Pakistans burden

Hafiz Mohammad Saeed, the Amir of Jamat-ud-Dawa, led the Lashkar-e-Taiba until December 2001.-AP

A LEADERSHIP that neglects public opinion in pursuit of a foreign policy dooms itself to defeat. A leadership that is slave to public opinion betrays the national interest and renders itself impotent. All the more so if it is led by ignorant TV anchors and the chatterati they assemble on TV channels seeking to roast their chestnuts in the fires of a national tragedy. It happened in 1999 at the time of the hijack to Kandahar of Indian Airlines Flight IC-814, in 2001 during the Agra summit, and was repeated after November 26 with a singular lack of sense, scruple or decency. Criticism has centred on the panelists, but the anchors who invited them to suit their own elevated tastes have gone scot-free.

All this had an impact on diplomacy. Pakistans initial reaction to the attacks on November 26 was laudable. When the two Prime Ministers spoke on the phone on November 28, it was natural for Manmohan Singh to invite the Director-General of the Inter-Services Intelligence (ISI), as it was natural for Yousuf Raza Gilani to agree and for the ISI to object. President Asif Ali Zardari offered to send a Director. The government spoke of a representative of the ISI. The crucial question surely is the degree of cooperation in the investigation. Sending the intelligence chief was too much to expect of any state, all the more so given the history and status of the Pakistan Army. Within moments of the announcement, Lt. Gen. Asad Durani, former ISI chief, expressed his dismay. Someone of lower rank should go, the DG following him, if need be. He was right.

There was little understanding of that in India, given the immaturity of some, and even less in Pakistan of the outrage in India and the gravity of the crime. But now the electronic media went berserk.

Harinder Baweja reported after a trip to Pakistan. Senior journalists in Pakistan admitted that briefings from the ISI changed the post-Mumbai discourse. Reacting perhaps to the loud, jingoistic demands on Indian television channels, for action against Pakistan, the ISI told a select group of journalists that India had in fact summoned their chief. Jamat-ud-Dawa Amir Hafiz Sayeed with a clear nod from his handlers appeared on one news channel after another, making the same points, that Indias list of 20 most wanted, which also includes him, was old hat, that India was playing the blame game without evidence, that India had its own band of Hindu terrorists and India should give freedom to Kashmir and end the matter once and for all. The leak, soon after, of the hoax call, purportedly made by External Affairs Minister Pranab Mukherjee to President Zardari, sealed the debate India-bashing was back in business. The jingoism overtook the more important debate of the threat Pakistan itself faced from terror networks flourishing on its soil (Tehelka, December 20, 2008; emphasis added throughout).

It was the medias foolish charge against Pakistan of backing out that fouled the atmosphere. Some Pakistani commentators and politicians needed little provocation to foul it, anyway.

In his speech in the Lok Sabha on December 11, Mohammed Saleem of the Communist Party of India (Marxist) remarked that in 2001 the media followed the government on Operation Parakram. But now it is the media which is leading the way and wants the government to follow it.

It was absurd to accuse Pakistan of backing out and futile to expect it to hand over any of its nationals to India. Like the European Convention on Terrorism, the SAARC (South Asian Association for Regional Cooperation) Regional Convention on Suppression of Terrorism gives a choice to the state to which a request for extradition is made. It must either extradite the offender on its soil or submit the case without exception and without delay to its competent authorities so that prosecution must be considered (Article IV).

On this, Pakistan has been consistently and grossly culpable. This has led India to suspect, with good cause, that its demand for evidence is made only to find fault with the evidence.

In his article in The New York Times on December 8, President Asif Ali Zardari said: Supporters of authoritarianism in Pakistan and non-state actors with a vested interest in perpetuating conflict do not want change in Pakistan to take root. Only Pakistanis can have such motives. The non-state actor is a national who acts independently of the state, unlike the stateless one who has no nationality. Zardaris description is apt. But he seems not to realise that in law this imposes an unqualified obligation on Pakistan to punish those Pakistani nationals, an obligation recognised in all works on international law.

