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.