Pakistan: the impasse over evidence

Nirupama Subramanian

India is hoping its efforts to rope in the world to put pressure on Pakistan will yield results. Pakistan is hoping the international community will soon tire of Indian demands and persuade it back to the negotiating table.

A few days ago, Pakistan’s respected English newspaper, Dawn, and the country’s biggest private television channel, Geo, came out with separate investigations showing Ajmal Amir Imam ‘Kasab’, the surviving gunman from the Mumbai attacks, as a resident of Faridkot village in Pakistan’s Punjab province. According to both the daily and the television, his parents lived there, and had recognised the gun-wielding youth who was caught in Mumbai as their son. Geo said he was last seen in the village four months ago.

Later, the television channel produced a Lahore-based lawyer who said he had been retained by Ajmal’s parents after he went missing from Nepal in 2006. The lawyer accused Indian intelligence agencies of picking up Ajmal from Nepal, and said a petition by him to this effect was pending in a court in that country.

Earlier this year, the Pakistan government ordered a police investigation on the basis of a newspaper report about a case of honour killings, in which five women were allegedly buried alive in Balochistan.

In Parliament, a committee is examining, on the basis of a newspaper report if Chief Justice Abdul Hameed Dogar, appointed in place of the deposed Iftikhar Chaudhary, used his position to get his daughter 21 extra marks in her school-leaving exam so that she could apply to medical school. Opposition leaders including Nawaz Sharif and the legal community have already demanded Mr. Dogar’s resignation.

The other day, Prime Minister Yusuf Raza Gilani took “serious note” of an incident reported by the media of an “exorcist” torturing two women to death in the Sindh hinterland.

Yet the government has declared reports in the Pakistani media linking Kasab to Faridkot village, in the Depalpur tehsil of Okara district in southern Punjab, an insufficient basis on which to launch its own investigations into his nationality, his activities in this country and his alleged links to the Lashkar-e-Taiba.

Under pressure from India and the world to act against the perpetrators of the Mumbai attacks, Pakistan’s response has been to ask New Delhi to present evidence of the attackers’ links in this country through “diplomatic channels.”

President Zardari brushed off the media reports as taking “different positions” on Kasab’s nationality, while Foreign Minister Shah Mahmood Qureshi has demanded that India present evidence through “diplomatic channels.”

At least one Cabinet member, Defence Minister Ahmed Mukhtar, has said that unless evidence was made available to bring charges against Hafiz Saeed — placed under house arrest after the U.N. Security Council designated him and his Jamat-ud-dawah as “terrorist” and a front of the already designated Laskhar-e-Taiba — the government would have to let him go after 90 days. This is the maximum permissible detention under an ordinance for pre-emptive arrests called the Maintenance of Public Order. If the detention has to be extended, it would have to be renewed by a court.

With Mr. Saeed listed by name as a “terrorist,” it is questionable if Pakistan can let him walk free after 90 days, as it has done several times in the past. But it is quite obvious that in an overheated atmosphere of nationalism in which India’s image as dushman humsaya (enemy neighbour) has come back to the fore, standing firm on the demand for evidence is one way for the government to reassure domestic constituencies that there will be no capitulation to New Delhi.

Meanwhile, it can claim that whatever action it took against the JuD was not to please India but because the U.N. demanded it. Paradoxically enough, India is using the same argument to make the case that Pakistan should be taking much more decisive action. Indian officials are saying that Islamabad must do more to fulfil its responsibilities as a U.N. member-state, and that the Security Council listing of the JuD is its chance to act without appearing to be bowing to pressure from New Delhi, and not just against the alleged perpetrators of the Mumbai attack. The question, they say, is no longer one of evidence about a particular incident, but of intentions: if Pakistan was sincere about acting against those who planned and carried out the Mumbai carnage, it would act now to “put out of business permanently” the entire infrastructure of militancy so that terrorists can never plan and carry out another terrorist attack from its soil. In effect, what India is asking Pakistan to undertake is a DDR — disarmament, demobilisation and reintegration — as required in post-conflict situations.

Pakistan says it has met all the requirements of the Taliban/Al-Qaeda Sanctions Committee of Security Council resolution 1267 against the JuD — arms embargo, funds freeze, and travel ban — and more, by keeping Mr. Saeed under house arrest. The Indian side describes this as a misleading or a “narrow” interpretation of 1267, and says it must read with a dozen or so others fine-tuning it since its adoption nine years ago.

For instance, resolution 1269, also of October 1999, asks states to “take…appropriate steps to…deny those who plan, finance, or commit terrorist act safe havens by ensuring their apprehension and prosecution or extradition.”

Resolution 1566 of 2004 refined this further by calling on states “to cooperate fully in the fight against terrorism, especially with those states where or against whose citizens terrorist acts are committed, in accordance with their obligations under international law, in order to find, deny safe haven and bring to justice, on the basis of the principle to extradite or prosecute, any person who supports, facilitates, participates or attempts to participate in the financing, planning, preparation or commission of terrorist acts or provides safe havens…”

Resolution 1624 of 2005 goes a step ahead, calling on states to do this by adopting “such measures as may be necessary and appropriate and in accordance with their obligations under international law to: a) prohibit by law incitement to commit a terrorist act or acts; b) prevent such conduct, and c) deny safe haven to any persons with respect to whom there is credible and relevant information giving serious reasons for considering that they have been guilty of such conduct.” The Indian argument is that these resolutions make it mandatory for Pakistan to bring charges against Mr. Saeed, at the very least for incitement, on the basis of the JuD leader’s hate speeches against India.

At the moment, the chances of Mr. Saeed’s prosecution seem remote. Political parties want the “social worker” released. The JuD has not been proscribed yet. Its Muridke headquarters has not been sealed. The organisation’s website is still functional. Unprecedented for someone who has been declared a “terrorist,” Mr. Saeed is only under house arrest. And no one knows what happened to Zaki-ur-Rehman Lakhvi, the second of four persons listed by the U.N. (the third, Haji Muhammed Ashraf, is reported to have died of illness in a Karachi hospital some time ago, while the fourth, Mahmoud Mohammed Ahmed Baziq, is said to live in Saudi Arabia). It was reported that Lakhvi was detained during a military raid on a Lashkar camp in Pakistan-occupied Kashmir, but there is no confirmation of his arrest.

It also seems unlikely that India will give in to Pakistan’s demand for evidence, despite an assertion by the External Affairs Minister Pranab Mukherjee in an interview that it could be shared once the investigations are complete. Indian officials say previous attempts at evidence sharing with Pakistan have been dead-enders, citing the fate of India’s “most wanted” list as the most well-known instance. The widely reported U.S. experience of sharing intelligence with Pakistan about movements of militants in the tribal areas only to find they have been tipped off, is one reason for Indian unwillingness to share evidence from Mumbai and work alongside Pakistani investigators in a “joint investigation,” as offered repeatedly by Pakistan.

The situation has the makings of a long impasse. India is hoping its efforts to rope in the world to put pressure on Pakistan will yield results. Pakistan is hoping the international community will soon tire of Indian demands and persuade it back to the negotiating table, or that Indian anger will cool off once the parliamentary elections are done. Only visionary leadership on both sides and statesmanship of a high order can break this impasse. Ratcheting up the rhetoric, on the other hand, carries the risk of unintended consequences.

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