Palpable fraud

Print edition : May 21, 2010

Benazir Bhutto shortly before her assassination in Rawalpindi in December 2007.-AAMIR QURESHI/AFP

THE report of the United Nations Commission of Inquiry into the assassination of Benazir Bhutto, published on April 15, 2010, is an unprecedented product of an unprecedented process, vitiated by lack of transparency, political motivation, brazen partisanship, and a deliberate violation of its own terms of reference and the settled rules of natural justice and fair play. It is demeaning to those who initiated the process and to those who responded and produced a patently political inquiry document on a terrible tragedy which demanded a thorough professional probe.

The Pakistani leader was assassinated on December 27, 2007, as she left a rally at Liaquat Bagh in Rawalpindi, where Liaquat Ali Khan was assassinated in 1951; 24 others were killed and 91 were injured.

Let us begin with the one who sought a U.N. inquiry on a crime that had no external dimension President Asif Ali Zardari. He and his close associates could not have been ignorant of the fact that in all such cases a judicial commission of inquiry is set up, assisted by investigative agencies; in some cases, a parallel criminal trial is launched as well. The Warren Commission on John F. Kennedys assassination is one instance. Similar probes were set up in India on the assassination of Gandhi in 1948, Indira Gandhi in 1984 and Rajiv Gandhi in 1991. The assassins of S.W.R.D. Bandaranaike were punished after a trial in which the conspiracy was exposed. Bangladesh did not seek a U.N. probe on Sheikh Mujibur Rehmans murder, despite the fact that some suspects were abroad.

Pakistan itself had a precedent to follow. Its first Prime Minister, Liaquat Ali Khan, was assassinated on October 16, 1951. Within 10 days, the Government of Pakistan appointed a Commission of Inquiry consisting of Justices Mohammed Munir and Akhtar Hussain. Its report, submitted in February 1952, could not record a definite finding on the existence of a conspiracy since the assassin, Said Akbar, had been shot on the spot. The report severely censured the authorities for neglect.

The government obtained the services of C.W.E. Uren of the Scotland Yard. He contradicted the Munir report on all material points. But he was a foreign expert who assisted an entirely domestic process.

If Zardari did not follow this precedent it was not because he wished to speed up the probe. The U.N. report itself damns him on this in explicit and precise words: The Commission is concerned that its existence enabled the authorities responsible for the investigation to slow their activities. For example, the Government, which has been in office since April 2008, only commenced the further investigation in October 2009. The Commissions effort to determine the facts and circumstances of Ms. Bhuttos assassination is not a substitute for an effective, official criminal investigation. These activities should have been carried out simultaneously. Ms. Bhutto was killed more than two years ago. A Government headed by her party, the PPP, has been in office for most of that time, and it only began the further investigation, a renewal of the stalled official investigation, in October 2009. This is surprising to the Commission (paragraph 247; emphasis added, throughout). The word enabled is a clear suggestion of the governments use of a U.N. probe to slow their activities. This is not exactly a proof of bona fides. Hence the Commissions expression of surprise. A domestic probe was launched in October 2009 only after a U.N. probe was actually set up in July 2009.

The assassination site in Rawalpindi, in April 2010.-AAMIR QURESHI/AFP

This being the case, what precisely did the politician in Zardari, now at the apex of power, seek to accomplish by this unprecedented probe, which allowed foreign sleuths to roam all over the country undermining the morale of the police force and hurtful to the pride of a proud nation? Were they vetted? Central Intelligence Agency (CIA) men had entered Iraq as U.N. observers. It is a notorious fact that he distrusted the army, the Inter-Services Intelligence (ISI) and the security and intelligence agencies. A U.N. probe would put them in the dock, tame them and enable him to establish his control over them. He little realised that success would be bought at a very high price and with far-reaching consequences.

So determined was Zardari on a U.N. probe that he not only brushed aside sound professional advice from the Foreign Office but abruptly removed with immediate effect from the office of Foreign Secretary one of the ablest and wisest of diplomats it has ever produced, Riaz Mohammad Khan, on April 25, 2008. The government only commenced its investigation in October 2009, nearly a year and a half later, presumably on the prodding of the U.N. body.

