A MONTH and a half after the Mumbai blasts on November 26, 2008, India-Pakistan diplomacy on the subject is dangerously deadlocked. Initial promise of accord on amends dissipated within three days, setting a pattern that has congealed with time. How far the dialogue has moved can be gauged with two statements by Pakistans leaders.
On November 29, President Asif Ali Zardari was asked by an Indian television channel: Can you assure the Indian people that Pakistan will do everything it can to investigate and to inquire into this connection so that we get to the bottom of this matter? That connection was to people in Pakistan. He replied: Most definitely, this is a world incident. Today, every terrorist act is a world incident and [there are] multinational casualties. I am sure that the world intelligence agencies will be called. But at the same time, as the President of Pakistan, let me assure [that] if any evidence points to any individual or group in my country, I shall take the strictest of actions in the light of the evidence and in front of the world (emphasis added, throughout).
Three points must be noted. There was an unqualified pledge most definitely to investigate so that we can get to the bottom of this matter. That could be done only in Pakistan, as the entire world knew and said. Secondly, he did not belittle the blasts as one incident. He called it a world incident, which is why world leaders spoke up as they did and the international media descended on Mumbai. Thirdly, he said that if any evidence points to any individual or group in my country I shall take the strictest of actions in the light of the evidence and in front of the world.
This is fair. The adequacy of evidence on any matter depends on the purpose. Facts that create a reasonable suspicion of the commission of an offence justify the initiation of a police investigation and arrest of the suspect. To justify an order committing the case to the Sessions Court or framing of charges, proof of the commission of the offence is not required. Only a prima facie case needs to be made out. It is defined as evidence which, if unrebutted, leads to inference of guilt. Proof beyond reasonable doubt is only required for conviction in a court of law.
The International Court of Justice has ruled that in fixing a states responsibility for the actions of its own non-state actors, a lesser degree of proof is required (see Pakistans Burden; Frontline, January 16). Zardaris use of the expression points to, rather than proves, is therefore sound. He repeated it points to any camps. He knew, of course, what was afoot. We need to look at it as [an] action of non-state actors, he said, in the context of the nationality of the perpetrators, of course.
Contrast this with Prime Minister Yousuf Raza Gilanis remarks on January 10 and you get a fair idea of the gravity of the impasse and the depths to which the dialogue has been brought. It was adversarial in tone and contradicted Zardari flatly. The Mumbai attack was not a world incident but Indias internal matter arising out of an intelligence failure in India. If this be Pakistans stand after six weeks contrary to that of the United States, the United Kingdom, and very many others, let alone the aggrieved country, India how sincere is its promise of joint investigation or even of its own internal investigation? He said also, We are now defending two countries, not one. We are defending them and ourselves.
Sensing Pakistans isolation on the issue of its responsibility, he said: As far as the world is concerned, it is presenting this one incident in an exaggerated manner. He added, citing Palestine and Kashmir: We have to see that the world does not have double standards. He asserted there is no need for them to make so much noise on one incident.
A Prime Minister who so callously belittles the gravity of a crime committed by the nationals of his country, a crime that aroused worldwide condemnation, who pours scorn on that condemnation and ridicule on the aggrieved country, is not one who can be trusted to show any sense or sobriety in the matter.
But Gilani is an educated man, a politician who has been through the grind. What he said is of course disgraceful. Mature people should ask why he chose to speak thus, or why he had to speak thus. Do not laugh at him for asking Indian politicians to mend their ways. Ask, instead, why he has chosen this cul de sac, or, to repeat, what compulsions drove him to this path, which he so pathetically covers up with juvenile noises.
Pakistan has four demands to make of India: dont blame us, no finger-pointing; dont threaten us; dont build up diplomatic pressure; your media must not censure us. So, leave it to our sweet will. Pakistan will conduct its own investigation and prosecute the suspects in its own manner. Not surprisingly, the Indian dossier of evidence was rubbished within 24 hours of its receipt.
The Economist (January 10) summed up Indias dilemma neatly: This puts India in a bind. If it responds belligerently, it plays into Pakistans hands. But if it rules out military action, its threats are toothless. Hence it has mounted a concerted diplomatic drive to persuade Pakistans allies notably America and Britain to put pressure on its government and army to roll up the terrorist networks.
