying for want of necessary medications while drug companies make huge profits. Their action is calibrated to achieve a narrow goal. It is not anticipated that the removal of this injustice will result in the creation of a perfectly just society.
Responding to questions, Sen accepted that even adopting a comparative theory of justice would involve making choices and consequently would require consensus on those choices. This would in turn require a judgment as to what the definition of consensus is. He argued, however, that it is far easier to arrive at a consensus on a particular social issue rather than issues of what would constitute a perfectly just society, a topic for which inquiry is neither useful nor necessary. Sen concluded by articulating that even the nature of institutions is not independent of the behavioral norms of society and that therefore even the Rawlsian/transcendentalist inquiry is not completely independent of the comparative approach to justice.
Sunday, December 21, 2008
Friday, December 12, 2008
Legal and Economic issues on the terror incidents
The key question being posed in legal and financial circles relates to the extent of insurance coverage for loss caused by terror attacks, and also the related liability of various state and private actors involved. In a column in Rediff Money, Kumkum Sen highlights possible issues on liabilities, both civil and criminal. As the columnist notes, the chances of successfully bringing about any action for such an act of terrorism seem low:
Pondering on these lines, can a case of criminal liability be made out against the corporations? Apparently not. To lump these tragedies in the same class as Bhopal Gas and Uphar cases would be patently unfair particularly as the hotel personnel rallied, and many of them at the cost of their lives. But some questions will persist, as the storm abates.How could the hotel management be ignorant of the hoarding of ammunition and arms -- enough to sustain the attack against police and the armed forces; this could not happen overnight .Where were they stored and who was the insider(s) conniving, and if such connivance can be established, which are the heads that will roll? Can the corporations be prosecuted, and the directors be charged as being vicariously liable?In fact, the entire issue of criminal liability of the corporations has gained complexity with awareness about social responsibilities, environmental issues, quality issues and accountability of the company to its stakeholders and public at large, which is now integral to corporate governance.Even with civil liability, such as for negligence, there are bound to be issues pertaining to what the duty of care owed in such circumstances would be. The question that remains is whether the Government is likely to initiate laws to bring about any changes to these aspects (both from a substantive law as well as procedural standpoints), apart from legislative changes that could emerge in relation to the overall manner in which terrorism is to be tackled in the country.From a business and economic standpoint, the recent events in Mumbai will surely have an adverse impact. Reports indicate that business travel to India has already witnessed large-scale cancellations owing to the fear factor, as most of such travel tends to take place to Mumbai, with a large number of such business travelers usually availing of the hospitality of the Taj and Oberoi Trident hotels.There are questions from an investment standpoint as well. Terrorism is a major risk factor for investors in securities markets. On the one hand, there are reports (see Economic Times) that the economic slowdown over the last few months has already seen investors withdrawing from emerging markets such as India, and hence the current attacks may not see much of an impact. But, others are not so sanguine (as the Financial Express reports) fearing that foreign investors will further pull out from the Indian markets until normalcy is restored. In the end, it all depends on the measures that the Government puts in place to improve the security situation, and whether the Indian citizens as well as the international community perceive that to be adequate.
Pondering on these lines, can a case of criminal liability be made out against the corporations? Apparently not. To lump these tragedies in the same class as Bhopal Gas and Uphar cases would be patently unfair particularly as the hotel personnel rallied, and many of them at the cost of their lives. But some questions will persist, as the storm abates.How could the hotel management be ignorant of the hoarding of ammunition and arms -- enough to sustain the attack against police and the armed forces; this could not happen overnight .Where were they stored and who was the insider(s) conniving, and if such connivance can be established, which are the heads that will roll? Can the corporations be prosecuted, and the directors be charged as being vicariously liable?In fact, the entire issue of criminal liability of the corporations has gained complexity with awareness about social responsibilities, environmental issues, quality issues and accountability of the company to its stakeholders and public at large, which is now integral to corporate governance.Even with civil liability, such as for negligence, there are bound to be issues pertaining to what the duty of care owed in such circumstances would be. The question that remains is whether the Government is likely to initiate laws to bring about any changes to these aspects (both from a substantive law as well as procedural standpoints), apart from legislative changes that could emerge in relation to the overall manner in which terrorism is to be tackled in the country.From a business and economic standpoint, the recent events in Mumbai will surely have an adverse impact. Reports indicate that business travel to India has already witnessed large-scale cancellations owing to the fear factor, as most of such travel tends to take place to Mumbai, with a large number of such business travelers usually availing of the hospitality of the Taj and Oberoi Trident hotels.There are questions from an investment standpoint as well. Terrorism is a major risk factor for investors in securities markets. On the one hand, there are reports (see Economic Times) that the economic slowdown over the last few months has already seen investors withdrawing from emerging markets such as India, and hence the current attacks may not see much of an impact. But, others are not so sanguine (as the Financial Express reports) fearing that foreign investors will further pull out from the Indian markets until normalcy is restored. In the end, it all depends on the measures that the Government puts in place to improve the security situation, and whether the Indian citizens as well as the international community perceive that to be adequate.
Responsibility on whom? Which law applies?