Meanwhile, on February 2, 2009, U.N. Secretary-General Ban Ki-moon informed the President of the U.N. Security Council that he had received from the Government of Pakistan a request that I establish an international commission in connection with the assassination on 27 December 2007, of the former Prime Minister of Pakistan, Mohtarma Benazir Bhutto. While this letter is annexed to the report, the letter of request from Islamabad is not, significantly. He made a statement the falsity of which the report itself exposes: I am mindful of the determination and efforts made by Pakistan to search for the truth and bring to justice all financiers, perpetrators, organisers, sponsors and conspirators of this terrorist act so that they will be held accountable. He knew that there were then no signs of the determination or the efforts. Why did he utter this falsehood?

He recorded his discussions with Pakistans officials. It has been agreed that the international commission should be fact-finding in nature and that its mandate would be to determine the facts and circumstances of the assassination of former Prime Minister of Pakistan, Mohtarma Benazir Bhutto. It would not extend to carrying out a criminal investigation. The duty of determining criminal responsibility of the perpetrators of the assassination would remain with the Pakistani authorities. The identity of the assassins (criminal responsibility) was not for the Commission to determine. Yet it did just that and more. Since the facts and circumstances of the murder alone were to be determined and a criminal investigation was ruled out, there was no mandate for pin-pointing individual culpability as the report does throughout. The Commission arrogantly usurped this power for reasons that emerge in its report.

The letter promised that the Commission would comprise three eminent persons of experience and a reputation for probity and impartiality. If the persons he selected enjoyed the reputation, it was only in the eyes of Ban Ki-moon. He appointed a political figure, Heraldo Munoz, Permanent Representative of Chile to the U.N., as head of the Commission; Marzuki Darusman, a former Attorney-General of Indonesia; and Peter FitzGerald, a former Deputy Commissioner of the Irish Police. What with international Criminal Courts, the U.N. has an impressive list of qualified and reputed investigators on its list. They were ignored. Munoz has a reputation for flamboyance and publicity, a former diplomat revealed, and is not a career diplomat.

Annexed to Ban Ki-moons letter were the Terms of Reference, which Pakistan accepted. It committed itself to grant freedom of movement throughout the territory of Pakistan, including facilities of transport; free access to all places and establishments relevant to the work of the Commission; freedom of access to all sources of information, including documentary material and physical evidence; freedom to interview representatives of governmental, as well as other institutions and, in principle, any individual whose testimony is considered necessary for the fulfilment of its mandate. More, the Commission may approach third States with a request for cooperation in the collection of material or information relevant to the case and provision of expert personnel.

There is no transparency about funding. Ban Ki-moon wrote: The international commission would be funded by voluntary contributions from Member States. Pakistan has offered to provide seed money to an appropriate United Nations trust fund.

Who were the donors, pray? How much, for instance, did the United States contribute? The President of the Security Council endorsed the deal with alacrity the very next day, on February 3, 2009.

The Commission began its work on July 1, 2009. It travelled to Pakistan in July and September 2009 and in February 2010.

Why did the Secretary-General and the President of the Security Council accept Zardaris request so readily? The U.N. Charter empowers neither to do so. Article 97 designates the Secretary-General as the Chief Administrative Officer of the U.N. He performs functions entrusted to him by its organs (Article 98). He can bring to the attention of the Security Council any matter which, in his opinion, may threaten peace and security (Article 95). Dag Hammarskjold used it famously during the Congo crisis in 1960, but in the interests of peace. He received the mandate he had sought from the Security Council. Its President enjoys no powers save those of the Council (Chs. VI and VII), limited to pacific settlement of disputes and the maintenance of the peace.

Precedents set out in detail in the classic The Charter of the United Nations, A Commentary, edited by Bruno Simma (Oxford University Press, pages 1,221-1,230) relate to matters international. In this one instance, the timorous Ban Ki-moon could not possibly have flouted the Charter and exceeded his powers, even with the approval of the President of the Security Council, unless both had received the blessings of the superpower that runs the U.N. show and on whom Zardari pathetically leans the United States of America, the leader in the war on terrorism.

Zardari took this demeaning step mainly to achieve two objectives to bridle the armed and security forces and the intelligence agencies and please the Americans, and, in the bargain, also malign General (retired) Pervez Musharraf.