Those Pakistanis have been identified by the media in Pakistan, notably Dawn and Geo News TV (both on December 12). Mohammed Ajmal Amir is a Pakistani citizen. On December 14, Britains Prime Minister, Gordon Brown, identified his affiliation. We know that the group responsible for the Mumbai attacks is the Lashkar-e-Taiba.

We owe a huge debt to the erudite Chief Justice of India, Justice K.G. Balakrishnan, for raising the issue even if it be in error. Speaking at a conference in New Delhi on December 13, in the presence of the Prime Minister and a distinguished gathering of lawyers and judges from abroad, Justice Balakrishnan censured the media first and, next, proceeded to lay down the law.

His remarks, reported in The Hindu of December 14, bear quotation in extenso. In the absence of bilateral treaties for extradition or assistance in investigation, there is no clear legal basis for international cooperation in investigating terrorist attacks. The pursuit of terrorists alone could not be a justification for arbitrarily breaching another nations sovereignty. Yet another practical constraint that has been brought to the fore with the Mumbai attacks has been the question of holding governments responsible for the actions of non-state actors. While one can say that there is a moral duty on all governments to prevent and restrain the activities of militant groups, the same is easier said than done.

These remarks offend every single rule in the book. First, they were made on a matter of great sensitivity, which is the subject of current diplomatic exchanges. Secondly, they were not really germane to the topic of the conference, namely, terrorism in the context of the rule of law and human rights, on which he sensibly warned against wanton disregard of human rights. Thirdly, there was no occasion for the excursion. Lastly, his remarks were in gross and egregious error.

It is one thing to say that in the absence of bilateral treaties for extradition a national cannot be extradited. But even Pakistan does not contend that there is no duty to render assistance in investigation. On the contrary its leaders repeatedly, profusely offer such assistance. But the CJI lumps extradition with investigation and confidently asserts that there is no clear legal basis for international cooperation in investigating terrorist attacks. This, before a distinguished international gathering, at a time when the worlds eyes are upon us, and when the people are crying for redress. What was the provocation for the obiter? As grossly erroneous is his denial of a legal duty on the governments responsible for the actions of non-state actors. He amplified: While one can say that there is a moral duty on all governments to prevent and restrain the activities of militant groups on their soil, the same is easier said than done.

Was he unaware of the United Nations resolutions on the subject and, indeed, of the Security Councils decisions that very week? He seems to be ignorant of a landmark ruling of the International Court of Justice that is cited in every textbook for undergraduates in law the Corfu Channel Case between Britain and Albania (1949) (ICJ Reports 4:22). The court ruled that it is every states obligation not to allow knowingly its territory to be used for acts contrary to the rights of other states. The court is concerned with law, not morality.

Another important ruling fortifies it. On June 27, 1986, the International Court of Justice ruled inter alia that by supporting anti-government forces in Nicaragua, the United States was in breach of its duties under customary international law. In view of the importance of this ruling, it is appropriate to set out here extracts from the authoritative official report of the judgment (International Court of Justice Report 1986; page 14).

The court observed: There appears now to be general agreement on the nature of the acts which can be treated as constituting armed attacks. In particular, it may be considered to be agreed that an armed attack must be understood as including not merely action by regular armed forces across an international border, but also the sending by or on behalf of a state of armed bands, groups, irregulars or mercenaries which carry out acts of armed force against another state of such gravity as to amount to (inter alia) an actual armed attack conducted by regular forces, or its substantial involvement therein. This description, contained in Article 3, paragraph (g), of the Definition of Aggression annexed to General Assembly Resolution 3314 (XXIX), may be taken to reflect customary international law. The court sees no reason to deny that, in customary law, the prohibition of armed attacks may apply to the sending by a state of armed bands to the territory of another state, if such an operation, because of its scale and effects, would have been classified as an armed attack rather than as a mere frontier incident had it been carried out by regular armed forces. The obligation is greater if the offenders are sent by the State. It, however, exists even if they act without the states consent or knowledge. It is elementary.

