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.