The entire operation was conducted without the sanction of a resolution by the Council unlike all the three previous inquiries into deaths.

The U.N. was already seized of the situation in the Congo when Patrice Lumumba was assassinated. On February 21, 1961, the Security Council passed Resolution 161 urging withdrawal of Belgian forces. It decided also that an immediate and impartial investigation be held in order to ascertain the circumstances of the death of Mr. Lumumba and his colleagues and that the perpetrators of these crimes be punished.

On September 18, 1961, the plane carrying U.N. Secretary-General Dag Hammarskjold and other U.N. officials crashed in Northern Rhodesia. On October 26, 1961, the General Assembly passed Resolution 1628 (XVI) appointing a commission of five persons to investigate into all the conditions and circumstances surrounding this tragedy.

The car bombs that killed Lebanons former Prime Minister Rafik Hariri and others in Beirut on February 14, 2005, provided the U.S. with an excuse to humiliate Syria. The very next day, the U.N. Security Council asked Lebanon to bring to justice the perpetrators, organisers and sponsors of the act. Muddai sust, gava chust (The complainant is relaxed, the witness is very active).

Abdullah Hussain, Pakistans Permanent Representative to the United Nations, accepts the report on Benazir Bhuttos assassination from U.N. Secretary-General Ban Ki-moon at the U.N. headquarters on April 15.-AP

There was no request from Lebanon for a U.N. probe. Yet the Security Council asked the Secretary-General to follow closely the situation in Lebanon and to report urgently on the circumstances, causes and consequences of this terrorist act.

Kofi Annan sent a fact-finding mission. Predictably, it reported on March 24 that the Lebanese authorities lacked the commitment and were inept. It pointed a finger of suspicion at Syria.

The report improperly discussed the political situation within Lebanon, as does the report on Benazirs murder. It called for an independent investigation commission backed by investigators and an overhaul of Lebanons security services.

Events took a predetermined course thereafter. On March 29, 2005, Lebanon belatedly informed the U.N. that it approved the decision of the Security Council concerning the establishment of an international commission of inquiry. The Council took that decision on April 7, 2005. It accepted the missions conclusion and set up an International Investigation Commission with executive authority and power to roam at will all over Lebanon.

A recent article by Michael Young of the The Daily Star of Beirut exposed the farce. The U.N. itself has done little to ensure success. The impetus to identify the assassins was gone as the U.S. relations with Syria improved. The Lebanese publics expectations after years of an inconclusive inquiry have hit rock bottom and, with it, the prestige of the U.N.

In all the three cases there was an international dimension and the mandate of a U.N. resolution. In the Benazir inquiry, both were conspicuously absent. Incidentally, Peter FitzGerald is a member of both inquiries, Hariris and Benazirs.

This unique probe had a unique but revealing ending. At the very last moment, Zardari made an urgent request to delay the presentation of the report, a press release from Ban Ki-moons office revealed on March 30, adding, The Commission has informed the Secretary-General that, as of today, all relevant facts and circumstances have been explored, and the report is now complete and ready to be delivered. Only a pliant Secretary-General would have acceded to the request as Ban Ki-moon did. The report was signed and delivered on April 15. The Commissioners were as obliging as Ban Ki-moon.

Nor was that all. Dawn of March 31 reported that the U.N. issued that day instructions to its officials to close down all U.N. offices in Pakistan for three days, apparently in view of a possible reaction to U.N. commissions report on the assassination of former prime minister Benazir Bhutto. The reason behind the delay in the submission of the report is said to be a request by the government of Pakistan to U.N. investigators to include statements of three heads of the states who had cautioned the former prime minister that they had intelligence reports that she could be killed.

Pakistan President Asif Ali Zardari addressing the U.N. General Assembly in September 2008. He did not follow precedent while seeking a U.N. probe into Benazirs murder.-RICHARD DREW/AP

Pakistans Ambassador to the U.N., Husain Haroon, a respected figure, had to cancel his scheduled press conference.

The Commissions members and staff conducted more than 250 interviews within and outside Pakistan. They also met with representatives of other governments and in some cases with their intelligence services. To what purpose it is not revealed since the mandate was so narrow. Many of the persons interviewed by the Commission requested anonymity. Therefore, the report does not include a list of those interviewed.

