Law is usually perceived as “unbending”, and to prevent it from reshaping itself to accommodate reality, it is usually shown as blindfolded. States deal with one another on the basis of law, pretending that this law between states is identical to municipal or national law. The truth is, international law is very different from the internal legal order of a sovereign state, and the reason is embedded in the concept of sovereignty itself.
International law has gelled around bilateral and multilateral treaties signed by states, but its greatest flaw is the lack of an all-powerful prosecuting authority. Of course, it can be enforced through the UN Security Council, but the justice that comes from there is political rather than strictly legal. This in itself is not a flaw. It simply means states have to be pragmatic and flexible rather than literalist. When the League of Nations handled justice under international law, it died stretched on the wheel of the principle of state sovereignty. In the League, every state had a veto!
India and Pakistan are fighting an epochal war for over half a century. Because of this war they don’t have “normal” relations. A process of normalisation has been in place, but bilateral diplomacy has failed to achieve it on the basis of what the two sides think it means. Pakistan makes normalisation conditional to “meaningful progress” on the resolution of outstanding disputes. India thinks normalisation of relations through free trade under WTO and free movement of people across borders will facilitate the resolution of disputes later. The world is on the side of India; so are most intellectually inclined Pakistanis, including the prime minister of Pakistan.
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Problems arise out of the remarkable mental similarity among officials who man the two foreign offices.
Both are hardline and both lean on textbook “nationalism” and “national consensus” to scare the elected leaders off. They are known as “connoisseurs of the stalemate”, addicted to deadlocks. Indian diplomats don’t fear arbitrary dismissals or punishment posts but Pakistani diplomats do, yet their opposition to innovative statesmanship is the same. They even look alike and have the same costive style of blocking the flexible response diplomacy has been known for over centuries. India and Pakistan suffer from the permanent “enmity of the civilisationally related”, which Freud put so neatly in his phrase “the narcissism of small differences”, and their diplomats best represent it.
But today, the change of mind in Pakistan vis-a-vis India is real. The serving diplomat, scared of arbitrary punitive action of the ruling government, should normally be obedient, but he is not. He lines up behind the army’s entrenched and understandable anti-Indian orientation and is able to even be defiant and obstructive. Ex-foreign minister Sartaj Aziz, in his book Between Dreams and Realities: Some Milestones in Pakistan’s History (2009), reported a similar revolt against Prime Minister Nawaz Sharif within his foreign office. But the world is cruelly opposed to the textbook revisionist stance of the weak state and wants Pakistan to stop its deniable asymmetric war called jihad against India. But in Pakistan, even foreign ministers walk out of the party — as one did in the PPP government — opposing path-breaking initiatives in policy towards the US and India.
But the signs in Pakistan today are hopeful in the face of terrorism arising out of the state’s asymmetric jihad. An influential publication in Islamabad, Criterion Quarterly, in its July/ September 2014 issue, has an ex-ambassador giving notice of it. Touqir Hussain, teaching at Georgetown University and Johns Hopkins University in the US, writes in his article “India, Pakistan and Kashmir”: “…Thinking in Pakistan on the Kashmir dispute is changing even though policies may not have. Broadly speaking there are three points of view on the subject — two on the fringes and one in the middle. One [view] keeps insisting that the Kashmir cause is winnable. I used to subscribe to this when I was a young diplomat. With time and further reflection I changed, as did Pakistan. I realised that it is not enough to say that something is winnable as one must also consider the costs involved. So I abandoned this approach which is now confined to a few of the retired ambassadors, generals, and jihadists.”
This observation betrays a new sign — that a retired diplomat has finally decided not to divorce his “logosphere” of Kashmir-centric case-building from what is going on inside Pakistan. Despite claiming sovereign exception, no state can clinically separate foreign policy from internal developments.
Pakistani diplomats don’t even take the cue from the country’s prime minister trying to establish this connection and, in fact, challenge his point of view as unforgivable heresy. Late Indian Prime Minister I.K. Gujral has gone on record against this Pakistani trend in his memoirs.
Another article in Criterion, by ex-deputy chief of air staff, Air Commodore (retd) Khalid lqbal, currently a consultant at the Islamabad Policy Research Institute on policy and strategic response, indirectly touches on the illegitimacy of jihad and asymmetric warfare in “Jihad and Modern Warfare”: “Jihadi organisations are not the same as armed forces of a state. These are non-government entities; hence international public law is not applicable to them. However if a state employs these entities as a declared policy, it is accountable for the foreseen or unforeseen consequences of such an application… The problem becomes complex when these entities are employed by the state without openly acknowledging such application. In such cases, though the state using these entities is responsible for hurting another fellow state, it refuses to become accountable for the effects created by these outfits.”
Wisdom, called “hikmat” in Urdu, is defined in many ways, but one consistent quality of the wise man is flexibility of response to circumstances. Left alone, man is subject to nature, which is more powerful than he is. Man consequently has been “shaped” and “reshaped” by nature because he is flexible.
However, man also aspires to conquering nature. This binary has produced warrior and non-warrior types: in other words, the soldier and the trader. Tragically, for Pakistan and its jihadi warriors, the world is heavily into becoming traders, being flexible and avoiding conflict. This is the wrong time for Muslims to start fighting when their masses are impoverished.
Three thinkers in Pakistan whom I respect belong to the discipline of economics, all ex-World Bank officials. Shahid Javed Burki and Ijaz Nabi have consistently held that any free trade arrangement between India and Pakistan under the WTO would benefit Pakistan more than India; and Prime Minister Nawaz Sharif agrees with them. Ishrat Hussain, who was also governor of the State Bank of Pakistan, has thought ahead and imagined an economic union of South Asia that will peacefully end the mutually clashing nation-states in the region in favour of the masses, who now increasingly face life without electricity and water.
On August 12, Indian Prime Minister Narendra Modi went to Srinagar and said “more people died due to terrorism than war”. In Pakistan, too, over 50,000 have been killed by its own terrorists than in any of the several wars with India. Pakistan condemned Modi’s reference to “proxy war” and protested about Indian firing on the semi-hot Line of Control on the Indo-Pak border. Flexibility is still being equated to cowardice.
The writer is consulting editor, ‘Newsweek Pakistan’