Terrorism: Denying responsibility on the basis of statelessness

The recent terrorist attack in Mumbai, India saw many innocent people killed and accusing fingers pointed at Pakistan on the basis that the only terrorist apprehended had a link with Pakistan. US intelligence also claims that former Pakistani military officers trained the terrorists involved. The Pakistani Prime Minister appeared on Larry King Live denying the allegations and claiming that the perpetrators of the terrorist act were stateless actors. By making this claim, the Pakistani Prime Minister avoids taking any responsibility in regard to the attack, either in the form of Pakistan being found to have breached its international obligations, or having to pay compensation to the victims and families of victims of the attack, and being viewed once again by the international community as a terrorist State, a reputation which Pakistan is vehemently fighting against by courting the United States. The denial is a familiar response, as States generally deny any association with terrorists, even when such association is obvious. It also places the burden on the international community to bring the perpetrators to justice.

The international community is seriously combating transnational terrorism, although one must wonder about how hard they are doing so, considering that a Comprehensive Convention on Terrorism has been on the negotiating table for years and agreement is yet to be reached on the definition of terrorism. The questions that now arise are as follows: to what extent can a State deny responsibility for terrorist attacks hatched within its territory? Secondly, how is statelessness defined, and to what extent does that definition allow denial of responsibility, and a laissez faire attitude towards combating terrorism?

In the wake of September 11, 2001, reference was made to terrorists operating independently of States, and to ‘non-state actors’. Non-state actors, it is claimed, have no connection to States; in other words, they are not financed, trained, or employed by States to perpetrate terrorist acts.  To refer to terrorists as stateless actors implies that no State can be blamed for the acts of these individuals, and no State should bear responsibility or be pressured to bring perpetrators of the atrocities to justice. Clearly the claim of statelessness can only embolden terrorists to carry out their gruesome acts across nations, while forming international alliances and organisations which appear to be beyond State jurisdictions. 

An international convention defining statelessness is the 1954 Convention Relating to the Status of Stateless Persons. Article 1 defines a stateless person as ‘a person who is not considered as a national by any State under the operation of its law.’ This definition, when the idea of stateless terrorism is considered, raises a few issues. States are allowed to deny nationality, and of course one general ground for revocation of citizenship is being found criminally liable under the laws of the State of nationality of the person concerned. Thus Pakistan may deny the perpetrators of the Mumbai attacks nationality on the basis of Pakistani law, and even where no such laws exist, it is quite easy for a State to pass such laws as quickly as possible, and make them apply retrospectively. The State can thus deny responsibility for the actions of its ‘citizens’.

But should a State be allowed to deny responsibility on the basis of statelessness? Provisions of the ILC’s Draft Article on the Responsibility of States for Wrongful Acts 2001 (generally accepted as customary international law on State responsibility) allow the invocation of the responsibility of States for their internationally wrongful acts when stipulated conditions are satisfied. Since it is generally accepted that terrorism is an internationally wrongful act, it is possible to impute responsibility on a State for conduct amounting to terrorism. The two conditions are as follows: the conduct in question must be attributable to the State under international law, and that conduct must constitute a breach of an international obligation on the part of that State.

The major hurdle is that the conduct of the terrorists must be attributable to the State. International law does not permit States to bear responsibility for the acts of private persons. However, Article 8 allows State responsibility to be invoked for the conduct of private persons where those persons were in fact acting on behalf of the State; in other words, a factual relationship between the private person(s) and the State must be established. Any evidence of acting on the instructions of the State, or under the direction or control of the State would be sufficient. In the Military and Paramilitary Activities in and against Nicaragua (1986) case, the ICJ held that direction or control means ‘effective control’, mere evidence of support and dependence (which may include supply of arms) is inconclusive. Thus the State, following the Nicaragua case, may be responsible for its own conduct, but the actual act of terrorism may not be attributable.