Pakistan will respond by emphasising the fragility of civilian rule, the armys self-proclaimed role as a bulwark against Islamic fundamentalism, and its vital contribution to the Wests war in Afghanistan. In the past, these arguments have enabled Pakistan to withstand efforts to confront the terrorists. Now, however, public anger in India is such that if the government has nothing to show for its diplomatic blitzkrieg or worse still, if there is another attack linked to Pakistan it may be forced to bare its teeth after all.
Regardless of another such attack, this is election year. In Kargil, the challenge was simple and clear-armed attack. That was also election year. How do we respond to the present challenge repeated attacks on India by persons who are motivated, paid, trained and organised for such attacks on Pakistans soil? No words need be wasted to describe what public opinion will demand of New Delhi when next such an attack occurs.
In India there has been hardly any serious effort in the media to suggest an effective, practicable and credible response. Some replay Operation Parakram as if that was a resounding success. All they can do is to brandish Pakistans famous pledge of January 6, 2004. It is a measure of the lack of seriousness that one former High Commissioner to Pakistan went so far as to advocate use of water as a weapon. That a breach of the Indus Treaty will bring in the World Bank, the U.S. and the U.K. and that the use of water as a weapon is a heinous crime in international law and morality escaped him completely. With such a poisoned mindset, what diplomatic competence could he have shown when he was misplaced in Islamabad? What professional objectivity can you expect from one who hates the country to which he is sent?
It is a complex situation fraught with danger. Self-indulgent, simplistic suggestions are futile, for example, on the United States We must not rely on the Americans. But does it make sense to reject its help with full knowledge of the fact that beyond a point India-U.S. interests will diverge? For that matter, so did Indo-Soviet interest during the Bangladesh war. No two states have a complete congruence of interests. Chauvinism does not help to understand. It does lend authority to performance on television.
The same holds good for the simplistic chatter about the use or disavowal of force. Diplomacy without the ultimate backing of force not necessarily armed force is impotent. Force unrelated to realistic, achievable political aims is sterile.
As the great realist Hans J. Morgenthau said: It is the final task of an intelligent diplomacy, intent upon preserving peace, to choose the appropriate means for pursuing its objectives. The means at the disposal of diplomacy are three persuasion, compromise and threat of force. No diplomacy relying only upon the threat of force can claim to be both intelligent and peaceful. No diplomacy that would stake everything on persuasion and compromise deserves to be called intelligent. Rarely, if ever, in the conduct of the foreign policy of a Great Power is there justification for using only one method to the exclusion of the others. Generally, the diplomatic representative of a Great Power, in order to be able to serve both the interests of his country and the interests of peace, must at the same time use persuasion, hold out the advantages of a compromise, and impress the other side with the military strength of his country. The art of diplomacy consists in putting the right emphasis of any particular moment on each of these three means at its disposal.
Indias objectives are three. First, full exposure of the conspiracy of which the terrorists who landed on Indian soil were only an overt arm. Secondly, punishment of the leaders of the conspiracy. And lastly, credible guarantees against the recurrence of such crimes. These are perfectly valid, justified demands in international law and morality. Indias aim is not to humiliate Pakistan. It is to resolve the impasse and proceed ahead with the interrupted peace process. These valid demands will be impaired if, in excess of zeal, untenable ones are added. There is, for instance, absolutely no duty to extradite in the absence of an international treaty. All international conventions give the requested state a choice Aut Dedere Aut Judicare (extradite or prosecute). A sham prosecution is a breach of an international obligation.
The SAARC [South Asian Association for Regional Cooperation] Regional Convention on Suppression of Terrorism recognises this choice (Article 4). So does the European Convention on the Suppression of Terrorism (Articles 6 and 7). There is no way that Pakistan will surrender any of its nationals to India, nor, for that matter, any Indian national it has protected and nurtured. It was a misstep to link the present demands to the list of names given to Pakistan on December 31, 2001. The Bharatiya Janata Party (BJP) regimes handling of that crisis was not an example for emulation (see Of war-mongering and accountability; Frontline; February 15, 2002) L. K. Advani never published his oft-promised White Paper on the Inter-Services Intelligence (The talk of a White Paper; Frontline, November 24, 2000). Indias mobilisation of troops accomplished little the lessons of that operation have not been learnt. The June 2002 advisories by the U.S. and the U.K. to their respective nationals took the wind out of the BJPs sails. The ground for retreat was prepared by using the National Security Advisory Board, an innovation unique to India.
