On January 16, 2023, United Nations Security Council’s(UNSC) 1267 Sanctions Committee, designated Abdul Rahman Makki as a global terrorist after China lifted its “technical hold” on the India-US proposal to designate Makki as a global terrorist. The designation of Makki as a global terrorist is an important step, in India’s fight against terrorism. This zero-tolerance attitude towards terrorism is the beginning of a complex process of enforcement of international law.
1. Who is Abdul Rahman Makki?
Abdul Rahman Makki is 68 years old and the Deputy Chief of the Pakistan-based terrorist group Lashkar-e-Taiba (LeT). He is the brother-in-law of Hafiz Saeed who is chief of Jamat-ud Dawa (JuD) and the mastermind behind the 26/11 Mumbai attacks. India is unwilling to let the 26/11 Mumbai attacks go by easily. India hosted an UNSC anti-terrorism summit, igniting outrage over the heinous atrocity, in Mumbai’s Taj hotel, the scene of the massacre in 2008.
Makki was involved in fundraising, recruiting, and radicalizing youth towards violence, and various terror attacks in India. Makki was involved in the Red Fort attack in the year 2000, the 2008 Rampur attack, the 26/11 Mumbai attacks, and in most of the terror attacks that took place in the state of Jammu and Kashmir. He was convicted and sentenced to prison by the Pakistani court in the year 2020.
2. India's strategical journey with Makki
India in its tenure at the UNSC had proposed the designation of five terrorists as global terrorists, namely Abdul Rahman Makki, Sajid Mir, Shahid Mahmood, Talha Saeed of LeT, and Abdul Rauf Asghar of Jaish-e-Mohammed(JeM) under the sanctions list of the ISIL and Al Qaeda Sanctions Committee. Further, India-US made a joint proposal to designate Makki as a global terrorist. 14 out of 15 members of the UNSC supported the listing. However, in June 2022 China using its veto power imposed a “technical hold” on the proposal to list Makki under the sanctions list.
Similarly in the past, India’s proposal to designate Masood Azhar the chief of JeM as a global terrorist had been blocked several times by China since 2009. After the Pathankot attack and Pulwama attack, even on moving the proposal with the support of the rest of the UNSC’s permanent members, China blocked it. India moved the proposal for the fourth time, and in the year 2019 China accepted it. It took India more than a decade to designate Masood Azhar as a global terrorist.
Whereas in the case of Makki, India’s diplomatic pressure continued for about 7 months, finally, in January 2023 China relented and lifted its technical hold. The UNSC listed Makki as a global terrorist. China’s surrender might be a result of India-China negotiations on the LAC issue. Hence, it is a step towards success for India’s diplomatic pressure against states opposing the designation of terrorist.
3. Enforcement of international law
India and USA have listed Makki as a terrorist under their national laws. Listing under the UNSC sanction list only implies the freezing of assets, a ban on travel, and an arms embargo. Does the designation of Makki as a global terrorist directly allow enforcement of International law? The question of jurisdiction still remains, Makki is a Pakistani citizen, can he be prosecuted, and if yes, who has the jurisdiction, is it India, US, or Pakistan? Until now Pakistan government has not indicated its willingness to cooperate with India in obtaining justice. Pakistan is highly unlikely to extradite Abdul Rehman Makki to India. Extradition between the two countries is virtually non-existent due to the hostile nature of their relationship. India-Pakistan relations have been strained for decades, and the two countries do not have an extradition treaty. It is that Makki would neither be extradited to the India nor US nor prosecuted by another country, due to the prevailing legal and diplomatic complications.
Another issue is that the international community has no unified system of criminal prosecution. There is no one single body that prosecutes global terrorists. However, there are a number of international organizations and bodies that work together to combat terrorism, including the UNSC, the International Criminal Court(ICC), the International Criminal Police Organization (Interpol), the Financial Action Task Force (FATF), and the Global Counterterrorism Forum (GCTF). Each of these organizations works to combat terrorism in different ways, from coordinating international law enforcement efforts to enforcing sanctions and tracking terrorist financing.
The only existing institution is the ICC which may have the potential to overcome the current legal gap and be an effective weapon in the fight against terrorism. The ICC was established in 2002, it has the jurisdiction to investigate and prosecute individuals over the most serious crimes of international concern, including genocide, crimes against humanity, and war crimes. Few scholars believe that the nature of crimes committed by designated terrorists might be prosecuted as a crime against humanity if committed in furtherance of an organizational policy that necessarily need not be that of a sovereign state.
However, in my perspective, terrorism does not comply with all the necessary ingredients to categorise terrorism under crimes against humanity. It would be appropriate to add explicit provisions regarding terrorism to the ICC Statute. Furthermore, ICC is competent to hear cases if the offence was committed in a nation that is a signatory to the Rome Statute or the country of origin of the offender is a signatory to the Rome Statute. Neither, India, US nor Pakistan is a party to the Rome Statute. But there is a strong belief that if terrorism is brought within the ambit of ICC, India and others might become a party to the Rome Statute.
Currently, the ICC does not have jurisdiction over terrorism, any cases involving terrorism are handled by the national courts of the country in which the crime occurred. Mere designation as a global terrorist would not suffice in the fight against terrorism. The United Nations have to set up an international institution similar to ICC for prosecuting designated global terrorists if the national courts are unable to render justice.
About the author …
Gurpreet Daas is an advocate in Delhi High Court. Gurpreet has graduated from University of Delhi and Lloyd Law College, India.