This was not an enunciation of new law but affirmation of established old law. The subject had been raised as long ago as 1934 in connection with the assassination of the Yugoslav monarch King Alexander at Marseilles by certain terrorists. Yugoslavia formally accused the Hungarian government, before the League of Nations, of tacitly conniving in the assassination inasmuch as it had knowingly allowed the major preparations for the deed to be carried out on Hungarian territory. In the course of the settlement of this dispute between the two nations, the League of Nations Council affirmed that two duties rested on every state: (1) to neither encourage nor tolerate on its territory any terrorist activity with a political purpose; (2) to do all in its power to prevent and repress terrorist acts of a political character, and for this purpose to lend its assistance to governments which request it.

A great authority, Edwin M. Borchard, wrote: A long line of cases has established certain qualifications upon the non-liability of the government for the wrongful acts of private individuals. These consist in certain manifestations of the actual or implied complicity of the government in the act, before or after it, either by directly ratifying or approving it, or by an implied, tacit or constructive approval in the negligent failure to prevent the injury, or to investigate the case, or to punish the guilty individual, or to enable the victim to pursue his remedies against the offender. The claimant ordinarily has the burden of proving the negligence of the government. The failure of a government to use due diligence to prevent a private injury is a well-recognised ground of international responsibility. A more frequent basis of governmental liability is the failure, after reasonable opportunity, to bring the offenders to justice. Incidental to this ground of liability is the inadequate punishment of guilty individuals, negligently permitting them to escape, or an inexcusable delay in investigating the facts. The test is not actual complicity. It is negligence and failure to exercise due diligence.

One of the most highly respected authorities, Oppenheims International Law, holds that a state is bound in law, that is, not only in morality not to allow its territory to be used for such hostile expeditions and must suppress and prevent them (Ninth Edition, Volume 1, page 394). He adds, A state also has a duty to do all it can to prevent and suppress attempts to commit common crimes against life or property, where such crimes are directed against other states (ibid, page 400).

True, all injurious acts cannot be prevented, but a pattern of grave crimes can be. For international law imposes the duty upon every state to exercise due diligence to prevent its own subjects, and such foreign subjects as live within its territory, from committing injurious acts against other states (ibid, page 549).

This then is the test exercise of due diligence. Pakistan has failed to meet it. It cannot go scot-free. It is liable to pay compensation to the victims and India would be justified in claiming it on behalf of wronged nationals.

Professor Antonio Cassese, an Italian jurist, was Judge and President of the International Criminal Tribunal for the former Yugoslavia. His work International Law (Oxford University Press; second edition, 2005) has been widely acclaimed. He writes:

In the case of unlawful acts committed by individuals not acting as de facto state officials, for instance against foreigners or foreign authorities, the state on whose territory the acts were committed incurs international responsibility only if it did not act with due diligence, if it omitted to take the necessary measures to prevent attacks on foreigners or foreign assets, or, after perpetration of the unlawful acts, failed to search for and duly punish the authors of those acts, as well as pay compensation to the victims. In other words, in the case of violence and other unlawful acts against foreigners, the state is not responsible for the acts on the individuals: it is accountable only if its own conduct by omission may be proved, that is it failed to act in conformity with international legal standards.

p>The US Diplomats and Consular Staff in Teheran case, decided in 1980 by the ICJ, is illuminating. The court divided the Iranian militants attack on the U.S. embassy and consular premises in Teheran into two phases. In the first stage the attack was carried out by militants who had no form of official status as recognised agents or organs of the Iranian state. Therefore, according to the court, the militants conduct in mounting the attack, storming the embassy and seizing the inmates as hostages could not be imputable to the state on that basis. Nevertheless, Iran was held responsible in that it failed to protect the U.S. premises as required by international law. The second phase started after completion of the occupation of the U.S. embassy. At this stage the Iranian government was legally bound to bring to an end the unlawful occupation and pay reparation. Instead it approved and endorsed the occupation. That adjudication was part of an accord. Will Pakistan pay up or submit the dispute to arbitration?