Lt.-Gen. (Retd.) V.K. Sood, former Vice-Chief of Army Staff, and Pravin Saw Lugy record in their book Operation Parakram: The War Unfinished how it was wound-up: Instead of taking the hint that Operation Parakram had outlived its purpose, the government attempted to keep a lid on the incident. It was time for India to demobilise its army. The Armys repeated entreaties finally bore results. Considering that Pakistan was not helping India find an honourable reason to demobilise forces, assistance was sought from the National Security Advisory Board (NSAB), the unofficial and lowest tier of the National Security Council. Consisting of retired bureaucrats, army personnel and university professors, the NSAB had been assembled once before in its three years existence under the Vajpayee government at the height of the Kargil war in June 1999. The main debate was whether the Army should cross the LoC [Line of Control] or not. The Army was keen that the option to cross the LoC, if the need arose, be made available. Aware that exercising the option would mean a full-scale war, the government wanted NSAB to endorse the same. The other achievements of the NSAB have been a draft nuclear doctrine, from which the government distanced itself within hours of its being made public in July 2000. The suggested doctrine was found too ambitious by the U.S. Another task given to the NSAB was to write the strategic defence review.
The NSAB assembled in Delhi on October 16, 2002. The main presentation was made by the former Army chief, Gen. V.R. Malik. His three main points were that the mobilisation had achieved the desired objectives, the element of surprise, which was of great military value, was lost, and that continued mobilisation would have a detrimental effect on the morale of the troops. Within hours of the meeting, the government announced that Operation Parakram was over. Instead of demobilisation, the army was told to undertake a strategic relocation (pages 84-85).
The list of 20 given on December 31, 2001, was reckless folly, moving the goal post to a point that was unreachable. In contrast, the demarche, read out by Foreign Secretary Chokila Iyer to Pakistans High Commissioner Ashraf Jehangir Qazi on December 14, 2001, was pre-eminently reasonable Pakistan should stop all the activities of the Jaish-e-Mohammed (JeM) and the Lashkar-e-Taiba (LeT): arrest the well-known leaders of the two groups; freeze their financial assets; and seal their office. There was no demand that the leaders be handed over to India. That came later in Advanis list. Despite Pakistans preposterous initial responses call for joint investigation and hints of conspiracy by Indian agencies the demarche did not warrant mobilisation of troops for its satisfaction. That would have been accomplished without taking the country to the brink of war.
Once Parliament adjourned on December 19, 2001, the government went public with leaked warnings. Pakistan has time till Christmas Day to comply with Indias request to hand over Jaish-e-Mohammad leader Masood Azhar and crack down on his outfit as well as the Lashkar-e-Toiba. If President Pervez Musharraf refuses to take action, India feels that it has no choice but to take matters into its own hands to protect its national interest. The mood in the Indian establishment signalled that the government is prepared for war if Pakistan remains adamant. India, which feels that the U.S. has the maximum leverage over Musharraf, is banking on Washington to force his hand (The Telegraph, December 23, 2001).
Advani had high hopes. He told a Shiv Sena rally in Mumbai on January 20, 2002: We will solve the Jammu and Kashmir issue once and for all.
One man saw through it and spoke up. Pranab Mukherjee explained the Congress support to the government while expressing his doubts and even anger. It was national interest, nothing else. At this time, we do not want to create the impression that there is a divergence of views in the political establishment. Certain questions do come to mind. One is whether it was necessary to build up this type of hype, this war psychosis. Was it meant to draw international attention to the type of terrorist threat we are facing? Or was it meant to influence the local elections? Or was it meant to counter pressure from the inner layers of the Sangh Parivar?
Another question constantly haunts me. If our demand is that Pakistan must stop supporting terrorism, and its only then are we prepared to talk, what does this mean? No country will say it is supporting terrorism, so how can it say it has stopped supporting terrorism?...
