Published in the 26 May 2008 issue of the Daily Times
http://www.dailytimes.com.pk/default.asp?page=2008%5C05%5C26%5Cstory_26-5-2008_pg3_4
Taimur Malik
Al Qaeda is at best a non-state actor in the eyes of international law and therefore cannot be equated with the involvement of a third state, as was the case in the Rafik Hariri situationThe Federal Ministers for Law and Foreign Affairs announced last Thursday that the government fully intends to request the UN Secretary General to establish a UN Commission to investigate the assassination of Benazir Bhutto on December 27, 2007.
The PPP’s logic to request the UN is seriously flawed and needs to be debated and reconsidered, as has been argued by Ejaz Haider in these pages in his recent discussion on the matter. (“UN and PPP’s (il)logic”, Daily Times, May 23)
The latest argument for recourse to a UN Commission, that Al Qaeda was perhaps involved in the Bhutto assassination does not stand the test of international law jurisprudence and state practice. If the alleged involvement of a non-state actor, such as Al Qaeda, is to determine the UN’s involvement in investigating an offence, then we should also brace ourselves for a number of UN-led international investigations into incidents across the world with international investigators demanding access to Pakistani territory and nationals on a regular basis.
Al Qaeda is at best a non-state actor in the eyes of international law and therefore cannot be equated with the involvement of a third state, as was the case in the Rafik Hariri situation. A difference in the treatment of Al Qaeda will also involve a change in the treatment of detained Al Qaeda members and the lawful protections available to them etc. The world is not ready for this as yet and we should not be the ones initiating state practice in this respect.
Moreover, the PPP leadership is said to have requested the Indian Foreign Minister to support Pakistan’s request to the UN. It is baffling that the government should make such a request to a country with which it is normalising precisely because it has had inimical relations with it. I hope the PPP is not thinking that India’s support will internationalise the matter and make it a case fit for international investigation. Neither should we for a moment consider that India will allow UN investigators access to its territory, facilities and officials, if required.
Furthermore, the assumption that Pakistan can dictate the ‘terms of reference’ for the UN Commission is flawed, and the recent statement of UN deputy spokeswoman Marie Okabe that “when the Secretary General receives the letter, we expect that he will refer it to the Security Council” is in line with the Secretary General’s powers under the UN Charter and an indication that the UNSC will be the final deciding body in this respect.
UNSC Resolution 1595 (2005) relating to the Hariri incident, setting out the terms of reference for the Commission, states that it will “enjoy…access to all sites and facilities that the Commission deems relevant to the inquiry”. Any move to establish a UN Commission will entail agreement to such terms and will not be in the security and other interests of Pakistan.
A request to the UN for establishing an investigation commission will also set a dangerous precedent, not just for Pakistan, but for the world community at large. The Rafik Hariri Commission has already created a precedent for Pakistan. If the profile of the victims or the magnitude of an unfortunate incident is to dictate UN involvement, it will be very difficult to decide tomorrow whether a specific incident deserves a UN-mandated international probe. Moreover, because the UN itself cannot execute any of its resolutions, including those begot under chapter seven, it should be clear that such a precedent will be unevenly used by stronger parties against weaker states whenever such a need arose.
Moreover, such a request will empower the UNSC to unilaterally announce international investigations into domestic acts of terrorism, specifically in countries like Pakistan. How will the government react then? And has the government conceived a strategy to thwart any such uncalled for future interventions as a result of the state’s admission of its inability to properly investigate and prosecute at this time?
Therefore, in the absence of an international framework such as a multilateral treaty governing the establishment and working of international independent commissions for undertaking investigations into incidents of a domestic nature, such a request to the UN should be avoided at all costs.
Furthermore, the letter of request to the UN will inevitably have to cite reasons for the request which will include issues such as lack of faith in domestic investigation agencies, the perceived inability of Pakistani law enforcement agencies to adequately investigate the incident, and lack of confidence in the judicial system to prosecute and convict any identified suspects.
While it cannot be predicted whether the Commission will achieve any results acceptable to the PPP and the public, one thing can be said with reasonable accuracy — Pakistan’s ability to fight militancy and extremism on its own will become more doubtful and whatever the lawyers and the civil society may have achieved in terms of highlighting the country as an enlightened nation will be lost.
The presence of the UN Commission in Pakistan will not be short-lived. The mandate of the Commission is likely to be extended many times before it can deliver according to its terms of reference.
The PPP should instead strengthen local law enforcement agencies; seek international cooperation for the same if necessary; appoint its own people to investigate the December 27 tragedy, and deliver on its promise to reform and strengthen the judiciary in the larger national interest.