In the very nature of things direct evidence of culpability will be hard to secure. In the Corfu Channel case, the ICJ ruled that the fact of this exclusive territorial control exercised by a state within its frontiers has a bearing upon the methods of proof available to establish the knowledge of that state as to such events. By reason of this exclusive control, the other state, the victim of a breach of international law, is often unable to furnish direct proof of facts giving rise to responsibility. Such a state should be allowed a more liberal recourse in inferences of fact and circumstantial evidence.

The court must examine, therefore, whether it has been established by means of indirect evidence that Albania has knowledge of mine-laying in her territorial waters independently of any connivance on her part in this operation. The proof may be drawn from inferences of fact, provided they leave no room for reasonable doubts. The elements of fact on which these inferences can be based may differ from those which are relevant to the question of connivance. There is a lesser burden of proof on failure to exercise due diligence (Principles of Public International Law by Ian Brownlie; Oxford University Press; Sixth Edition, page 428). Indirect evidence suffices.

India and Pakistan both inherited Macaulays Indian Penal Code, 1860. It is unlikely that the Code as adopted in Pakistan is radically different. Section 125 makes it an offence to wage war against any Asiatic Power which is at peace with India. Section 126 reads thus: Whoever commits depredation, or makes preparations to commit depredation, on the territories of any Power in alliance or at peace with the Government of India, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine and to forfeiture of any property used or intended to be used in committing such depredation, or acquired by such depredation.

It is not inapt to characterise the Lashkar-e-Taibas attack on Indian soil, spread over the years, as depredations. They have been documented in the writings of eminent Pakistani authors, and a French authority on militants who exploit Islam for political ends Islamist Networks by Mariam Abou Zahab and Olivier Roy (Hurst & Co., London; 2004); Frontline Pakistan by Zahid Hussain (I.B. Tauris, London; 2007); The True Face of Jehadis by Amir Mir (Mashal Books, Lahore; 2004); and A to Z of Jehadi Organizations in Pakistan by Muhammad Amir Rana (Mashal; 2004).

There was the attack on the Red Fort in Delhi on December 22, 2000, and on Parliament House on December 13, 2001 (by the Jaish-e-Mohammed of Masood Azhar); the Mumbai train blasts in 2006; and now the attacks of November 26. By the Vienna Convention on the Law of Treaties, the India-Pakistan Joint Statement constituted a treaty and President Pervez Musharrafs assurance is legally binding to not permit any territory under Pakistans control to be used to support terrorism in any manner. True, attempts were made on his life as well, notably, on December 14 and 25, 2003. They were by Brigade 313, a loose alliance of five bodies, including the Lashkar and the Jaish. That does not affect the Lashkars culpability vis-a-vis India. It shows that it is a menace to Pakistan as well.

The Lashkars nexus with the ISI is well established. LeT had worked in close coordination with the ISI, which also provided support to launch the militants across the border (Zahid Hussain; page 55). Dr. Khalid Mehmood Soomroo of the Jamiat-e-Islam asked: Is there a single militant training centre in Pakistan which can operate without the consent of the Pakistan army? Zahab and Roy also hold the ISI responsible (page 53).

The Lashkar is a military wing of the Markaz Dawa Wal Irshad (Centre for Preaching and Guidance). It had two objectives: dawa (preaching) and jehad. Its former chief, Hafiz Mohammad Saeed, believed that both are of an equal and inseparable importance. Jehad had been neglected, he feels.

The training camps are in Pakistan-occupied Kashmir (POK). Zahab and Roy mention three, the principal one being Um al-Qura [sic] at Muzaffarabad. Five hundred mujahids are trained every month.

Rana, more authoritative than most, lists five Muaskar Tayyaba; Muaskar Aqsa; Muaskar Ummal Qara; Muaskar Abdullah bin Masood; and Markaz (Centre) Mohammed bin Qasim. The first three are at or close to Muzaffarabad; the fourth is elsewhere in POK; the last is in Sindh. Ten thousand men had been trained by 2004. The boss who guided Kasab, Zaki-ur-Rehman Lakhvi, is the Lashkars supreme commander.

