Under the law every accused in a court case is entitled to a lawyer for his
defence. In the case of Ajmal Ameer Kasab, accused in the Mumbai terror of
26/11, the revulsion over the heinous crime was such that no lawyer was prepared
to defend him. Public opinion was strongly against providing any legal
assistance to Kasab because his crime was considered indefensible. Most people
want Kasab to be executed at the earliest. The eminent criminal lawyer, Mr Ram
Jethmalani, tried to assuage public anger by stating that the law made incumbent
that Kasab be provided a lawyer. He went on to add that "even a hundred Ram
Jethmalanis cannot save Kasab from the death penalty".
Recently it was reported that one Delhi lawyer, Mr MS Khan, is likely to defend Kasab. Defending the accused does not necessarily imply that he be proved innocent. The lawyer can also plead for a lighter sentence for him. When the evidence is so overwhelming against Kasab, how can any defence be provided? There is one line of defence that does suggest itself.
Kasab’s defence can point out that his client was not involved in an ordinary terrorist attack. If media reports sourced to official agencies are correct, there is evidence to prove that he along with his accomplices was sent from Pakistan to carry out the terrorist assault. There is evidence to prove that he was trained for this mission along with the others. There is evidence to prove that sections of the Pakistan Navy provided help to the terrorists. There is evidence to prove through cell phone recordings that before and during the attack sources in Pakistan were in touch with those carrying out the attack in Mumbai.
In the light of this Kasab can rightly claim that the terrorist attack was in fact a Pakistan army mission and he was for all practical purpose a soldier out of uniform. He is therefore a prisoner of war. According to the Geneva Convention no prisoner of war can be executed. Article 2 of the Geneva Convention on Prisoners of War states: "…In addition to the provisions which shall be implemented in peace time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them" (emphasis added).
Kasab’s lawyer therefore can plead to the court: "Your Honour, my client is a soldier without a uniform in an undeclared war. Therefore as a prisoner of war he should not be administered the death penalty. Only Pakistan, which launched its undeclared war and recruited my client for its mission, deserves to get the death penalty."