The tragic events in Mumbai over the past few days have once again soured relations between Pakistan and India. The strain came in because of allegations made by India that ‘elements’ in Pakistan are responsible for the attack – allegations hotly disputed by Pakistan. Two major legal issues arise in this connection:
(1) As a matter of evidence, is there enough to argue that elements in Pakistan are responsible?
(2) As a matter of international law, can responsibility be attributed to Pakistan? If so, under what circumstances?
I will look at these two issues in depth. First, it is essential to highlight the relevant facts which have emerged so far. Three broad classifications of ‘facts’ may be seen:
Undisputed fact: Nine terrorists were killed, and one was arrested
The arrested terrorist has stated: that he is from Faridkote, Pakistan; that he is a member of the Lashkar-e-Toiba; that he was trained by an ex-army officer in a location near an army base in Pakistan; that the terrorists came to Mumbai from Karachi on a boat; that they hijacked an Indian trawler and sailed into Indian waters off the coast of Mumbai; that they finally arrived into Mumbai on dinghies.
Recoveries: The rubber dinghies have been recovered. The hijacked trawler has been recovered with the body of the captain of the trawler. From the dinghies/trawler, several items manufactured in Pakistan have been recovered (including toothpastes, matchboxes etc.) A satellite phone has been recovered from the dinghies/from the terrorists; allegedly with a few calls made to Pakistan.
One thing is clear – most of the evidence is from a statement made by the arrested terrorist. Part of that is corroborated by recoveries. Is this sufficient as a matter of law to draw a connection with Pakistan?
First, however, is a formidable difficulty – what are the standards of evidence which must be used? Are we to analyse these facts under Indian evidence laws? Or is an international standard to be used? If so, what is this standard? One helpful reformulation might be this: Are we trying to determine whether an Indian criminal Court would hold that there is a link with Pakistan? Or are we trying to determine whether an international tribunal would hold that elements within Pakistan are involved? What is the proper law of evidence in this case?
Insofar as we deal with this ‘Pakistan connection’, we must treat the matter as one of international law. An Indian Court will never be called upon to determine whether there is a link with Pakistan involved. An Indian court will be called upon to convict and sentence the arrested terrorist (and any others who may be arrested) – that is different from saying that the Indian Court will have to determine the alleged links with Pakistan. That matter must be treated as one on the international plane – the most direct and relevant connection (insofar as the question of establishing a link with Pakistan is concerned) is with international law. The proper law as such must be international law.
How does this difference matter? First, we need to consider the fact that the required standards of proof may differ. Secondly, we need to note that several sections of Indian law will be irrelevant (unless they can be shown to be part of the ‘general principles of law’). Had Indian law been applicable; we would have seen one side arguing that confessions made to police officers are inadmissible. The other side would have had to rely on special provisions in this regard (say, Section 27 of the Evidence Act which would allow parts of the confessional statement to be admitted in evidence based on subsequent discoveries such as the dinghies etc.)
But as the matter is one which is properly governed by international law, what is (are) the actual rule(s) of law governing the situation? This is where tremendous difficulty arises, which would enable Pakistan to almost always say “we have not been shown any evidence”. For the rules of evidence in international law are dependent in many circumstances on the particular tribunal which is seized of the matter. But where do you find a general statement of the law of evidence in international fact-finding? Where do we find the principle of international law which would allow us (based on the facts highlighted above) to come to the conclusion that ‘elements in Pakistan’ were involved? How does one nation provide ‘evidence’ to another nation of a certain claim it makes in a non-litigation context?
In my next post, I will try to answer some of these issues and will then turn to the possible responsibility (if any) which may be attributed to Pakistan given the available facts.
(1) As a matter of evidence, is there enough to argue that elements in Pakistan are responsible?
(2) As a matter of international law, can responsibility be attributed to Pakistan? If so, under what circumstances?
I will look at these two issues in depth. First, it is essential to highlight the relevant facts which have emerged so far. Three broad classifications of ‘facts’ may be seen:
Undisputed fact: Nine terrorists were killed, and one was arrested
The arrested terrorist has stated: that he is from Faridkote, Pakistan; that he is a member of the Lashkar-e-Toiba; that he was trained by an ex-army officer in a location near an army base in Pakistan; that the terrorists came to Mumbai from Karachi on a boat; that they hijacked an Indian trawler and sailed into Indian waters off the coast of Mumbai; that they finally arrived into Mumbai on dinghies.
Recoveries: The rubber dinghies have been recovered. The hijacked trawler has been recovered with the body of the captain of the trawler. From the dinghies/trawler, several items manufactured in Pakistan have been recovered (including toothpastes, matchboxes etc.) A satellite phone has been recovered from the dinghies/from the terrorists; allegedly with a few calls made to Pakistan.
One thing is clear – most of the evidence is from a statement made by the arrested terrorist. Part of that is corroborated by recoveries. Is this sufficient as a matter of law to draw a connection with Pakistan?