The Lashkar practises sheer savagery. Women and babies are killed, and victims are beheaded and eviscerated (Zahab and Roy; page 40). The two main targets are India and Israel: Hindus and Jews, Mir writes (page 110). But Christians are also targeted. The Lashkar vows to liberate Spain, over which Muslims ruled for 800 years, and the whole of India.

After the attack on the Red Fort, Hafiz Mohammad Saeed told Zahid Hussain: The action indicates that we have extended the jehad to India (page 58). What was Islamabad doing all this while?

The seemingly innocuous educational establishment at Muridke is only the first step for new recruits before they are sent to the training camps in POK. There is a 21-day basic course, Dawa Aam, and a three-month advanced course, Dawa Khas.

In February 1998, Osama bin Laden announced the setting up of an International Islamic Front for Jihad, of which the Lashkar is a member. The Lashkars reach is global. Its men fought in Iraq, Bosnia, Chechnya, the Philippines, Eritrea and Somalia (Rana; page 334).

The Lashkar was banned on January 13, 2002, and also put on the United States State Departments list of terrorist bodies. Rana records what happened next: But Jamat-ud-Dawa had already taken precautionary measures prior to this. On December 24, 2001, the Ameer of Markaz Dawa Wal Irshad and Lashkar-e-Taiba, Hafiz Muhammed Saeed, addressed a press conference in which he announced the change of Markaz Dawa Wal Irshads name and an end to his leadership of Lashkar-e-Taiba. The same day the State Bank of Pakistan sent out a circular freezing the accounts of both Lashkar-e-Taiba and Umma Taameer-e-Nau. Professor Hafiz Muhammad Saeed announced that his organisations new name would be Jamat-ud-Dawa and he would remain its chief. The new chief of Lashkar-e-Taiba would be Maulana Abdul Wahid Kashmiri. Maulana Zakiur Rehman Lakhvi would be its supreme commander and the organisation would be limited to Kashmir. Its administration would also be moved to Azad Kashmir, Jamat-ud-Dawa would provide assistance to Lashkar-e-Taiba in Pakistan and any donations meant for the latter could be sent to the former. Lashkar-e-Taiba is functioning freely in Azad Kashmir, while many Jamat-ud-Dawa offices in Pakistan are being used as Lashkar-e-Taiba offices. In an operation against jehadi and sectarian organisations forty-five men from Lashkar-e-Taiba and Jamat-ud-Dawa were arrested, most of whom were ordinary workers or mujahids. The leadership had already moved to Azad Kashmir (page 328). As Zahid Hussain remarks, the new Jamat was just a cover to avoid international scrutiny (page 59).

When Pakistani Foreign Minister Shah Mehmood Qureshi speaks of charitable work by the Jamat, he imposes a strain on credulity. The money goes for warfare. Amir Mir points out that in practical terms, no step had ever been taken to dismantle or even disarm the Lashkar (page 97). Rana lists its 48 networks in Pakistan and five in POK, complete with the name of the chiefs and the addresses (pages 340-2).

The Lashkar is a menace to Pakistans democracy and also to India. President Zardari and some of his colleagues persist in a state of denial. Zardari performed a somersault after his New York Times article of December 8 only a little over a week later, in his interview to the BBC and to an Indian TV channel. Prime Minister Gilani is wide of the mark when he talks of defending Pakistan. Whoever threatened war, pray? There were no troop movements by India, unlike the folly of 2001; no threats and no charges. Both Prime Minister Manmohan Singh and Minister for External Affairs Pranab Mukherjee have been extremely careful to speak of elements from Pakistan, never of its government. Frankly, what does Islamabad expect India to do in the circumstances?

We have in Manmohan Singh a Prime Minister who staked his prestige on the success of the peace process. Pranab Mukherjee questioned Operation Parakram courageously when few dared to do so. In an interview published in Indian Express on January 13, 2002, he criticised the demand that Pakistan must stop supporting terrorism and its only then we are prepared to talk. He said: Surely the problem cannot be solved by launching a war against the country which is harbouring the terrorists. We are not in 1914, when an Austrian prince was killed and Europe fought World War I. They shouldnt have created this war hysteria.

