Archive | May, 2017

Foolish thoughts

19 May

Our lives are too short

And this world far too cruel

To live life as anything

Other than a fool.

 

Alas, what is foolish?

A word, misunderstood

Enduring pain, enjoying pleasure

Only a fool truly could!

 

“Hush now, be silent

Speak only the way you’re taught

A silly word here,

One there – with danger fraught!”

 

So for long as we remain

Part of the ruthless system

We will forever be defined

By binaries: Hindu, Muslim or Christian?

 

These binaries engulf us

Allowing us to surrender self-definition

What we are is nothing more,

Nothing less than society’s volition.

 

When we question ourselves,

Or the world we reside in

We are told, yet again

Our options are dying or resigning.

 

 

 

 

Yadhav & the ICJ

14 May

“A lie gets halfway around the world before the truth has a chance to put its shoes on”. The saying goes something like that though different versions are attributed to different people. Information, for better or for worse, has an inherent capacity to be taken out of context and moulded to fit whatever paradigm a state is trying to develop. Pakistan, due to its lacking understanding and capacity with regard to international law, is often unable to comprehend the significance of such information in the international sphere. India, however, has been building its legal capacity to utilize international law to its strategic advantage. The Indian spin on the International Court of Justice’s “pre-provisional” measure illustrates exactly that.

 

India and Pakistan find themselves embroiled in some form of hostility or conflict quite often. Perhaps, this is why both states have intentionally ousted the ICJ’s jurisdiction, with regard to contentious cases between themselves or other members of the Commonwealth. This is the effect of our declaration, and India’s, under Article 36(2) of the ICJ Statute. It is because of this exclusion of the ICJ’s jurisdiction in contentious cases that India has taken the Article 36(1) route.

 

Both India and Pakistan are States Parties to the Optional Protocol to the Vienna Convention on Consular Relations 1963. Article I of this Optional Protocol stipulates: “Disputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the Court by an application made by any party to the dispute being a Party to the present Protocol”. It is under this provision that India has invoked the jurisdiction of the ICJ with regard to Yadhav’s case.

 

Accordingly, Article 36(1) of the ICJ Statute clearly provides: “The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force”. At this stage, it would be premature and rather irresponsible to claim that the Court will most certainly assume jurisdiction. This is particularly important considering India’s claims that it has “won” against Pakistan, presenting some sort of illusion that it has argued at a stage of proceedings. In reality, only a generic, routine statement has been issued by the President of the ICJ and if one is to review all case law in this regard, it is clear that the statement issued by the President of the Court is not a stay order but a request to maintain the status quo. This request has not only been directed at Pakistan but also at India. It is a mere statement to the effect that both parties maintain the status quo – nothing more and nothing less.

 

The assumption of jurisdiction by the ICJ is yet to be seen. Once an application is filed, there is a customary “oral hearing” – in fact, there may be a single hearing or multiple depending on each State’s legal strategy. This oral hearing is awaited and in the absence of notice and appearance of both parties for the oral hearing, there is no provisional measure that can be granted. Pakistan has only recently received notice and therefore, to state that provisional measures have already been granted is entirely baseless and factually incorrect.

 

In the event that the ICJ does assume jurisdiction, which is not entirely unlikely considering precedent in this area, this may not be as awful for Pakistan as the Indian media would have us believe. The fact is that Yadhav confessed to not only sabotage but much more than that – he was tried and convicted in accordance with domestic law, and his sentence is a culmination of those lawful proceedings. The Pakistani case against Yadhav is perhaps a lot stronger on merits than India’s case against Pakistan in this regard. Having said that, regardless of the outcome or whatever fears we may have in appearing before the ICJ, it cannot be emphasized enough that Pakistan must fully participate at all stages of the proceedings.

 

What many are neglecting is the fact that Pakistan and India have, between themselves, a Bilateral Agreement of 2008. Clause VI of this Agreement clearly provides for denial of consular access/assistance in cases where national security is concerned. Therefore, it can be argued that India has voluntarily, through bilateral agreement with Pakistan, committed itself to the provisions contained within the 2008 Agreement. The international legal principle of pacta sunt servanda entails that India must honour and keep its agreements. The fact that Yadhav was not an ordinary Indian citizen, or an ordinary Indian diplomat is key in Pakistan’s arguments before the Court – that is the crux of our national interest ground and must be maintained throughout.

 

In any case, even if the case proceeds onto merits and a judgment is secured against Pakistan, we should be well aware of precedent before the ICJ and how various States have reacted in the event that provisional measures have been issued by the Court and those very States have refused to comply with them, citing domestic law as a justification for the same. The LaGrand case before the ICJ, between Germany and the US, concerned temporary court orders of the ICJ by which the Court directed the US to halt the execution of two German nationals, the LaGrand brothers, who had attempted an armed bank robbery in Arizona. The US executed both brothers in spite of the fact that the ICJ had issued provisional measures, which it deemed to be binding. The US’ argument was that the Vienna Convention 1963 does not grant rights to individuals but to States. In this regard, Pakistan too can argue that the ICJ cannot be turned into a court of criminal appeal, particularly where matters of sovereignty and national security are concerned.

Anti-Pakistan?