Surely the problem cannot be resolved by launching a war against the country which is harbouring the terrorists. It is just not possible. We have to fight it within our borders, see that terrorists dont infiltrate into our country. We are not in 1914, when an Austrian prince was killed and Europe fought World War I. If you are the U.S. maybe you can think of doing that. When you are not, you are not. They shouldnt have created this war hysteria. Both India and Pakistan are nuclear weapon states. Surely they are aware that the United Nations Security Council empowers the five permanent members with special powers to intervene in a conflict between two nuclear states (The Indian Express, January 13, 2002).
These realities could not and should not have been absent from anyones mind in India or in Pakistan, in the government or in the media when the terrorists struck on November 26. That was when we had to define the remaining options, evolve a realistic strategy, and make sensible demands. Given the fact that the military option was unreal, as all knew India, Pakistan and the U.S. talk of all options could only arouse suspicion and play into the hands of the hawks in Islamabad, the professional mediators in the U.S. and the U.K., and provide fodder to the TV anchors. Mukherjee said as early as on December 13: Let them be tried as per Pakistan laws (The Hindu, December 13, 2008). But he did not stick to this stand and reverted to unrealistic demands for delivery of the suspects. Which is why his remarks on January 15 seemed to be a shift from his earlier position. Breaking news, indeed. It did not help us. It helped Pakistan to contend that Indian demands were unreal, its talk of options were a threat. Ergo, it could do little. The Indian media, meanwhile, said that India had lost the diplomatic battle. Some former diplomats joined in this refrain. They had nothing practical to offer except escapist suggestions strike, turn off the waters, and so on. After a promising beginning, Pakistan changed course.
How did events take the course they did thereafter? In less than a week, within 72 hours in fact, the gravity of the challenge India faced and the depth of the malaise it had to tackle became all too evident. Those three days provide a clue to the past and also to the options available now.
That explains the desperation of those who are confronted with the limitations on Indias options which are inherent in the situation. But the options that are available are real and potentially effective, provided they are pursued with patience and cold determination. A steady flow of rhetoric is no substitute for either. Whether India is a soft power or not, India appears as a very talkative state. A calm retrospect will be more helpful. If we understand realistically why Islamabad changed its initial position, we will be better equipped to deal with the changed stand that has now hardened into an adamant refusal to see reason, as Gilanis remarks reveal.
Prime Minister Manmohan Singhs broadcast on November 27 did not even mention Pakistan by name: We will take up strongly with our neighbours that the use of their territory for launching attacks on us will not be tolerated and that there would be a cost if suitable measures are not taken by them.
Pakistans Foreign Minister Shah Mahmood Qureshi, who was in India then, said on November 28 there are extreme and rogue elements in every society and pleaded for trust. The admission that was implied was significant.
That was the day the two Prime Ministers spoke on the phone and agreed on the despatch of the ISI chief, which, very understandably, did not come to pass. Unfortunately, no other representative of the Pakistani government arrived, either, despite Zardaris offer. Evidently, neither side followed up on the offer. Zardari spoke on the phone to Manmohan Singh, so did Mukherjee to Qureshi. Qureshi admitted that there was no threat in his [Mukherjees] tone and that he had rather pleaded for cooperation (Dawn; November 30, 2008).
What more could India have done to assure Pakistan that it did not want war? Yet the very next day, on November 29, in Islamabad, Qureshi adopted a belligerent tone and hinted at war. The first hint came, not from India, but from Pakistan. Why? Pakistan must hope for the best, and plan for the worst. You know what the worst means. He asked the people to stay calm and united and sink their differences so that Pakistan is ready for any eventuality.
Neither coherence nor consistency was evident, for he accepted that there could be certain elements that might be opposed to the normalisation of ties between the two countries and the Pakistan government would like to keep an eye on them. The absurdity of the assurance escaped him.
He conceded that India had not blamed the Government of Pakistan but groups or individuals, yet he demanded an end to pointing fingers [sic.] at Pakistan without evidence. A pretence of continuity was maintained. Pakistan had decided to extend full cooperation at all levels political levels and at the level of intelligence agencies.