It was utterly unnecessary, for pertinent information from these sources, including on threats to Ms. Bhutto, nevertheless was already in the possession of Pakistani authorities and eventually came to be known by the Commission. It met representatives of the governments of the U.S., the United Kingdom, the United Arab Emirates and Afghanistan.

The fundamental question brooks no evasion. Was this a police investigation, a judicial inquiry or a political inquisition? Admittedly, testimony was recorded behind the back of the persons concerned. Worse, it was reproduced in the report, harming their reputation, without affording them an opportunity to rebut it by adducing evidence in their defence. This makes a mockery of the entire probe. Conjecture is freely aired, suspicion as freely retailed. Hearsay receives full credence.

The chapter on Facts and circumstances begins conveniently with a whole section on political context, which bears the fingerprints of the diplomat who, to use Sir Henry Wottons famous phrase, lies abroad for his own good. The pun is intentional. Over 10 pages, we are treated to a partisan survey of Pakistans recent politics, which would invite editorial censure if penned by a correspondent.

Sample this: General Musharrafs decision to consent to the United States request for Pakistani collaboration in the war on terror after 11 September 2001 also meant that he enjoyed the firm backing of the United States and its western allies. General Musharraf also had the full support of what is known in Pakistan as the Establishment, the de facto power structure that has as its permanent core the military high command and intelligence agencies, in particular, the powerful, military-run the Inter-Services Intelligence (ISI) as well as Military Intelligence (MI) and the Intelligence Bureau (IB). The capability of the Establishment to exercise power in Pakistan is based in large part on the central role played by the Pakistani military and intelligence agencies in the countrys political life, with the military ruling the country directly for 32 of its 62 years as an independent state. What is all this in aid of? The narrow mandate renders it irrelevant. The language exposes the Commissions politics.

Benazirs dismissal twice as Prime Minister by the President is recorded. Nawaz Sharifs is ignored. He receives short shrift. She fought against the corruption charges levelled against her in Pakistan, Spain and Switzerland, and struggled to have her husband, Asif Ali Zardari, released from Pakistani prison, where he faced charges both for corruption and his alleged involvement in the murder of Murtaza Bhutto. In her final book, Reconciliation, she wrote of the difficulties of being a persona non grata for years in international political circles because of the charges. Her determination to return to full political life in Pakistan led her to engage in a dialogue toward this end with General Musharraf, despite her sharp criticism of his military government. Comment is superfluous.

There is a detailed account of the Musharraf-Benazir parleys. The discussions were facilitated by the governments of the United Kingdom and the United States, which were deeply involved in the process. Both governments gave priority to ensuring a continued leadership role for General Musharraf, as they believed this was vital for the ongoing war against terror, while at the same time they believed the effort could be strengthened with a credible civilian partner heading the government. The United Kingdom played an early role (2004-05) in urging Ms. Bhutto and General Musharraf to engage in discussions and in encouraging the United States to see Ms. Bhutto as a potential partner. Later, the United States would play an increasingly active role in persuading General Musharraf to agree to an accommodation with Ms. Bhutto. Both General Musharraf and Ms. Bhutto had numerous contacts about the process with United States State Department officials at the highest levels throughout 2007.

Throughout the negotiations, General Musharrafs principal argument for insisting that Ms. Bhutto postpone her return until after the election was security concerns. He and his team emphasised the threats against her by extremist groups and the great risks of campaigning. When Ms. Bhutto announced her decision to return to campaign, General Musharrafs team reiterated those arguments to her, as they continued to do after her return.

Read this gem: On 18 October 2007, Ms. Bhutto returned to Pakistan from exile, flying into Karachi from Dubai. Her husband stayed behind, a deliberate decision made on security grounds. People ascribe a different reason for the absence. But this passage is a give-away in a political document.

Politics permeates its every other page. A number of sources close to the situation told the Commission that once back in Pakistan, Ms. Bhutto increasingly understood that by contemplating plans for governing together with General Musharraf, she risked having to share with him the growing public ire against his government. She feared that her on-going political relationship with him could potentially weaken her politically, diminish her legitimacy and lessen possibilities for a solid PPP victory. All this might well be true. Only, it is not for a U.N. body to say it. One ceases to be amused at the persistent recurrence of such gems: The Commission received no compelling evidence that either Ms. Bhutto or General Musharraf believed that she or he still needed the support of the other to achieve their ultimate political goals.