He is quite satisfied if the culprits are tried as per Pakistani laws. India can try the Mumbai polices Kasab for the crimes he personally committed, as it did the perpetrators of the Mumbai blasts of March 1993. But that will not affect the conspirators. The charge is conspiracy to create mayhem. Its leaders, the conspirators, are in Pakistan. Will Pakistan agree to have a single trial of the surviving terrorist together with his mentors dwelling in Pakistan? India can provide the evidence at its end provided Pakistan shares fully the evidence at its end. Its amour propre will be respected. The trial will be on its soil, but it will be a real trial, not a farce. It will be based on shared evidence with Indian officials assisting Pakistans prosecutors in the court trying the conspiracy charge.

That, I fear, is unlikely to happen. More likely, the farce of 2002 will be repeated. This time the U.S. and the United Kingdom will not be quiescent, nor will India. Islamabad is mistaken if it imagines that it can ride out the storm and time will heal. A promising peace process will suffer. The two National Security Advisers, Major-General Mahmud Ali Durrani and M.K. Narayanan, had a good meeting on October 14. Durrani wrote an excellent book, India and Pakistan: The Cost of Conflict; The Benefits of Peace. On November 25, the Home Secretaries met in Islamabad to discuss security. It would be a shame to let the entire peace process since 2004 go up in smoke. President Zardari must send a representative of the ISI in a delegation led by a senior Minister, or Durrani can come. We must devise a fair solution to this impasse. The alternative to direct dialogue is American intervention.

Lt. Gen Asad Durrani, rightly said: The U.S. is not an honest broker; it has interests in both our countries. India always said it did not want U.S. intervention now is the time for India and Pakistan to cooperate with each other and keep that intervention out. We can do this ourselves (Tehelka, December 13, 2008).

Nawaz Sharif, a former Prime Minister who initiated the peace process in 1997, gave sound advice to his country on December 11: Pakistan should seriously engage India. We should invite them and we should go to India to take a look at the evidence [in the Mumbai attacks]. We should do whatever is possible to help India and combat terrorism jointly. The blame game is not in favour of Pakistan and India.

Quite needlessly, Pakistans pronouncements propound a chicken or egg dilemma. On December 14, President Zardari said Pakistan could not come up with proof earlier than India but we are investigating. Prime Minister Gilani said the matter could be pursued once India provided the evidence. However, Pakistan had begun its own investigations into the Lashkar. Would Pakistan be lacking in evidence if the criminals had not struck in Mumbai?

India can possess evidence only of (a) the actual physical attacks and (b) their perpetrators. Identifying their leaders and instigators is a matter of inference from the evidence collected in Mumbai and, indeed, the Lashkars proven and well-established record. By the world courts tests, that evidence is enough to warrant Indias demands on Pakistan to furnish further evidence about the mentors of these criminals. Pakistan alone can collect and provide evidence of the conspiracy which was hatched on its soil. Pranab Mukherjee has left it with the option of a trial in Pakistan. A farcical trial would be an insult. India can try the man in its custody. Pakistan alone can hold a credible trial of his handlers. Each side can provide the other with evidence bearing on the trial on its territory.

Pakistan must act on Nawaz Sharifs advice. It would be a shame to wreck the most promising peace process that India and Pakistan have known in recent decades.

There is a way out of the impasse. International law suggests India can give Pakistan evidence confined strictly to the nationality of Ajmal Amir. Once it does that the onus shifts unavoidably on Pakistan to provide evidence of his fellow conspirators and their deeds over the years. Indias evidence will be based on admissions in Pakistani and foreign media, besides the evidence in its own possession. Once Pakistani nationality is proved, Pakistan acquires all the obligations that international law imposes on it. Pakistan will have to explain how its national was able to mount such an attack on Indian soil and provide the names of his conspirators, his training camp, and the name and working of the organisation that promotes such activity.