First, however, is a formidable difficulty – what are the standards of evidence which must be used? Are we to analyse these facts under Indian evidence laws? Or is an international standard to be used? If so, what is this standard? One helpful reformulation might be this: Are we trying to determine whether an Indian criminal Court would hold that there is a link with Pakistan? Or are we trying to determine whether an international tribunal would hold that elements within Pakistan are involved? What is the proper law of evidence in this case?
Insofar as we deal with this ‘Pakistan connection’, we must treat the matter as one of international law. An Indian Court will never be called upon to determine whether there is a link with Pakistan involved. An Indian court will be called upon to convict and sentence the arrested terrorist (and any others who may be arrested) – that is different from saying that the Indian Court will have to determine the alleged links with Pakistan. That matter must be treated as one on the international plane – the most direct and relevant connection (insofar as the question of establishing a link with Pakistan is concerned) is with international law. The proper law as such must be international law.
How does this difference matter? First, we need to consider the fact that the required standards of proof may differ. Secondly, we need to note that several sections of Indian law will be irrelevant (unless they can be shown to be part of the ‘general principles of law’). Had Indian law been applicable; we would have seen one side arguing that confessions made to police officers are inadmissible. The other side would have had to rely on special provisions in this regard (say, Section 27 of the Evidence Act which would allow parts of the confessional statement to be admitted in evidence based on subsequent discoveries such as the dinghies etc.)
But as the matter is one which is properly governed by international law, what is (are) the actual rule(s) of law governing the situation? This is where tremendous difficulty arises, which would enable Pakistan to almost always say “we have not been shown any evidence”. For the rules of evidence in international law are dependent in many circumstances on the particular tribunal which is seized of the matter. But where do you find a general statement of the law of evidence in international fact-finding? Where do we find the principle of international law which would allow us (based on the facts highlighted above) to come to the conclusion that ‘elements in Pakistan’ were involved? How does one nation provide ‘evidence’ to another nation of a certain claim it makes in a non-litigation context?
In my next post, I will try to answer some of these issues and will then turn to the possible responsibility (if any) which may be attributed to Pakistan given the available facts.
Mumbai Attacks: Who is responsible? The debate continues
Questions of proof in international law are notoriously difficult. First and foremost, one needs to clarify the standard of proof involved. In order to establish a fact as true, must it be proved on a balance of probabilities, or must it be proved beyond reasonable doubt? Typically, the former pertains to civil cases and the latter to criminal cases.
The International Court of Justice (ICJ) decision in the Oil Platforms case (USA v. Iran) is helpful in understanding how questions of fact are treated under international law. The issue in that case was whether certain missile attacks in the Sea Isle City could be attributed to Iran. In that case, the Court, in describing certain evidence, used the phrase “highly suggestive, but not conclusive”. This suggests the application of a high standard of proof. More recently, the ICJ discussed the issue in the case between Bosnia and Serbia. The Court held that claims against a State involving exceptionally grave charges, must be proved by evidence that is, “fully conclusive”. However, this high standard was applied to the question of whether the respondent State was directly involved in genocide. On the question of whether the respondent State was responsible for “non-prevention” of genocide the court applied the standard of “proof of a high level of certainty, appropriate to the seriousness of the allegation,” a standard lower than that of “fully conclusive”. The judgment also suggests that the higher standard was applied because exceptionally gravecharges were made against a sovereign State. For a more detailed discussion of the case, see this link.
Now, insofar as the question of the link to Pakistan is concerned, it is important to note that India has not accused the State of Pakistan of being directly responsible. India’s case seems to fall more into the category of accusing Pakistan of not doing enough to prevent the attacks – in that case, the matter as to whether there is a link to elements in Pakistan must be treated as one to be decided on a balance of probabilities. And on a balance of probabilities, even on the limited facts highlighted in Part I of this note, there is enough to suggest that groups within Pakistan were responsible. (Note that this in itself does not mean that the government of Pakistan was responsible for the attacks). A detailed analysis is likely to be incomplete as the investigation progresses; and I leave it to my readers to carry this analysis out.
More important is the second aspect – for a moment let us assume that the Lashkar-e-Toiba was in fact responsible for the Mumbai attacks. Two fresh questions will then appear:
Can the acts of the Lashkar-e-Toiba be attributed to Pakistan?
If not, what responsibility will Pakistan bear in relation to the attacks?
Typically, the actions of non-state actors can be attributed to a state if the non-state actors were acting under the control of the state. What, exactly, is ‘control’? In order to answer this question, one needs to consider the effect of three important judgments – Nicaragua (ICJ), Tadic (ICTY) and Bosnia (ICJ) judgment on genocide. These judgments are discussed in detail in an article by Professor Antonio Casesse in the European Journal of International Law (“The Nicaragua and Tadic cases Revisited in Light of the ICJ judgment on Genocide in Bosnia”, Vol. 18, Issue 4, EJIL, p. 649. The article can be accessed here.
