JURIST Contributing Editor Ali Khan of Washburn University School of Law says that an international tribunal should be formed to prosecute persons involved in the Mumbai terrorist attacks in order to avoid the politically unworkable alternatives of retaliatory surgical strikes and the extradition of Pakistani militants to India…

Although a war between India and Pakistan is unlikely in the near future, both nations are exchanging muted threats of war veiled in the right of self-defense. Rumors abound that India is considering surgical strikes on terrorist hideouts in Pakistan to send a strong message to anti-India militants and to warn Pakistani intelligence agencies that India would no longer accept terrorist attacks on its soil. India has also asked Pakistan to extradite the top leaders of Lashkar-i-Taiba and Jammat- ud- Da'wah, the militant organizations allegedly involved in the planning of the Mumbai attacks. Both courses of action are unacceptable to Pakistan. The ensuing deadlock threatens the peace and security of the region and will further complicate relations between the two nuclear-armed neighbors.

To break the deadlock and to avoid war, I propose that an international tribunal be formed to prosecute persons involved in Mumbai attacks. The idea of an international tribunal makes sense because the other two options, surgical strikes and the extradition of militants to India, cannot work and may even aggravate the crisis.

Surgical Strikes

Surgical strikes as reprisals may have some legitimacy under international law. However, the legality of a course of action does not determine its efficacy. Prudent nations weigh the moral and practical consequences of reprisals. India, as the largest democracy of the world with a substantial Muslim population and an active trade partner with scores of Muslim nations, would not attack Muslim Pakistan on the mere basis of legality. Iran, Saudi Arabia, and other Muslim nations are already pressuring India to repudiate the option of surgical strikes.

Furthermore, Pakistan will not accept surgical strikes without a countermeasure. There was some suggestion that Pakistan should play dead and allow India to launch surgical strikes. In fact, rumors circulate that the Bush administration proposed such a notion of reprisals to deflate the crisis. It now appears that Pakistan is determined not to allow surgical strikes and will resort to the escalating logic of eye for eye. If surgical strikes are launched without the consent of Pakistan's high command, a devastating war is most likely the consequence.

Extradition and Prosecution

While surgical strikes are perilous, India's proposal that the leaders of militant organizations, who allegedly planned the Mumbai massacre, should be extradited to India for prosecution has merit. No extradition treaty exists between India and Pakistan and therefore the proposal cannot be legally enforced. However, international law does not prohibit extradition in the absence of a treaty. Extradition will be a gesture of goodwill and commitment to fight regional terrorism if Pakistan were to accept the proposal.

But given the institutional clout that militants enjoy with Pakistani armed forces, intelligence agencies, and even the people, the Pakistani government cannot voluntarily surrender any militant leaders to India. As of now, India has offered no proof that the named militants planned or perpetrated the Mumbai attacks. But even if irrefutable proof is provided, Pakistan, for a host of complex domestic reasons, is unlikely to extradite the militants to India.

Furthermore, the possible extradition of militants to India would exacerbate the threats of terrorism. Past episodes indicate that militants fight harder when India captures their leaders. In 1999, militants hijacked an Indian passenger aircraft to Afghanistan, then under the rule of the Taliban, and successfully obtained the release of several Muslim militants whom Indian security forces had captured. A voluntary surrender of militant leaders to India would make both Indian and Pakistani governments the targets of violence. Suicide bombings will go into India and multiply in Pakistan.

International Tribunal

While the fear of terrorism cannot determine foreign policy, good sense points toward the establishment of an international tribunal. Of course, the international tribunal cannot stem violence. Unless the Kashmir dispute is resolved, militancy against India is unlikely to subside. While the long term solution awaits, the establishment of an international tribunal will defuse the crisis and might even slowdown the progression of terrorism. Here are a few points that support the idea of an international tribunal:

• the Tribunal will provide a lawful cover for Pakistani government to hand over its citizens for criminal prosecution. While surrendering Pakistani nationals to India would be regarded as an act of national shame, giving way the same individuals to an international tribunal will be acceptable to the people of Pakistan and its armed forces.
• neither India nor Pakistan will face the inevitable criticism that the prosecution was unfair in case the militants are tried in either national jurisdiction. Conviction of militants by an international tribunal will boost Indian demands that Pakistan do more to curb militant organizations.
• prosecution through an international tribunal will safeguard the defendants' criminal justice rights. The world cannot presume that anyone charged with terrorism is ipso facto guilty. India and Pakistan, as civilized nations, cannot adopt the disgraceful procedures that the Bush administration has employed to punish and even kill suspected terrorists without any trial.

The establishment of an international tribunal will empower India and Pakistan to demonstrate that terrorist criminality can be handled through peaceful judicial manner. The logic of surgical strikes and extra-judicial killings of suspected terrorists may satisfy raw emotions for revenge. Such reprisals do little to ennoble our sentiments for peace and justice.

Ali Khan is professor of law at Washburn University School of Law in Topeka, Kansas, and the author of the book, A Theory of Universal Democracy (2003). Many of his publications are available here.

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