9 May

The fear of big, bad India is a key factor in policy formulation in Pakistan, as it has always been. Whether it is our “Kashmir policy”, our interference in Afghanistan, or what is supposedly to be the stimulus for economic progress and growth in Pakistan, i.e. CPEC, every step we take, whether it is forward or backward, is shaped by security considerations tied to our neighbour.

It is unsurprising then that we would go so far as to glorify terrorists in our media. The same establishment that abducts bloggers, at its whim and fancy, and is feeding off a huge proportion of our budget is the very same institution that has made Ehsanullah Ehsan, a known terrorist responsible for the blood of thousands of Pakistanis, a “hero”: another one of the establishment’s blue-eyed boys.

The DG ISPR, on 26th April 2017, announced that Ehsanullah Ehsan had exposed “hostile foreign agenda” within Pakistan, and “designs to destabilize Pakistan”. It is truly alarming that Pakistan has one of the world’s best-ranked intelligence agencies, and yet it takes such immense pride in constantly being the victim of “hostile foreign agenda”. The military that has lost hundreds and thousands of lives to the terrorism that has gripped this country for decades now is the same military that allowed Ehsanullah Ehsan a prime time slot for his anti-India tale to be aired. One can try and take some time to digest that but to no avail.

US-based security expert, Arif Jamal recently told DW that the ISPR-released video of Ehsanullah Ehsan “has made a saint out of a top terrorist”. The fact is that it becomes largely irrelevant to the grander scheme of things that India is sending in funds, and possibly equipment, to train rogue elements within our own state. In the modern world, unfortunately, there is inter-state intrigue between even the most developed countries. Yet, in Pakistan, it seems like the national narrative is exactly where the military establishment wants it to be: stand united against India – nothing more, nothing less.

Without fear of India, of course, people would have the ability to ask far more pressing questions. Why are undemocratic institutions shaping domestic and foreign policy even today after a smooth transition between two democratic governments? Why is there no crack-down, whether through Radd-ul-Fasaad or otherwise, against known hate-preachers, such as Lal Masjid’s notorious Abdul Aziz, or Bol TV’s Aamir Liaqat? Why have there been no consequences for the DG ISPR’s announcement of the COAS’ rejection of the civil government’s report on Dawn leaks? The answers to these questions require us to break free of the shackles that our own establishment has placed on us, for no other reason but the fact that they sincerely and genuinely believe “national interest” is the military’s interest.

There is no denying Indian involvement in destabilizing Pakistan but the fact that we still use that as a reason not to protect ourselves, in the long-term, against this apparent threat is alarming. It is as though human lives are all interchangeable and mere tools to some greater policy design that has never even been coherently articulated or planned.

Nawaz Sharif goes to India and the entire state apparatus turns up the heat on him: how dare civilians think they have a right to mend relations with a permanent neighbour? We’ll recall and condemn the blood on Modi’s hands but will never utter a word against the blood of our own people on our establishment’s hands, be it our brothers and sisters in Balochistan and FATA, or those with no option but to send their children to Madressahs, where they will be manufactured for Jihad – the State seems to still ignorantly believe that the Jihadi outpour will be in Kashmir. Kashmir has its own indigenous struggle for freedom and we certainly don’t need to be complicating already challenging times for them by sending in our boys.

While the phenomenon of radicalization spread across Pakistan like wildfire, the situation in India is fast catching up. We have our Mashal Khan, Shahzad Masih, Shama Bibi, and countless other victims of “mob justice” while India has its Pehlu Khan, Muhammad Ikhlaq, and several others who lost their lives to enraged mobs. The fire exists on both sides and poorly thought out security and strategic considerations are being used as grounds to fan the flames.

We are the society that makes heroes out of terrorists and self-confessed murderers; a society that has civil and military leadership so entranced by the sight of dollars that human life has lost its value entirely. People are angry: from your airports to your general stores, there is immense frustration breeding while flawed policies continue to radicalize the young and old alike. India bashing is still a priority; asking for the boots to take over is still our solution to deeply embedded problems created by those very boots; we are victims by choice of circumstances that we have made by refusing to take responsibility for what happens within our borders.

The violence is symptomatic of a far more frightening disease: this need to constantly be seen as the victim of circumstances out with our control. No accountability for where our taxpayer’s money is going when the military we equip is unable, despite several military operations, to defeat terrorism. Similarly, no accountability for why our civil government has refused to undertake criminal justice reform, instead leaning on the military to continue on through military courts, God forbid the civilian government may actually have to use half its brain to decide what sort of a legal system is required to deal with Pakistan’s current circumstances.

There are actors and do-ers: we, in Pakistan, are just passive receivers. We unite in condemning terrorist attacks but drift off into finger pointing and neighbour-blaming whenever the time comes to speak of policy reform. What we’ve had for the last many years is clearly not working. Is it anti-Pakistan to want better? Is it anti-Pakistan to want to see a peaceful, progressive society where one can express a thought without fear of dangerous labeling? Is it anti-Pakistan to spend our time and effort on our rich culture, languages and art rather than spending our time manufacturing bombs and missiles? If it’s anti-Pakistan to want to see a stable, democratic Pakistan, then our conceptions of our national identity need some serious re-evaluation.