To be sure, the security arrangements and the sheer neglect and worse in the investigations deserve the severest censures. A U.N. probe was not required to expose them. They had been widely criticised. A commission headed by a former judge of the Supreme Court like, say, Justice Fakhruddin Ebrahim, universally respected for his integrity, would have done a better job of pinpointing them without descending to political polemics.

Benazir Bhutto chose Major (Retd.) Imtiaz Hussain, a senior S.S.P. whom she trusted, to serve as her Personal Security Officer from among the candidates the government offered. Major Imtiaz also advised Ms. Bhutto on her own security responsibilities. He noted that he had advised her many times not to expose herself by standing through the escape hatch of the armoured car to wave to the crowds, but she would usually ignore his advice and sometimes express anger at being told what to do. On the day of her assassination, Major Imtiaz did not advise Ms. Bhutto not to stand up through the escape hatch. Did he, indeed, have to, on each and every occasion? Nor is there the mildest comment on her indiscretion in standing through the escape hatch on the roof of her vehicle.

The criminal hosing down of the scene of the crime was reminiscent of a similar hosing after the assassination of Murtaza Bhutto in Karachi. Sources informed the Commission that CPO [City Police Officer] Saud Aziz did not act independently in deciding to hose down the crime scene. One source, speaking on the basis of anonymity, stated that CPO Saud Aziz had confided in him that he had received a call from Army Headquarters instructing him to order the hosing down of the crime scene. Another source, also speaking on the basis of anonymity, said that the CPO was ordered to hose down by Major General Nadeem Ijaz Ahmad, then Director General of MI. Others, including three police officials, told the Commission that CPO Saud Aziz did not act independently and that everyone knows who ordered the hosing down. However, they were not willing to state on the record what it is that everyone knows. This is one of the many occasions during the Commissions inquiry when individuals, including government officials, expressed fear or hesitation to speak openly.

This is permissible perhaps in a journalists report, not in an inquiry. Such passages occur repeatedly to expose the farce that was this inquiry: According to a credible source (paragraph 163) and the source noted above interpreted these actions. His interpretation suffices for the commission. Its own style is wink, wink, nudge, nudge.

It is entirely different from the Scotland Yards investigation, which was professional. A statement issued on January 11, 2008, explained its remit: to assist the local authorities in providing clarity regarding the precise cause of Ms. Bhuttos death. A summary of its report was issued on February 8, 2008: According to the summary, the teams key findings included the following: a) although not possible to categorically exclude the possibility of a gunshot wound, the available evidence suggested there was no gunshot wound; b) Ms. Bhutto died of a severe head injury caused by impact in the area of the escape hatch lip as a result of the blast; and c) the same individual both fired the shots and detonated the explosives (paragraph 180).

It found that despite the hosing down and the decision not to hold an autopsy, the evidence that is available is sufficient for reliable conclusions to be drawn. The Commission seizes on this to criticise the Yard, incredibly, for excusing the poor performance of the Rawalpindi police.

The Commission correctly understood that its job was to attack the set-up and it went about this task with abandon. The preliminary part of the report on the political context is excelled by the concluding one on threats, responsibilities and possible [sic] culpabilities which is beyond its remit. The net thus cast wide, the report proceeds to give us the backdrop of Pakistans recent history from Zias coup in 1977 onwards. This section also reviews the role of Pakistans intelligence agencies (paragraph 189). Four sources of threats are listed and discussed Al Qaeda, the Pakistani Taliban and other local jihadi groups, and elements of the Establishment.

Heraldo Munoz, Permanent Representative of Chile to the U.N., chaired the investigating commission.-KATHY WILLENS/AP

The report says: The Pakistani Taliban now constitutes a significant threat to Pakistans internal stability. The Jihad organisations are Sunni groups largely in Punjab. Members of these groups aided the Taliban effort in Afghanistan at the behest of the ISI and later cultivated ties with Al Qaeda and Pakistani Taliban groups. The Pakistani military and ISI also used and supported some of these groups in the Kashmir insurgency after 1989. The bulk of the anti-Indian activity was and still remains the work of groups such as Lashkar-e-Taiba, which has close ties with the ISI. A common characteristic of these Jihadi groups was their adherence to the Deobandi Sunni sect of Islam, their strong anti-Shia bias, and their use by the Pakistani military and intelligence agencies in Afghanistan and Kashmir (paragraph 207).