I reproduce the abstract of the article:
“In its recent Genocide judgment, the International Court of Justice discussed the question of whether the acts of genocide carried out at Srebrenica by Bosnian Serb armed forces must be attributed to the Federal Republic of Yugoslavia (FRY), as claimed by Bosnia. It applied the ‘effective control’ test set out in Nicaragua, reaching a negative conclusion. The Court also held that the broader ‘overall control’ test enunciated by the International Criminal Court for the former Yugoslavia (ICTY) in Tadi did not apply, on two grounds. First, the test had been suggested by the ICTY with respect to the question of determining whether an armed conflict was international and not with regard to the different issue of state responsibility; secondly, in any case the test would have overly broadened the scope of state responsibility. The author argues that the ICTY admittedly had to establish in Tadi whether the armed conflict in Bosnia was internal or international. However, as no rules of international humanitarian law were of assistance for such determination, the Tribunal explicitly decided to rely upon international rules on state responsibility. The ICTY thus advanced the ‘overall control’ test as a criterion generally valid for imputation of conduct of organized armed groups to a particular state. The test was based on judicial precedents and state practice. In addition, the ICTY did not exclude the applicability of the ‘effective control’ standard, stating however that it only applied for the attribution to a state of conduct by single private individuals. Judicial decisions, even subsequent to Tadi , support the view that whenever conduct of organized armed groups or military units is at stake it suffices to show that the state to which they may be linked exercises ‘overall control’ over them, in order for the conduct of those groups or units to be legally attributed to the state. Hence, any sound critique of Tadi should not suggest that it dealt with a matter different from state responsibility. It should instead be capable of showing that state and judicial practice do not corroborate that test.”
The distinction between ‘overall control’ (Tadic) and ‘effective control’ (Nicaragua) is that in the latter case, there must be proof of control by the state over the specific actions involved. Overall control can be established by showing general control and guidance – there is no need to show that the specific occurrence was controlled by the State. In this regard, also see the commentary to Article 8 of the ILC Articles in State Responsibility. In my opinion, on the facts as they stand, it is next to impossible to show effective control of the state of Pakistan over the attacks. It is also extremely difficult to show overall control. The mere fact that the intelligence agency of Pakistan had in the past aided the Lashkar-e-Toiba is not proof of the fact that the agency exercises overall control at present. Thus, the attacks themselves cannot be legally attributed to Pakistan.
Does this mean, however, that Pakistan does not bear any responsibility? No. Pakistan does bear the responsibility of not allowing its territory to be used by non-state actors against another state. It is a basic principle of international law that although a state enjoys territorial sovereignty, that sovereignty includes an obligation to prevent use of one’s territory for activities against another state. In this connection, see UN Security Council Resolution 1373.
In other words, even if Pakistan is not responsible for the attacks, it is responsible for allowing its territory to be used for the attacks. In this regard, the following passage advocating a less stringent standard of proof from the Corfu Channel case (ICJ) is relevant:
“True, the mere fact that mines were laid in Albanian waters neither involves prima facie responsibility nor does it shift the burden of proof. On the other hand, the exclusive control exercised by a State within its frontiers may make it impossible to furnish direct proof of facts which would involve its responsibility in case of a violation of international law. The State which is the victim must, in that ease, be allowed a more liberal recourse to inferences of fact and circumstantial evidence; such indirect evidence must be regarded as of especial weight when based on a series of facts, linked together and leading logically to a single conclusion.”
The allegations of India are not that Pakistan was directly involved – India is only alleging that Pakistan did not do enough to prevent its territory being used by groups such as the Lashkar-e-Toiba to carry out the attacks. Given this factor, it is sufficient if India established the link to Pakistan merely on a balance of probabilities.
Conclusion:
It may be difficult for India to prove that the state of Pakistan itself is responsible for the Mumbai attacks. In order to prove this, it appears that India will have to meet a very high standard of proof.
However, insofar as India alleges that “elements in Pakistan” (not controlled by the state of Pakistan) are involved, the standard of proof is much lower. In my opinion, even if we look only at the available facts highlighted in my earlier post, India can easily satisfy this lower burden. In this light, the statements from Pakistan that there is “not sufficient evidence” are misplaced.
This means that although Pakistan is not responsible for the attacks, it is responsible for allowing its territory to be used for the attacks. State Sovereignty includes – by necessary implication –an obligation not to allow a state’s territory to be used by non-state actors to carry out armed attacks against other states.
The International Court of Justice (ICJ) decision in the Oil Platforms case (USA v. Iran) is helpful in understanding how questions of fact are treated under international law. The issue in that case was whether certain missile attacks in the Sea Isle City could be attributed to Iran. In that case, the Court, in describing certain evidence, used the phrase “highly suggestive, but not conclusive”. This suggests the application of a high standard of proof. More recently, the ICJ discussed the issue in the case between Bosnia and Serbia. The Court held that claims against a State involving exceptionally grave charges, must be proved by evidence that is, “fully conclusive”. However, this high standard was applied to the question of whether the respondent State was directly involved in genocide. On the question of whether the respondent State was responsible for “non-prevention” of genocide the court applied the standard of “proof of a high level of certainty, appropriate to the seriousness of the allegation,” a standard lower than that of “fully conclusive”. The judgment also suggests that the higher standard was applied because exceptionally gravecharges were made against a sovereign State. For a more detailed discussion of the case, see this link.
