Pakistan on trial

Pakistan on trial

Legal eye http://www.thenews.com.pk/daily_detail.asp?id=156331 Saturday, January 10, 2009 Babar Sattar The writer is a lawyer based in Islamabad. He is a Rhodes scholar and has an LL.M from Harvard Law School India handed over a dossier of information to Pakistan with regard to the Mumbai attacks this past week and repeated its expectation that Pakistan will investigate the leads provided and act against any individuals and groups on Pakistani soil found complicit. But even before Pakistan could begin to respond to the dossier, Indian prime minister Manmohan Singh said the following: "On the basis of investigations carried out (including by agencies of some foreign countries whose nationals were killed in the attack), there is enough evidence to show that, given the sophistication and military precision of the attack, it must have had the support of some official agencies in Pakistan� Terrorism is largely sponsored from outside our country, mainly Pakistan, which has utilised terrorism as an instrument of state policy." Such a statement coming from the chief executive of India reveals the official mindset of our neighbour, the objectives of the Congress government's policy in dealing with Mumbai, and the likely response of the Indian government to any efforts Pakistan makes in trying to bring the perpetrators of Mumbai to justice. The statement is disconcerting, primarily as it comes from Manmohan Singh, who has the image of a visionary statesman less disposed to dealing in rhetoric. Pakistan should take stock, as this is not another angry outburst of a populist leader but a clear and considered policy statement coming from the highest Indian executive office. The statement is irresponsible because it impeaches Pakistani agencies for aiding the Mumbai attacks while also conceding that such accusation is not supported by evidence but is merely conjecture. It is unfortunate that India has chosen to articulate state policy by borrowing the rightwing argument � both in India and in Pakistan � that given the sophistication of the operation, state agencies (from either country) must have been involved. State agencies are capable of, and often involved in, all kinds of heinous acts. But it is reckless for India to prejudge the conclusion of a criminal investigation presently underway in both India and Pakistan and allow assumptions and biases to inform its policy. The statement reflects a myopic and contradictory policy. It suggests that India is not interested in an open-ended investigation or in discerning facts, but merely in gathering information that supports the conclusion that it has already reached: that Jamaat-ud-Dawa, Lashkar-e-Taiba and Jaish-e-Mohammad carried the Mumbai attacks while being supported and trained by the ISI; that there is no distinction between serving and retired personnel of intelligence agencies as all function with the blessings of the Pakistani army; and in the ultimate resort Pakistan should be branded a terrorist state for it is controlled and run by "a rogue army with a finger on the nuclear button." Such policy seems contradictory if we believe that the Indian government is actually interested in bringing the perpetrators of Mumbai to justice. After all, why would you accuse a "state" of being an instrument of terrorism if you earnestly wish its government to take action against any elements within the state that are found involved in terror acts? What political or diplomatic space has Mr Singh left the government of Pakistan to try and cooperate with India in getting to the bottom of Mumbai? One logical explanation for the Indian prime minister's statement is that the Congress government has learnt from the mistakes made by the Bush administration in launching the War on Terror against Al Qaeda. India does not wish to identify a faceless non-state actor as the enemy responsible for Mumbai, which cannot be held accountable easily and against which victory in a war cannot be declared swiftly. It is politically much more expedient to identify Pakistan as the face of terror � by refusing to distinguish between state and non-state actors � and then beat down on the country internationally. In the interest of regional security and peace, it would have been prudent for thought leaders in India to create an environment where it was possible for India and Pakistan to cooperate in the struggle against terrorism. Unfortunately, given the history of the two countries and the proclivity of opposition parties to capitalise on what can be dubbed as the government's weakness in the realm of national security, such a forward-looking long-term approach to confronting terror would produce no immediate political mileage domestically. But if tough talk with Pakistan and an unrelenting international diplomatic offensive against such a "troublesome" neighbour becomes the gauge of the Congress Party's policy against terror, declaring success before the national elections would become much easier. India has officially made out a case against Pakistan � and not "elements" within Pakistan � and has also sold this thesis to its public. The evolved public opinion in India will now constrain the ability of the Indian government to accept as satisfactory any Pakistani response that doesn't implicate the ISI in the terror plot and offers up citizens to be tried in India. That the Pakistani government will most likely be unable to satisfy the Indian government's expectations over Mumbai should inform our state policy, but at the same time not diminish our resolve to fulfil our legal obligations and protect our security interests. Pakistan's policy in investigating the Mumbai episode must be informed by the following factors: One, the carnage of civilians in Mumbai was a crime against humanity, and to the extent that citizens of Pakistan were involved in planning, facilitating, supporting or orchestrating the atrocity, their actions are an offense against Pakistan's own laws as well. Thus, Pakistan must carry out a comprehensive and transparent investigation into the crime and punish all those who are implicated in practicing terror. Not because India is bringing pressure to bear on Pakistan, but because (i) we have a legal obligation to do so under our own laws, (ii) we have an international obligation to do so as a responsible nation-state, and (iii) we have an urgent need to exercise control over religion-inspired militants who threaten citizens' security by claiming innocent civilian lives and jeopardise national security by rendering us vulnerable to undesirable armed conflict with neighbours. Two, Pakistan has been put on trial by India and the jury is not hawks in India or even the Indian government, but our peers in the international community. We should forget about reviving the peace process with India anytime soon and instead focus on vindicating our international image as a responsible nation-state not teetering on the precipice of anarchy and terrorism. Our investigation into the Mumbai attacks must have one purpose: to unveil the truth, however embarrassing it might seem in the immediate-term. It has been said before and it must be repeated again. It is not the Pakistani identity of Ajmal Kasab that makes Pakistan guilty of having a hand in Mumbai. But it is the misguided inclination to hide unflattering truth born of false pride and misperceived patriotism that could make us complicit. The Indian media's point-scoring will continue as pieces of the terror plot are found in Pakistan and our national ego will take a temporary beating. But we cannot allow our ego to become a sanctuary for felons who bring the rest of us a bad name. Three, the world is watching us, and what is at trial in addition to our resolve to fight terror is the capability and credibility of our criminal justice system. The team of investigators staffed on the Mumbai case must comprise our best professionals. The investigation must neither hide facts nor concoct evidence to reach desirable solutions as often happens in high-profile criminal cases. Any evidence found against an individual in Pakistan must be adduced and recorded in accordance with procedural due process, so that it holds up before an independent judicial tribunal and actually leads to convictions. In short, the integrity of the investigation and any trial that follows must be beyond reproach. And finally, we must not allow turf battles within Pakistan to influence the manner in which we address the Mumbai imbroglio. The decision to send the director general of the ISI to India and its retraction was partly a consequence of the continuing tug-of-war between the elected civilian government and the army over control of state authority. Likewise, the decision to sack Mehmud Ali Durrani is either a manifestation of the reported wrangle between the president and the prime minister or an excuse to dump a prominent member of the national security team who was widely perceived as a US stooge. Notwithstanding the domestic considerations that inform such decisions, such faux pas provide India an opportunity to ratchet up its international propaganda against Pakistan as a country in denial. Manmohan Singh's policy statement leaves little doubt that his government will continue to focus all its energies on framing the state of Pakistan for the events of Nov 26. To ensure that Pakistan does not end up becoming an additional victim of the Mumbai attacks, our actions must be honest, impartial, measured and wise and our civilian and military power wielders must be in complete harmony over how to proceed with the Mumbai investigations. Pakistan is in the dock and our best defence is not counter-propaganda, but finding and revealing the truth. Email: sattar@post.harvard.edu