A decision was indeed taken, but not by the government. It was by the Army, and it was not to cooperate. Nirupama Subramaniam reported that earlier in the day the Inter-Services Intelligence too briefed Pakistani and Western media that it expected an escalation in tensions on the eastern border and the next 48 hours are crucial as India was expected [sic.] to formulate a plan of action in the wake of the Mumbai attacks. Theyll have clarity of thought and will have clarity of the situation in the next 24-28 hours, one of the officials said. The officials who briefed the press did not rule out the possibility of an eyeball to eyeball situation between the two militaries (The Hindu, November 30, 2008).
A false excuse was coupled with an ominous threat. Pakistan would move troops from the west to the east.
On November 28, Gilani despatched a special plane to fetch Qureshi from New Delhi for a Cabinet meeting due the next morning. He could not have reported any threat by Mukherjee. It was an invention. Harinder Baweja, who was in Islamabad then, also reported: 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-Dawas 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 (Tehelka; December 20, 2008).
The next day, November 30, clarity seemed to have descended on Islamabad. Major-General Athar Abbas, Chief of the Inter-Services Public Relations, said: As far as the official authenticated reports are concerned, there is no such movement or mobilisation of troops on the Indian side of the border. Yet armed forces were put on high alert in view of a possible military build-up by India along the border (Syed Irfan Razas report in Dawn, December 1, 2008).
On December 1, the Ministry of External Affairs made a demarche to Pakistans High Commissioner, which read thus: He was informed that the recent terrorist attack on Mumbai was carried out by elements from Pakistan. Government expects that strong action would be taken against those elements, whosoever they may be, responsible for this outrage. It was conveyed to the Pakistan High Commissioner that Pakistans actions needed to match the sentiments expressed by the leadership that wishes to have a qualitatively new relationship with India.
It could not have been milder or more accurate. The Hindu of December 3, 2008, reported Mukherjees remarks under the headline Pranab rules out military action. Given the public outrage, he had to walk the tight rope, which led other papers to report Military option not ruled out. But Dawn of December 3 had the correct version: Military action not being considered, says Mukherjee.
All this was enough for the Condoleezza Rices, John McCains and the David Milibands of this world to descend on the region, thanks to the noises by government leaders there and the media here. The hoax of a call to Zardari falls into this pattern to justify the noises. Pakistan responded to the Indian demarche on December 8. It said that it had initiated a probe on its own into the involvement of any individual or entity in Pakistan and proceeded to offer full cooperation with India, including intelligence-sharing and assistance in investigation, as well as the setting up of a joint investigative commission.
The technique was to hint at admission but recoil from the obvious next step. Pakistan will take action against the non-state actors, Zardari wrote in The New York Times on December 10, the very day some LeT figures were arrested.
Were not denying it; were not accepting it. If you [India] have any evidence, share this evidence with us, Qureshi said in Paris on December 13, which does not fit with his admission at his home town Multan on December 21 that it was our responsibility to prove that allegations levelled against Pakistan are wrong.
Manmohan Singh said on December 23 that the issue is not war. The issue is terror, and territory in Pakistan being used to promote aid and abet terror here. This should have settled the matter. Mukherjee said on December 28: There is no question of any ultimatum, nobody has set any ultimatum.
After a spate of disclosures by The Observer on December 8, Geo TV on December 12, The Times on December 22, and the Wall Street Journal on January 2 came the admission by Sherry Rehman, Information Minister, on January 7: We are confirming Ajmal Qasab is from Pakistan. That is enough to make Pakistan responsible, legally and morally.
The game becomes clear. Indias dossier of evidence was given to Pakistan on January 5. A statement by the Pakistani Foreign Ministry promised: The Government of Pakistan will evaluate the information provided by India so far. Less than 24 hours later, Foreign Secretary Salman Bashir said it was not sufficient and could not be regarded as evidence.