Now, insofar as the question of the link to Pakistan is concerned, it is important to note that India has not accused the State of Pakistan of being directly responsible. India’s case seems to fall more into the category of accusing Pakistan of not doing enough to prevent the attacks – in that case, the matter as to whether there is a link to elements in Pakistan must be treated as one to be decided on a balance of probabilities. And on a balance of probabilities, even on the limited facts highlighted in Part I of this note, there is enough to suggest that groups within Pakistan were responsible. (Note that this in itself does not mean that the government of Pakistan was responsible for the attacks). A detailed analysis is likely to be incomplete as the investigation progresses; and I leave it to my readers to carry this analysis out.
More important is the second aspect – for a moment let us assume that the Lashkar-e-Toiba was in fact responsible for the Mumbai attacks. Two fresh questions will then appear:
Can the acts of the Lashkar-e-Toiba be attributed to Pakistan?
If not, what responsibility will Pakistan bear in relation to the attacks?
Typically, the actions of non-state actors can be attributed to a state if the non-state actors were acting under the control of the state. What, exactly, is ‘control’? In order to answer this question, one needs to consider the effect of three important judgments – Nicaragua (ICJ), Tadic (ICTY) and Bosnia (ICJ) judgment on genocide. These judgments are discussed in detail in an article by Professor Antonio Casesse in the European Journal of International Law (“The Nicaragua and Tadic cases Revisited in Light of the ICJ judgment on Genocide in Bosnia”, Vol. 18, Issue 4, EJIL, p. 649. The article can be accessed here.
I reproduce the abstract of the article:
“In its recent Genocide judgment, the International Court of Justice discussed the question of whether the acts of genocide carried out at Srebrenica by Bosnian Serb armed forces must be attributed to the Federal Republic of Yugoslavia (FRY), as claimed by Bosnia. It applied the ‘effective control’ test set out in Nicaragua, reaching a negative conclusion. The Court also held that the broader ‘overall control’ test enunciated by the International Criminal Court for the former Yugoslavia (ICTY) in Tadi did not apply, on two grounds. First, the test had been suggested by the ICTY with respect to the question of determining whether an armed conflict was international and not with regard to the different issue of state responsibility; secondly, in any case the test would have overly broadened the scope of state responsibility. The author argues that the ICTY admittedly had to establish in Tadi whether the armed conflict in Bosnia was internal or international. However, as no rules of international humanitarian law were of assistance for such determination, the Tribunal explicitly decided to rely upon international rules on state responsibility. The ICTY thus advanced the ‘overall control’ test as a criterion generally valid for imputation of conduct of organized armed groups to a particular state. The test was based on judicial precedents and state practice. In addition, the ICTY did not exclude the applicability of the ‘effective control’ standard, stating however that it only applied for the attribution to a state of conduct by single private individuals. Judicial decisions, even subsequent to Tadi , support the view that whenever conduct of organized armed groups or military units is at stake it suffices to show that the state to which they may be linked exercises ‘overall control’ over them, in order for the conduct of those groups or units to be legally attributed to the state. Hence, any sound critique of Tadi should not suggest that it dealt with a matter different from state responsibility. It should instead be capable of showing that state and judicial practice do not corroborate that test.”
The distinction between ‘overall control’ (Tadic) and ‘effective control’ (Nicaragua) is that in the latter case, there must be proof of control by the state over the specific actions involved. Overall control can be established by showing general control and guidance – there is no need to show that the specific occurrence was controlled by the State. In this regard, also see the commentary to Article 8 of the ILC Articles in State Responsibility. In my opinion, on the facts as they stand, it is next to impossible to show effective control of the state of Pakistan over the attacks. It is also extremely difficult to show overall control. The mere fact that the intelligence agency of Pakistan had in the past aided the Lashkar-e-Toiba is not proof of the fact that the agency exercises overall control at present. Thus, the attacks themselves cannot be legally attributed to Pakistan.
Does this mean, however, that Pakistan does not bear any responsibility? No. Pakistan does bear the responsibility of not allowing its territory to be used by non-state actors against another state. It is a basic principle of international law that although a state enjoys territorial sovereignty, that sovereignty includes an obligation to prevent use of one’s territory for activities against another state. In this connection, see UN Security Council Resolution 1373.
In other words, even if Pakistan is not responsible for the attacks, it is responsible for allowing its territory to be used for the attacks. In this regard, the following passage advocating a less stringent standard of proof from the Corfu Channel case (ICJ) is relevant:
“True, the mere fact that mines were laid in Albanian waters neither involves prima facie responsibility nor does it shift the burden of proof. On the other hand, the exclusive control exercised by a State within its frontiers may make it impossible to furnish direct proof of facts which would involve its responsibility in case of a violation of international law. The State which is the victim must, in that ease, be allowed a more liberal recourse to inferences of fact and circumstantial evidence; such indirect evidence must be regarded as of especial weight when based on a series of facts, linked together and leading logically to a single conclusion.”
The allegations of India are not that Pakistan was directly involved – India is only alleging that Pakistan did not do enough to prevent its territory being used by groups such as the Lashkar-e-Toiba to carry out the attacks. Given this factor, it is sufficient if India established the link to Pakistan merely on a balance of probabilities.
