Kasab's Defence

Under the law every accused in a court case is entitled to a lawyer for hisdefence. In the case of Ajmal Ameer Kasab, accused in the Mumbai terror of26/11, the revulsion over the heinous crime was such that no lawyer was preparedto defend him. Public opinion was strongly against providing any legalassistance to Kasab because his crime was considered indefensible. Most peoplewant Kasab to be executed at the earliest. The eminent criminal lawyer, Mr RamJethmalani, tried to assuage public anger by stating that the law made incumbentthat Kasab be provided a lawyer. He went on to add that "even a hundred RamJethmalanis cannot save Kasab from the death penalty".

Recently it was reported that one Delhi lawyer, Mr MS Khan, is likely to defendKasab. Defending the accused does not necessarily imply that he be provedinnocent. The lawyer can also plead for a lighter sentence for him. When theevidence 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 ordinaryterrorist attack. If media reports sourced to official agencies are correct,there is evidence to prove that he along with his accomplices was sent fromPakistan to carry out the terrorist assault. There is evidence to prove that hewas trained for this mission along with the others. There is evidence to provethat sections of the Pakistan Navy provided help to the terrorists. There isevidence to prove through cell phone recordings that before and during theattack sources in Pakistan were in touch with those carrying out the attack inMumbai.

In the light of this Kasab can rightly claim that the terrorist attack was infact a Pakistan army mission and he was for all practical purpose a soldier outof uniform. He is therefore a prisoner of war. According to the GenevaConvention no prisoner of war can be executed. Article 2 of the GenevaConvention on Prisoners of War states: "…In addition to the provisions whichshall be implemented in peace time, the present Convention shall apply to allcases of declared war or of any other armed conflict which may arise between twoor more of the High Contracting Parties, even if the state of war is notrecognized by one of them" (emphasis added).

Kasab’s lawyer therefore can plead to the court: "Your Honour, my client isa soldier without a uniform in an undeclared war. Therefore as a prisoner of warhe should not be administered the death penalty. Only Pakistan, which launchedits undeclared war and recruited my client for its mission, deserves to get thedeath penalty."