But the real target is the Establishment, not in the sense of the expression coined by Henry Fairlie in The Spectator in 1955. The Establishment is generally used in Pakistan to refer to those who exercise de facto power, it includes the military high command and the intelligence agencies, together with the top leadership of certain political parties, high-level members of the bureaucracy and business persons that work in alliance with them. The military high command and intelligence agencies form the core of the Establishment and are its most permanent and influential components.

The PPPs Manifesto for 2007 is cited to show that she was anti-Establishment. After all, she was supportive of the United States approach to terrorism, and it was open knowledge that the United Kingdom and United States were aiding in her return to Pakistan.

Besides, her independent position on the urgent need to improve relations with India, and its implications for the Kashmir dispute, which the military had regarded as its policy domain. Ms. Bhutto had said that she would give the International Atomic Energy Agency access to Dr. Khan, although her statement was twisted in some media stories. Only a partisan and apologist for her would write thus.

Read this: Many sources interviewed by the Commission believe that the Establishment was threatened by the possibility of Ms. Bhuttos return to high public office and that it was involved in or bears some responsibility for her assassination. This exposes the Commission completely.

It is so brazenly violative of its remit and so utterly unsupported by any evidence. It adds: Their analysis is based on years of observation and knowledge of how the Establishment works, although they do not offer any specific evidence with regard to the Bhutto assassination (paragraph 216). A number of knowledgeable and credible persons with whom the Commission spoke cited the pervasive reach, control and clandestine role of intelligence agencies in Pakistani society. In the course of this inquiry, the Commission encountered abundant confirmation of this not only in law enforcement matters, but also in various aspects of the countrys political life during 2007. Wire-tapping was extensive.

This pervasive involvement of intelligence agencies in diverse spheres, which is an open secret, has undermined the rule of law, distorted civilian-military relations and weakened some political and law enforcement institutions. At the same time, it has contributed to wide spread public distrust in those institutions and fed a generalised political culture that thrives on competing conspiracy theories. All pretence of impartiality and adherence to the remit is abandoned.

The report concludes loftily by urging the establishment of a transitory, fully independent Truth and Reconciliation Commission to investigate political killings, disappearances and terrorism in recent years and to provide victims of political assassinations and terrorism material and moral reparations.

The issue is not whether the assessments, the conjectures, the hypotheses, and the homilies are sound or not. The issue is starkly simple. Such passages do not belong to the report of a U.N. inquiry, let alone one on a murder. The U.N. Commission did worse than travel far beyond its remit, which was precise and narrow determine the facts and circumstances of the assassination, that is, of the actual crime. The usual terms on who perpetrated it and whether there was a conspiracy behind it were kept out advisedly. The report explicitly records an agreement: It was agreed with the Government of Pakistan that the International Commission would be fact-finding in nature and not be a criminal investigation. The duty of carrying out a criminal investigation, finding the perpetrators and bring them to justice remains with the competent Pakistani authorities. Whole pages of the report testify to a deliberate breach of this solemn agreement. If the Government of Pakistan does not protest, it is because it sought just such a report.

The comments on history and politics, partisanship towards Benazir Bhutto and ready recitation of hearsay from anonymous sources betray a design. The Commission was working on an agenda set by others and zealously executed it in a command performance. It sought to please both Islamabad and Washington, D.C., but ended up exposing itself thoroughly. The man who handpicked the trio, Ban Ki-moon, the U.S.-backed U.N. Secretary-General, cannot escape blame. He has damaged the U.N.s prestige.

What confidence will U.N. probes command hereafter? Or Ban Ki-moon for that matter? As for the contents of the report, no one would have attached the slightest credence to it if it did not bear the tag of the U.N., which still commands respect despite its abuse as a tool by the U.S. the trio, by their foolish exertions, have tarnished the name of the United Nations.

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