Conclusion:
It may be difficult for India to prove that the state of Pakistan itself is responsible for the Mumbai attacks. In order to prove this, it appears that India will have to meet a very high standard of proof.
However, insofar as India alleges that “elements in Pakistan” (not controlled by the state of Pakistan) are involved, the standard of proof is much lower. In my opinion, even if we look only at the available facts highlighted in my earlier post, India can easily satisfy this lower burden. In this light, the statements from Pakistan that there is “not sufficient evidence” are misplaced.
This means that although Pakistan is not responsible for the attacks, it is responsible for allowing its territory to be used for the attacks. State Sovereignty includes – by necessary implication –an obligation not to allow a state’s territory to be used by non-state actors to carry out armed attacks against other states.
Wednesday, December 10, 2008
Couldn't Agree more!
LETTER OF EDITOR OF TIMES OF INDIA TO PRIMEMINISTER
Dear Mr. Prime ministerI am a typical mouse from Mumbai. In the local train compartment which has capacity of 100 persons, I travel with 500 more mouse. Mouse at least squeak but we don't even do that.Today I heard your speech. In which you said 'NO BODY WOULD BE SPARED'. I would like to remind you that fourteen years has passed since serial bomb blast in Mumbai took place. Dawood was the main conspirator. Till today he is not caught. All our bolywood actors, our builders, our Gutka king meets him but your Government can not catch him. Reason is simple; all your ministers are hand in glove with him. If any attempt is made to catch him everybody will be exposed. Your statement 'NOBODY WOULD BE SPARED' is nothing but a cruel joke on this unfortunate people of India.Enough is enough. As such after seeing terrorist attack carried out by about a dozen young boys I realize that if same thing continues days are not away when terrorist will attack by air, destroy our nuclear reactor and there will be one more Hiroshima. We the people are left with only one mantra. Womb to Bomb to Tomb. You promised Mumbaikar Shanghai what you have given us is Jalianwala Baug.Today only your home minister resigned. What took you so long to kick out this joker? Only reason was that he was loyal to Gandhi family. Loyalty to Gandhi family is more important than blood of innocent people, isn't it?I am born and bought up in Mumbai for last fifty eight years. Believe me corruption in Maharashtra is worse than that in Bihar. Look at all the politician, Sharad Pawar, Chagan Bhujbal, Narayan Rane, Bal Thackray , Gopinath Munde, Raj Thackray, Vilasrao Deshmukh all are rolling in money. Vilasrao Deshmukh is one of the worst Chief minister I have seen. His only business is to increase the FSI every other day, make money and send it to Delhi so Congress can fight next election. Now the clown has found new way and will increase FSI for fisherman so they can build concrete house right on sea shore. Next time terrorist can comfortably live in those house , enjoy the beauty of sea and then attack the Mumbai at their will.Recently I had to purchase house in Mumbai. I met about two dozen builders. Everybody wanted about 30% in black. A common person like me knows this and with all your intelligent agency & CBI you and your finance minister are not aware of it. Where all the black money goes? To the underworld isn't it? Our politicians take help of these goondas to vacate people by force. I myself was victim of it. If you have time please come to me, I will tell you everything.If this has been land of fools, idiots then I would not have ever cared to write you this letter. Just see the tragedy, on one side we are reaching moon, people are so intelligent and on other side you politician has converted nectar into deadly poison. I am everything Hindu, Muslim, Christian, Schedule caste, OBC, Muslim OBC, Christian Schedule caste, Creamy Schedule caste only what I am not is INDIAN. You politician have raped every part of mother India by your policy of divide and rule.Take example of former president Abdul Kalam. Such a intelligent person, such a fine human being. You politician didn't even spare him. Your party along with opposition joined the hands, because politician feels they are supreme and there is no place for good person.Dear Mr Prime minister you are one of the most intelligent person, most learned person. Just wake up, be a real SARDAR. First and foremost expose all selfish politician. Ask Swiss bank to give name of all Indian account holders. Give reins of CBI to independent agency. Let them find wolf among us. There will be political upheaval but that will better than dance of death which we are witnessing every day. Just give us ambient where we can work honestly and without fear. Let there be rule of law. Everything else will be taken care of.Choice is yours Mr. Prime Minister. Do you want to be lead by one person or you want to lead the nation of 100 Crore people?Prakash B. BajajEditor Mumbai-Times of India
