An issue that united India and the United States in the recent past — fighting Pakistan-sponsored terrorism — now increasingly divides them. Last week, the U.S. State Department determined that Pakistan’s Inter-Services Intelligence (ISI) and two of its former director generals have immunity from prosecution in a case filed in New York by the families of American victims of the 2008 Mumbai attacks. The Department of Justice then filed “a statement of interest” on December 17 in the New York district court corroborating the State Department decision.
The legal argument forwarded says the ISI is a “fundamental part” of the Pakistani government and therefore comes under the Foreign Sovereign Immunities Act. For good measure, the statement ruled out any “exceptions” or “judicial review” of the decision. Ahmed Shuja Pasha and Nadeem Taj, two former ISI chiefs named in the case, can rest in peace for they will never be called to a U.S. court. Presumably, the five other serving and retired majors of the Pakistani army named in the suit will also benefit from this legal largesse.
The U.S. government’s determination, however deeply based in law, has stung India to the core. India called the U.S. decision “a matter of deep and abiding concern” and “a cause of serious disappointment,” especially given America’s regular shout-outs about dismantling terrorist infrastructure in Pakistan. “It cannot be that any organization, state or non-state, that sponsors terrorism enjoys immunity,” India said bluntly.
The U.S. statement, a huge affront to Mumbai victims and the Indian government, also rubs some salt into the wounds. Exceptions to immunity can apply, the legal minds noted, only if the foreign state in question was designated a state sponsor of terrorism, which Pakistan has not been. And so went the circular logic. Any country with one-tenth the record of Pakistan would be labelled by the State Department as a terrorist state to be sanctioned, embargoed and vilified ad nauseam.
The Davis case
Was there a quid pro quo aside from the obvious need to appease Pakistan? Pakistani investigative journalist, Amir Mir, has reported that immunity for the two ISI generals was worked out in February 2011 after the Raymond Davis affair had rocked U.S.-Pakistan relations a month earlier. Pakistan’s Army Chief, Gen. Ashfaq Pervez Kayani, demanded that court summons against Pasha and Taj be withdrawn if Washington wanted Davis back.
The U.S. decision is more evidence of its twisted relationship with Pakistan where no amount of correct diagnosis seems to lead to a permanent course correction. Pakistan relentlessly exploits America’s dependency, America buys Pakistan cooperation with billions, cyclically even recognises the problem, tries to force change mainly with public hectoring and then, tired from the effort, falls back into the pattern citing national security interests. India is collateral damage and a net loser in this game.
The U.S. Administration has lately gone into high gear to repair relations with Pakistan, the same country its senior officials were implicating in major terrorist attacks over the last three years. Even though there is little evidence that Pakistan’s decision-making establishment has turned a new leaf, the Americans are acting as if it has. Pakistan’s military-ISI combine has successfully used the civilian leadership to soften its image but its core objectives remain the same — manipulating Afghanistan’s future to gain “strategic depth” and constricting India role.
On Afghanistan
What has changed are American objectives — from defeating the Taliban to making peace with them, from forcing Pakistan to behave as a responsible stakeholder to appeasing its generals in the larger pursuit of bringing U.S. troops safely back home by 2014. The Obama Administration has been quietly shifting policy priorities over the year, starting with its decision in September to issue a waiver for Pakistan without so much as a credible explanation to allow $2 billion in military aid to flow.
The decision to give a waiver came after a visit to Washington by ISI chief Zaheerul Islam, in August. Since then there has been a flurry of working group meetings, visits by Pakistani foreign and finance ministers and barbecues. The U.S.-Pakistan Defence consultative group met in Islamabad earlier this month for the first time since the Osama bin Laden raid to discuss new arms purchases. The rhetoric about Pakistan from senior U.S. officials has also toned down considerably. They are quiet about Pakistan’s refusal to act against the Haqqani network.
Washington has also watched approvingly Pakistan’s engagement with Afghanistan, which again cuts India out. In fact, the new “peace plan” worked out reportedly by Kayani and President Hamid Karzai appears designed to reduce India’s role, raising questions about the India-Afghanistan strategic pact and its relevance. U.S. and Afghan officials have promised to take Pakistani concerns about India on board. Broadly, the Pakistani security establishment sees a post-2014 scenario Afghanistan in which the Taliban will control southern Afghanistan while the Haqqanis dominate the southeast — both assets and vehicles of influence for Islamabad. Jihadists targeting Kashmir could once again find safe havens in those parts just as Pakistan will enjoy a measure of deniability.
This a bad movie that has been played and replayed over decades. And it doesn’t have a happy ending.
(Seema Sirohi is a columnist based in Washington DC.)
