By Sardar Qasim Farooq Ali
If Talleyrand had not betrayed Napoleon, Waterloo would never have happened and instead Russia and France could have dominated Europe indefinitely. In our times, there are Talleyrands and Bushs in India and Pakistan as well. Irrationality, irresponsibility, misguided patriotism and compulsive mistrust are ingredients that still govern the India Pakistan relationship. Broadly speaking, how is it that despite UN Resolutions, Anti Terror Policies, EU legislation on cooperation to combat terrorism, Indo Pak commitment to the UN to effectively combat terrorism, we still act as ‘enemy states’.
Unfortunately, in the circumstances, the question whether Pakistan is privy to the Mumbai incident or not is an absolute irrelevant factor. It is India’s case, Her bone of contention is that her nuclear armed Muslim packed neighbor has ordered or orchestrated the carnage. Thus what is being asserted is that Pakistani authorities, which essentially include the ISI, Government and Army, sent terrorists to Mumbai to literally paint the town red. Conversely, Pakistani establishment’s attitude towards India is no better. Ravaged, bleeding Pakistan with one-third of her western territory under siege and Karachi itself burning with terrorists replaying the Mumbai carnage, who do our agencies blame, but India. Hence its tit for tat.
The high-water mark in Indo Pak relation is not resolution of outstanding issues, it is down turn tension, it is Kashmir, Indus water treaty, Siachin, Kargil, Dhaka, Tashkent Agreement, Sir Creek, the Baluchistan insurgency and Taliban.
Add to this the global agenda of America and its policy of self-interest, culminating in the execution of an agreement on long term strategic partnership with India on nuclear weapons and a joint venture with Pakistan on the war on terror, and things become even more complicated.
However, if one is to think of solutions to the complex problems, it appears that to start with, both countries would need to rely upon and adhere to certain internationally recognized principles of law. A plausible starting point is International Law. The principle of State Responsibility must be adopted and adhered to in the first place. India must accept that until it is established beyond doubt that the Pakistani State apparatus was used to effectuate the Mumbai bombing and that Pakistan is guilty of breach of good faith and negligence in suppressing terrorism on Indian soil, India must, abiding by the principle of Objective Responsibility, not hold Pakistan responsible.
Furthermore, for India to prove that Pakistan is in principle responsible for the consequences of what happened in Mumbai, a causal link between the damage caused by the terrorist act and holding Pakistan liable has to be established beyond doubt. This established principle of International law is the Culpa Doctrine. It should first be assessed whether the Mumbai incident was reasonably foreseeable by Pakistan and whether it can be attributed to want of care on the part of Pakistan. Hence, it must be appreciated by India that no government can be held responsible for the act of rebellious or terrorist bodies of men committed in violation of its authority.
Another vital factor that seems to have been conveniently forgotten is that, immediately after 9/11 and the Afghan invasion, the UNSC unanimously adopted resolution number 1373 to fight terrorism binding all Member States (India, Pakistan included) to cooperate, prevent funding and support for entities or persons involved in terrorism, deny safe haven to terrorists, establish terrorist acts as serious criminal offences.
Clause 3(c) of the Resolution states: The Security Council “Calls upon States to: (c) Cooperate, particularly through bilateral and multilateral arrangements and agreements, to prevent and suppress terrorist attacks and take action against perpetrators of such acts”.
Since Pakistan and India are Member States and the UN exercises jurisdiction thereon, in view of Chapter VII of the UN Charter, Resolution 1373 is applicable and enforceable therein. Accordingly, Pakistan took concrete measures and improved her anti terrorism legislation, broadened the scope of information-sharing with America and commenced war against terrorists in her northern areas. Furthermore, a reconciliatory approach was adopted with India, restrictions on grant of visas were relaxed and a regular bus service from Wagha border started. The narrow minded fundamentalist rigidity on Kashmir issue was substituted with a dynamic case management approach.
India too didn’t lag behind. Although still stubborn on issues like water sharing and Kashmir, she dissipated the nose dive approach and encouraged greater contact between citizens for sharing our centuries old mutual cultural values. Unfortunately, however, the blame game has still persisted despite partition over 60 years ago. Nonetheless, these Confidence Building Measures gave way to the Havana Initiative of 2006 when our leaders agreed to establish a joint anti-terror mechanism and restart the peace process, which came to a grinding halt after the 11 July Mumbai train blasts. Unsurprisingly, the Indian investigation itself exonerated Pakistan.
However, what needs attention is that whenever any incident occurs in India, Pakistan is terrorized. This pattern has been witnessed, inter alia, after the Samjhauta Express blasts and Parliament bombing. Each time India completely withdraws from any ongoing constructive process and Pakistan is incessantly accused. Instantly overzealous, scrupulous and irresponsible reporting ensues. Unilateral investigations are carried out by India, eventually exonerating Pakistan. Each time, the Pakistani proposal for joint investigation is, outright rejected by India’s external affairs minister Mr. Mukharjee, although in breach of Resolution 1373, on the evasive ground that Indian law does not allow any foreign country to jointly probe in India. While I admit that sovereignty and territorial jurisdiction of a State must be maintained, a joint investigation being conducted against a common enemy, does not logically trespass sovereignty.
Similarly, the establishment of a Joint Commission which caused the signing of an Agreement on “Reduction of Risk from Accidents relating to Nuclear Weapons” presented some degree of hope that bilateral relationships would be promoted. However, like before, once the Mumbai incident occurred, all mutual and bilateral relationships were compromised and India-Pakistan relationship went back from being productive to destructive, ad infinitum. Hence the tug of war situation.
The point being made is that this mentality of mutual mistrust, terror diplomacy and blatant disregard for International law, Conventions and Resolutions has to be substituted with objectivity and reasonableness. If India and Pakistan want prosperity they ought to have regional stability first. Without stability neither will ever be prosperous. This key factor was first highlighted by Mr Bhutto during the Simla Agreement and later by Shaheed Benazir Bhutto whose foreign policy was geared in this direction. However, if both the countries cooperate with one another within the framework of the United Nations Charter and the guidelines stipulated by Resolution 1373 there seems to be no reason why India and Pakistan cannot succeed in fighting terrorism and maintaining a healthy working relationship.
India must realize, and the stress on India here is purely based on her actions, that Pakistan is facing, perhaps, more difficulties than India, but Pakistan neither launches a media and diplomatic war against nor defames and pressurizes India. The fact that India is an emerging regional market does not in the least grant her the right to threaten us with preemptive strikes. America could get away with this for obvious reasons, but history and reality teach us that India would surely falter for the worst, if such thoughts are translated into action.
Furthermore, as is being seen, Pakistan is already taking effective steps to deter the threat of any future attacks on India. The government of Pakistan has, prima facie, ignoring a Court ruling, and abiding by its commitments under UNSC Resolution 1267, banned Jamaat-ud- Daawa and Lashkar-e-Taiba.
Perhaps it’s time we learnt from and follow in the footsteps of Europe, where despite centuries old rivalries, nations like the French, English and Germans have pooled together their resources for the common good and are cooperating on a plethora of issues including terrorism.
The writer is a Lahore-based lawyer. Email: firstname.lastname@example.org
Source: The News, 13th January, 2009