Dear Mr. Prime ministerI am a typical mouse from Mumbai. In the local train compartment which has capacity of 100 persons, I travel with 500 more mouse. Mouse at least squeak but we don't even do that.Today I heard your speech. In which you said 'NO BODY WOULD BE SPARED'. I would like to remind you that fourteen years has passed since serial bomb blast in Mumbai took place. Dawood was the main conspirator. Till today he is not caught. All our bolywood actors, our builders, our Gutka king meets him but your Government can not catch him. Reason is simple; all your ministers are hand in glove with him. If any attempt is made to catch him everybody will be exposed. Your statement 'NOBODY WOULD BE SPARED' is nothing but a cruel joke on this unfortunate people of India.Enough is enough. As such after seeing terrorist attack carried out by about a dozen young boys I realize that if same thing continues days are not away when terrorist will attack by air, destroy our nuclear reactor and there will be one more Hiroshima. We the people are left with only one mantra. Womb to Bomb to Tomb. You promised Mumbaikar Shanghai what you have given us is Jalianwala Baug.Today only your home minister resigned. What took you so long to kick out this joker? Only reason was that he was loyal to Gandhi family. Loyalty to Gandhi family is more important than blood of innocent people, isn't it?I am born and bought up in Mumbai for last fifty eight years. Believe me corruption in Maharashtra is worse than that in Bihar. Look at all the politician, Sharad Pawar, Chagan Bhujbal, Narayan Rane, Bal Thackray , Gopinath Munde, Raj Thackray, Vilasrao Deshmukh all are rolling in money. Vilasrao Deshmukh is one of the worst Chief minister I have seen. His only business is to increase the FSI every other day, make money and send it to Delhi so Congress can fight next election. Now the clown has found new way and will increase FSI for fisherman so they can build concrete house right on sea shore. Next time terrorist can comfortably live in those house , enjoy the beauty of sea and then attack the Mumbai at their will.Recently I had to purchase house in Mumbai. I met about two dozen builders. Everybody wanted about 30% in black. A common person like me knows this and with all your intelligent agency & CBI you and your finance minister are not aware of it. Where all the black money goes? To the underworld isn't it? Our politicians take help of these goondas to vacate people by force. I myself was victim of it. If you have time please come to me, I will tell you everything.If this has been land of fools, idiots then I would not have ever cared to write you this letter. Just see the tragedy, on one side we are reaching moon, people are so intelligent and on other side you politician has converted nectar into deadly poison. I am everything Hindu, Muslim, Christian, Schedule caste, OBC, Muslim OBC, Christian Schedule caste, Creamy Schedule caste only what I am not is INDIAN. You politician have raped every part of mother India by your policy of divide and rule.Take example of former president Abdul Kalam. Such a intelligent person, such a fine human being. You politician didn't even spare him. Your party along with opposition joined the hands, because politician feels they are supreme and there is no place for good person.Dear Mr Prime minister you are one of the most intelligent person, most learned person. Just wake up, be a real SARDAR. First and foremost expose all selfish politician. Ask Swiss bank to give name of all Indian account holders. Give reins of CBI to independent agency. Let them find wolf among us. There will be political upheaval but that will better than dance of death which we are witnessing every day. Just give us ambient where we can work honestly and without fear. Let there be rule of law. Everything else will be taken care of.Choice is yours Mr. Prime Minister. Do you want to be lead by one person or you want to lead the nation of 100 Crore people?Prakash B. BajajEditor Mumbai-Times of India
Couldn't Agree more!
LETTER OF EDITOR OF TIMES OF INDIA TO PRIMEMINISTER
Dear Mr. Prime ministerI am a typical mouse from Mumbai. In the local train compartment which has capacity of 100 persons, I travel with 500 more mouse. Mouse at least squeak but we don't even do that.Today I heard your speech. In which you said 'NO BODY WOULD BE SPARED'. I would like to remind you that fourteen years has passed since serial bomb blast in Mumbai took place. Dawood was the main conspirator. Till today he is not caught. All our bolywood actors, our builders, our Gutka king meets him but your Government can not catch him. Reason is simple; all your ministers are hand in glove with him. If any attempt is made to catch him everybody will be exposed. Your statement 'NOBODY WOULD BE SPARED' is nothing but a cruel joke on this unfortunate people of India.Enough is enough. As such after seeing terrorist attack carried out by about a dozen young boys I realize that if same thing continues days are not away when terrorist will attack by air, destroy our nuclear reactor and there will be one more Hiroshima. We the people are left with only one mantra. Womb to Bomb to Tomb. You promised Mumbaikar Shanghai what you have given us is Jalianwala Baug.Today only your home minister resigned. What took you so long to kick out this joker? Only reason was that he was loyal to Gandhi family. Loyalty to Gandhi family is more important than blood of innocent people, isn't it?I am born and bought up in Mumbai for last fifty eight years. Believe me corruption in Maharashtra is worse than that in Bihar. Look at all the politician, Sharad Pawar, Chagan Bhujbal, Narayan Rane, Bal Thackray , Gopinath Munde, Raj Thackray, Vilasrao Deshmukh all are rolling in money. Vilasrao Deshmukh is one of the worst Chief minister I have seen. His only business is to increase the FSI every other day, make money and send it to Delhi so Congress can fight next election. Now the clown has found new way and will increase FSI for fisherman so they can build concrete house right on sea shore. Next time terrorist can comfortably live in those house , enjoy the beauty of sea and then attack the Mumbai at their will.Recently I had to purchase house in Mumbai. I met about two dozen builders. Everybody wanted about 30% in black. A common person like me knows this and with all your intelligent agency & CBI you and your finance minister are not aware of it. Where all the black money goes? To the underworld isn't it? Our politicians take help of these goondas to vacate people by force. I myself was victim of it. If you have time please come to me, I will tell you everything.If this has been land of fools, idiots then I