The 26/11 Mumbai Terrorist Attacks: Assessing Pakistan’s Responsibility in International Law
Indian Journal of International Law, vol. 51, no. 3 (2011), pp.321-363.
47 Pages Posted: 28 Apr 2012
Date Written: July 12, 2011
The November 2008 Mumbai Terrorist Attacks, commonly known as 26/11 constitute one of the most audacious acts of terrorism that has ever occurred in India. Those attacks had a unique dimension as they sought to especially target US, UK and Israeli nationals and interests in Mumbai. Consequently, several foreign nationals lost their lives, and the attacks assumed a true international character. Prosecutions for those responsible for the planning and execution of 26/11 have occurred in India, the United States, and are also occurring in Pakistan. References to these prosecutions are made throughout the course of the paper. Importantly, investigations by the Indian and US investigative agencies in connection with 26/11 have brought to light the role played by certain officials belonging to Pakistan’s governmental agencies in the planning of those attacks. Thus it is of great importance to assess issues of State Responsibility so that both, India and Pakistan’s legal rights and responsibilities on the international stage can be clarified. The analysis is carried out in three stages. In Part I, I consider the judgments handed down by certain Indian courts in the trial of the only surviving member of the group of ten men who executed 26/11, Mohammad Ajmal Mohammad Amir Kasab. It is India that possesses the best writ to raise any potential international claim, and it is thus imperative to closely consider India’s perception of 26/11. Part II will analyse whether 26/11 can be considered to constitute an international wrong as opposed to a breach of domestic law. Part II will study the various treaties entered into by the States of the South Asian Association for Regional Cooperation that seek to regulate terrorism, and also consider the customary law status of international terrorism with the aim of reaching conclusions whether 26/11 can said to constitute an international wrong. Part III will then deal with the issue of attribution of conduct to a State. First, 26/11 will be analysed in accordance with the laws on State Responsibility that are applicable when the wrong is committed by elements of the governmental authorities. Second, I will consider responsibility for 26/11 assuming that it was perpetrated by private actors without any State involvement. In reaching the final conclusions, this paper highlights the problems with the regulation of terrorism under international law in the context of State Responsibility, and shows that much work needs to be done to clarify and consolidate those rules.
Keywords: Transnational Terrorism, 26/11 Mumbai terror attacks, Indian legal response, Kasab case, international law, terrorist organisation, State Responsibility, SAARC Treaties on Terrorism, Customary International Law of terrorism
Suggested Citation: Suggested Citation