The long arm of the law

The dream of forcing international villains to while their remaining days in prison is unlikely to come to fruition.

It is war, not indictments and subpoenas, that is considered diplomacy by other means. A civil suit filed in Brooklyn in New York earlier this month seeks to challenge that bit of conventional wisdom. Relatives of US citizens killed in the 26/11 Mumbai attacks two years ago are seeking damages from those they believe are responsible for taking the lives of their loved ones: the Lashkar-e-Taiba, ISI and individuals from both groups.

The civil suit is a quixotic one. If the military exercised its veto power when the civilian government agreed to send the ISI chief to India after the attacks, chances are slim that it will allow intelligence chiefs to be deposed in an American courtroom. And don’t expect a sudden surge in demand for one-way tickets from Muridke to New York. Even if the absentee defendants are declared liable for the attacks, the collection of any monetary award — the plaintiffs are seeking a minimum of $75,000 per defendant — will be impossible.

This is not to say that legal action is a pointless publicity stunt. Rather, it reflects a growing realisation that the courts can force governments to take action even when it is hesitant to do so. Kreindler and Kreindler, the law firm representing the plaintiffs, has a history of doing just that. Its legal action against the Libyan government after the Lockerbie plane bombing created international pressure that forced Moammar Gaddafi to fork over more than two billion dollars to the families of the victims. The firm has also reached settlements with airline companies after it filed civil suits holding them responsible for the security lapses that led to 9/11.

US lawyers have pioneered and perfected the art of taking legal action against individuals and organisations that have donated funds to terrorist groups. The aim of such actions is not to lock up the ringleaders of terrorist attacks; rather it is to deter future attacks by cutting off sources of funding and forcing the government to be more alert to support for terrorist groups in its own country. In that regard, it is interesting that the 26/11 civil suit mentions David Headley’s fundraising activities in the US. It is not unreasonable to infer, then, that the true aim of the suit is not to collect reparations from the Pakistan government, but to shut down those who give material help to militant groups. If the plaintiffs are lucky, media attention may also force the US government to rethink its support of Pakistan.

In Pakistan too, individuals, perhaps unwittingly, are using the power of court cases that seem destined to fail to achieve explicitly political ends. Trying to get Pervez Musharraf in the dock for the killing of Akbar Bugti takes optimism to new extremes. But if the aim of the case filed against Musharraf is to prevent the former president from ever returning to the country, it has succeeded handsomely. Safely ensconced in London from where he soliloquises on talk shows, the former dictator, his claims to the contrary, is never going to fly back to a country that is more likely to welcome him with a court date than a bouquet of roses.

Even Henry Kissinger, who once strode the international stage as if taking a stroll on his personal estate, is now too frightened to visit countries like Spain, where cases have been filed by public interest groups accusing the former secretary of state of war crimes. The dream of forcing international villains to while away their remaining days in prison is unlikely to come to fruition. Making their lives miserable through lawsuits, though, may represent the next great advance in human rights law.

Published in The Express Tribune, December 2^nd, 2010.