In this context, remarks by Indian leaders that given the sophistication and military precision of the attack, it must have had the support of some official agencies in Pakistan are unfortunate, though they are very true. They are unfortunate because the next logical course that such remarks suggest raises the spectre of war, which we must do our best to bury. Both the U.S. and the U.K. baulk at any suggestion of state complicity. British Foreign Secretary David Millibands comments in New Delhi on January 13 are understandable: I have said publicly that I do not believe that the attacks were directed by the Pakistani state. And I think it is important to restate that in India. We should be content with his acknowledgement What is relevant is the approach of the Pakistani State to the Lashkar-e-Taiba. What hope can India have on that front? On the same day, Gilani asserted: All that has been received formally from India is some information. I say information because they are not the evidence. Faced with the deadlock, Home Minister P. Chidambaram has hinted at measures short of war snapping of trade, communication, and so on. Why did he need to say all that?
In this entire affair, India has never sought to humiliate Pakistan. But Pakistans stand spells Indias humiliation in two respects. It had made the offer of joint investigation even in 2001 and repeats it now with denials of responsibility. They testify to lack of honesty. Its stand in the main is that it will follow its own course, time will take care of the crisis, and India will yield to time. This is a grave miscalculation. This time India will not accept a paper promise of the kind the BJP flourishes as a great achievement of Operation Parakram the joint statement of January 6, 2004, in which Pakistan promised to not permit any territory under Pakistans control to be used to support terrorism in any manner.
The 46-page dossier Mumbai Terrorist Attacks (Nov. 26-29, 2008) contains a 55-para resume which concludes: The evidence gathered so far unmistakably points to the territory of Pakistan as a source of the terrorist attacks in Mumbai between November 26, and November 29, 2008. It is also abundantly clear that senior functionaries of the LeT were the controllers/handlers of the ten terrorists. The evidence unmistakably establishes that the ten terrorists were chosen, trained, despatched, controlled and guided by the LeT, which is the organisation responsible for the terrorist attacks in Mumbai. Neither the state of Pakistan nor the ISI is charged with complicity.
But it is idle to expect any cooperation from Pakistan because the LeT was an ISI creation and received ISI help enormously. Trying the LeT men in a case involving attacks on India risks disclosures by the LeT of ISIs help in the past. The somersault on November 29 was ordered by the Pakistan Army. The war scare was artificially created as a pretext for non-cooperation. Offers of help are manifestly insincere, as the record shows.
What is the difference between evidence and information? The Concise Oxford Dictionary defines evidence as information indicating whether a belief or proposition is true or not. It adds what that means in law information used to establish facts in a legal investigation or admissible as testimony in a law court. It provides signs, indications. When added up, it can amount to proof.
And what, pray, is information? It is facts or knowledge provided or learned as a result of research or study. That includes investigation by the police or by a private individual. It can be a crime or anything. Information when collected can be used to establish facts in a legal investigation or in a trial if it is admissible as testimony in a law court.
In short, information relevant to an issue in dispute is evidence. An eyewitness who testifies to murder provides information, but it is information usable as evidence Technical rules determine admissibility in count. But even commissions of inquiry are not bound by the Evidence Act, 1872, which is in force in both countries. We are bound by the lesser standards in cases of state responsibility, as laid down by the World Court.
But Section 3 of the Act, which defines proved, is relevant: A fact is said to be proved when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The test is probability. In the circumstances of the blasts, does not Indias dossier render it very probable, if not more, that they carried out by men acting on the instructions of handlers based in Pakistan the IED devices, the trawler MV Kuber, the pistols, satellite phones, GPS sets, telephone links, transcription of calls, and Ajmal Amirs statement?
There is the evidence of eyewitnesses to the terror. The trawler alone yielded 16 items of evidence. Has India fabricated all this evidence? Pakistans denials simply make no sense. The only inference we can draw from its contradictions, professions of friendship and assertions of military prowess is that its leaders are in a bind. They are bound by a force they cannot disobey the Army. That is what India is up against.
Pakistans Minister for Interior Rahman Maliks statement announcing some steps is interesting. The acid test is the trial and punishment of Ajmal Amirs actual handlers and the bosses who preside over these crimes.
A sham trial will be an insult. At some point, the aborted visit of a representative of Pakistans government should be welcomed.
Meanwhile, in India, a calm determination should impose silence on all, military leaders particularly. India cannot and will not forget the crime. But its objectives will be more effectively pursued if the megaphone is put aside, particularly by the Army chief. Whether India is a soft power or not, India appears as a very talkative state.
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