Timely message from Pakistan sobers Modi govt

ISLAMABAD: After a crystal clear and timely message reached New Delhi on Monday from General Headquarters Rawalpindi, the Modi government has come down crashing to reality and decided to first step up “diplomatic offensive” against Pakistan to have it declared a “terrorist state”, and secondly commanded its National Investigation Agency (NIA) to take over the probe into the Uri incident, where 18 Army personnel were killed in an attack on an Army camp. 

The NIA would collect DNA samples of the terrorists and look at the commonalities in the Uri and the Pathankot air base attacks in January. Except for a reportedly cross border firing incident across the LoC check post, the “lets declare war on Pakistan”, Modi brigade has taken a step back. The electronic Indian media meanwhile, continues to scream and screech.

COAS Gen Raheel Sharif had on Monday declared that the Pakistan Army is "fully prepared to respond to the entire spectrum of direct and indirect threats", and that it was fully cognisant of and closely watching the latest developments in the region and their impact on national security.

"Pakistan’s armed forces together with their resilient nation have surmounted every challenge and will thwart any sinister design against integrity and sovereignty of the country in future as well," the COAS said.

Meanwhile, Ahmer Bilal Soofi, former caretaker Federal Law Minister and an international lawyer of repute told The News that it was finally time to put in place ‘Legal Diplomacy’,

“Absolutely, legal diplomacy should be the course that ought to be followed in the Camp Uri incidence instead of threatening postures.  Indians want to talk about terrorism only with Pakistan and Pakistan wants them to open talks on Kashmir. These are well defined political agendas and, notwithstanding earlier some degree of personal comfort between the two prime ministers, things haven’t moved forward”, he remarked.

He added that lots of track II dialogues have taken place; informal envoys, including the retired foreign service officials, businessmen and others have attempted political matchmaking between India and Pakistan.

“But the recent rise in rhetoric by the two prime ministers tells you that things aren’t going anywhere. Add to this the Uri camp attack and we are facing hurling of threats from the Indian side to use force inside Pakistan! Which would be in utter violation of the UN Charter and worst will equip Pakistan with the right to respond in reprisal. However, if sanity prevails that Uri will also require a comprehensive legal investigation to identify the suspects”, he pointed out.

Soofi stated before Uri camp attack, Pakistan and India were conducting Mumbai case, Pathankot investigation, Samjhota trial and Yadev’s investigation. All of these involve legal processes. “Each of them is an independent and a separate case in which different teams of lawyers and investigators on both sides are working and strategising independently without consultation with each other. Each side accuses the other of protecting its interest through delays in the trial or investigation. Several different courts are, or will be, involvedin almost all the said cases. The criminal law of both states is being invoked,” he recalled.

The law of evidence, with all its qualifiers, is being used for investigation and collection of evidence. It has to be transferred through a formal legal process to make it admissible. Witnesses for each trial are scattered in two different jurisdictions. There are issues with recording their testimony and cross-examining them. There are issues regarding the legal basis and manner of the collection of intercepted calls and voice samples. There are issues such as why not to file a half-baked investigation as a challan, need deliberation.

Explaining it further, Mr Soofi who is also the founding President of Research Society of International Law argued that in the all four matters (Mumbai, Pathankot, Yadev and Samjotha) the common legal feature is that all of them are transnational crimes, in which the crime of terrorism has been conspired in one jurisdiction and executed in the other. In certain instances, there are some links with third countries as well.  The police officers in both the countries investigating these cases have never interacted to match notes.

“They have never shared evidence collected during the investigation with each other in joint investigation meetings – the concept of joint investigation meetings doesn’t exist between India and Pakistan. The prosecutors in Mumbai have never met each other, whereas, for a crime which has been tried in two different jurisdictions, preliminary meetings of prosecutors would otherwise be a certainty so as to divide the scope of prosecution and charge, and also to divide the suspects for indictment”, he pointed out.

At a diplomatic level, the ‘co-operation’ has been more for score-settling than for genuine legal requirements. The dossiers given to Pakistan’s High Commission were all inadmissible and of no worth for the purpose of the court. Yet, the giving of the same was postured as if Pakistan has been provided with everything and it is not doing enough on its part.

“The diplomats are not lawyers and we should not expect that, despite their sharpness, they will understand the niceties of the legal processes, and, that too, at the trial level, which is said to be the most technical and, perhaps, a very perplexing area of law even for practicing lawyers”, he said.

There is a political side to each aspect of this trial and Pakistan should be candid enough to admit as much. But, at the same time, the legal steps that are required to be taken are simply required to be taken.

“And this needs to be understood by the diplomats on both sides. If the evidence received from the other state is not good and not court-worthy, then the state cannot, through an executive miracle, improve its quality and win a conviction to satisfy the sentiments in the other state. A state cannot guarantee an outcome of a trial because it cannot, and should not, proclaim influence on a judge”, he said.

Soofi further stated that another aspect is that Yadev’s case represents intervention by a state actor into a neighbouring state and in this case of Yadev and his network (subject to evidence), India as a state will bear responsibility under international law.

“This is because Yadev’s acts are legally attributable to his employing entity, which is the sub-set of the Indian Government. On the other hand, in cases of Mumbai and Pathankot, the offenders are neither state actors nor officials. They are non-state actors, albeit Pakistani nationals, who conducted unauthorised and unlawful actions. Though, in law, nationality is not the basis of responsibility, Pakistan still continues to bear the responsibility of prosecuting them properly”, he reminded.

Soofi has remained a proponent of showing to the world the updates on the trial specially Mumbai. He says that Pakistan has taken lots of steps  to demonstrate and signal to all non-state actors that they will have no oxygen in support of their irresponsible acts.  For example, Government of Pakistan instructed his attorney general to contest request of relief by the accused at every step. It opposed their bail applications and, several were rejected before it was finally granted. Suspects’ appeals for mistrials and several other procedural reliefs were opposed in the High Court, and even at the Supreme Court, by the Government of Pakistan.

Legally speaking, Mumbai, Pathankot, Yadev and Samjotha remain trials and cases. It is in the above context that Soofi suggests that both the governments should  embark on the route of legal diplomacy, where the states can communicate with each other in legal terms, in the language of the procedure, and move forward on other political issues like Kashmir and trade etc.