would not have ever cared to write you this letter. Just see the tragedy, on one side we are reaching moon, people are so intelligent and on other side you politician has converted nectar into deadly poison. I am everything Hindu, Muslim, Christian, Schedule caste, OBC, Muslim OBC, Christian Schedule caste, Creamy Schedule caste only what I am not is INDIAN. You politician have raped every part of mother India by your policy of divide and rule.Take example of former president Abdul Kalam. Such a intelligent person, such a fine human being. You politician didn't even spare him. Your party along with opposition joined the hands, because politician feels they are supreme and there is no place for good person.Dear Mr Prime minister you are one of the most intelligent person, most learned person. Just wake up, be a real SARDAR. First and foremost expose all selfish politician. Ask Swiss bank to give name of all Indian account holders. Give reins of CBI to independent agency. Let them find wolf among us. There will be political upheaval but that will better than dance of death which we are witnessing every day. Just give us ambient where we can work honestly and without fear. Let there be rule of law. Everything else will be taken care of.Choice is yours Mr. Prime Minister. Do you want to be lead by one person or you want to lead the nation of 100 Crore people?Prakash B. BajajEditor Mumbai-Times of India
Dear Mr. Prime ministerI am a typical mouse from Mumbai. In the local train compartment which has capacity of 100 persons, I travel with 500 more mouse. Mouse at least squeak but we don't even do that.Today I heard your speech. In which you said 'NO BODY WOULD BE SPARED'. I would like to remind you that fourteen years has passed since serial bomb blast in Mumbai took place. Dawood was the main conspirator. Till today he is not caught. All our bolywood actors, our builders, our Gutka king meets him but your Government can not catch him. Reason is simple; all your ministers are hand in glove with him. If any attempt is made to catch him everybody will be exposed. Your statement 'NOBODY WOULD BE SPARED' is nothing but a cruel joke on this unfortunate people of India.Enough is enough. As such after seeing terrorist attack carried out by about a dozen young boys I realize that if same thing continues days are not away when terrorist will attack by air, destroy our nuclear reactor and there will be one more Hiroshima. We the people are left with only one mantra. Womb to Bomb to Tomb. You promised Mumbaikar Shanghai what you have given us is Jalianwala Baug.Today only your home minister resigned. What took you so long to kick out this joker? Only reason was that he was loyal to Gandhi family. Loyalty to Gandhi family is more important than blood of innocent people, isn't it?I am born and bought up in Mumbai for last fifty eight years. Believe me corruption in Maharashtra is worse than that in Bihar. Look at all the politician, Sharad Pawar, Chagan Bhujbal, Narayan Rane, Bal Thackray , Gopinath Munde, Raj Thackray, Vilasrao Deshmukh all are rolling in money. Vilasrao Deshmukh is one of the worst Chief minister I have seen. His only business is to increase the FSI every other day, make money and send it to Delhi so Congress can fight next election. Now the clown has found new way and will increase FSI for fisherman so they can build concrete house right on sea shore. Next time terrorist can comfortably live in those house , enjoy the beauty of sea and then attack the Mumbai at their will.Recently I had to purchase house in Mumbai. I met about two dozen builders. Everybody wanted about 30% in black. A common person like me knows this and with all your intelligent agency & CBI you and your finance minister are not aware of it. Where all the black money goes? To the underworld isn't it? Our politicians take help of these goondas to vacate people by force. I myself was victim of it. If you have time please come to me, I will tell you everything.If this has been land of fools, idiots then I would not have ever cared to write you this letter. Just see the tragedy, on one side we are reaching moon, people are so intelligent and on other side you politician has converted nectar into deadly poison. I am everything Hindu, Muslim, Christian, Schedule caste, OBC, Muslim OBC, Christian Schedule caste, Creamy Schedule caste only what I am not is INDIAN. You politician have raped every part of mother India by your policy of divide and rule.Take example of former president Abdul Kalam. Such a intelligent person, such a fine human being. You politician didn't even spare him. Your party along with opposition joined the hands, because politician feels they are supreme and there is no place for good person.Dear Mr Prime minister you are one of the most intelligent person, most learned person. Just wake up, be a real SARDAR. First and foremost expose all selfish politician. Ask Swiss bank to give name of all Indian account holders. Give reins of CBI to independent agency. Let them find wolf among us. There will be political upheaval but that will better than dance of death which we are witnessing every day. Just give us ambient where we can work honestly and without fear. Let there be rule of law. Everything else will be taken care of.Choice is yours Mr. Prime Minister. Do you want to be lead by one person or you want to lead the nation of 100 Crore people?Prakash B. BajajEditor Mumbai-Times of India
Complex thoughts!
Only a thing of the past can be a thing of the future for the present is always destined to be past and the future will continue to create the past.Can someone explain me this ?
Complex thoughts!
Only a thing of the past can be a thing of the future for the present is always destined to be past and the future will continue to create the past. Can anyone explain me this?
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