However, there are exceptions to Article 11. A State may be responsible where the State acknowledges or adopts the conduct as its own. Such adoption could be express or implied from the conduct of the State. There are a few cases where States have adopted the conduct of terrorists (for example, US Diplomatic and Consular Staff in Tehran (US v Iran) 1980 where the government of Iran failed to take any steps to bring the conduct to an end, and where the government eventually issued a decree supporting and continuing the situation), but with the international community appearing to be in concert in combating terrorism, States generally will be unwilling to openly adopt such conduct.

On the condition that conduct must constitute a breach of an international obligation of the State, a breach occurs where a State fails to act in conformity with an existing obligation, regardless of the source of that obligation (Article 12). Where the conduct is prohibited by an international convention, the State must be a signatory to that Convention for obligations under that Convention to apply, except where that obligation arises from a jus cogens rule which, arguably, States must obey. Therefore, to establish a breach, recourse will be had to primary rules imposing obligations on States under international law.

Two international conventions may be relevant to the Mumbai attacks: The 1997 Convention for the Suppression of Terrorist Bombings and the 1979 Convention on Taking of Hostages. The 1979 Convention on Taking Hostages makes the taking of hostages an act of international terrorism. Article 1 further provides that ‘Any person who seizes or detains and threatens to kill, to injure or to continue to detain another person … in order to compel a third party, namely, a State, an international intergovernmental organization, a natural or juridical person, or a group of persons, to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage commits the offence of taking hostages … within the meaning of this convention.’ Article 1(2) provides that those who participate as an accomplice in hostage-taking also commit an offence under the Convention. If the conduct of the Mumbai terrorists is found to amount to hostage taking under the convention, then an offence would have been committed.  Pakistan would have breached its obligation if it was directly involved in the act of hostage-taking, and perhaps a breach of international obligation would also have occurred if it is established that Pakistan supplied the necessary weapons and intelligence to the terrorists.

Assuming that is not the case, Article 4 makes it an obligation on the part of contracting States to co-operate in preventing the offence of hostage-taking. In that regard, States are to take ‘all practicable measures to prevent preparations in their respective territories for the commission of those offences within or outside their territories’. If the allegation that the terrorists trained in Pakistan with the knowledge of the Pakistani government, and that the government failed to take action to prevent such training is established, then Pakistan would have breached its international obligation.

In addition to breach of obligation through direct or indirect involvement in hostage taking, Article 2 of the 1997 International Convention for the Suppression of Terrorist Bombings makes it an offence for any person to unlawfully and intentionally deliver, place, discharge or detonate an explosive or other lethal device in, into or against a place of public use, a State or government facility, a public transportation system or an infrastructure facility with the intent to cause death, serious injuries or economic loss. An attempt to commit such offences also amounts to an offence under Article 2(2). Article 3 further makes it an offence to participate as an accomplice, or to organise or direct others to commit the offence. It is thus established that the conduct of the terrorists in Mumbai is an offence, and if successfully attributed to Pakistan, would amount to a breach of an international obligation.

With regard to the issue of statelessness, both Conventions make it an obligation for contracting States to establish jurisdiction where the offence is committed by its nationals, against its nationals, or by stateless persons within its territory, except in the case of the Convention on Hostage-Taking, where it appears a State may refuse to establish jurisdiction in the case of a stateless person when it considers appropriate (Article 5). Thus, provided there is sufficient evidence, Pakistan may have breached its obligations under international law, and responsibility may be imputed on Pakistan for an internationally wrongful act provided the two conditions are satisfied.

These conventions do not allow Pakistan to deny responsibility on the basis of statelessness, but as stated previously, the Convention on Hostage-Taking allows Pakistan to refuse establishment of jurisdiction. If indeed the terrorists are found to have trained in Pakistan with the knowledge of the Pakistani government – and it should be sufficient to find that intelligence was available to that government in that regard – then Pakistan will be in breach of its obligations under international law, regardless of the terrorists’ statelessness. A finding that the perpetrators are/were residents of Pakistan is enough. Even the definition of statelessness considered above does not support Pakistan’s assertion. States should not be allowed to avoid responsibility by appealing to pop-legal rhetoric.