In­dia’s state ter­ror­ism im­per­ils int’l le­gal or­der

Pakistan Observer - - EDITORIALS AND COMMENTS - S Qa­mar Afzal Rizvi Email:rizvipeac­ere­

to be Indian cit­i­zen, claimed that he was a com­man­der in the Indian Navy, and it has sought con­sular ac­cess to Yadav. Dur­ing in­ves­ti­ga­tion, RAW agent Yadav con­fessed that dur­ing his stay, he con­tacted var­i­ous Baloch sep­a­ratist lead­ers and in­sur­gents, in­clud­ing Dr Al­lah Nazar Baloch, to ex­e­cute the task to dam­age the China-Pak­istan Eco­nomic Cor­ri­dor project (CPEC).Pak­istani Gov­ern­ment and ISI have ac­cused the Indian con­sulates in Kan­da­har and Jalal­abad, Afghanistan, for pro­vid­ing arms, train­ing and fi­nan­cial aid to the Balochis­tan Lib­er­a­tion Army (BLA) in an at­tempt to ‘desta­bilise Pak­istan’.

Es­pi­onage is cu­ri­ously ill-de­fined un­der in­ter­na­tional law, even though all de­vel­oped na­tions, as well as many lesser-de­vel­oped ones, con­duct spying and eavesdropping op­er­a­tions against their neigh­bours.’ Ex­am­ined in light of the re­al­ist ap­proach to in­ter­na­tional re­la­tions, states spy on one an­other ac­cord­ing to their rel­a­tive power po­si­tions in or­der to achieve self-in­ter­ested goals. This the­o­ret­i­cal ap­proach, how­ever, not only fails to ex­plain in­ter­na­tional tol­er­ance for es­pi­onage, but also in­ad­e­quately cap­tures the co­op­er­a­tive benefits that ac­crue to all in­ter­na­tional states as a re­sult of es­pi­onage. Although no in­ter­na­tional agree­ment af­fir­ma­tively en­dorses es­pi­onage, states do not re­ject it as a’ vi­o­la­tion’ of in­ter­na­tional law.’

As a re­sult of its his­tor­i­cal ac­cep­tance, es­pi­onage’s le­gal va­lid­ity may be grounded in the recog­ni­tion that “cus­tom” serves as an au­thor­i­ta­tive source of in­ter­na­tional law. Es­pi­onage is a crime un­der the ‘le­gal code’ of many na­tions. Ac­cord­ing to Ar­ti­cle 29 of cus­tom­ary In­ter­na­tional Hu­man­i­tar­ian Law, “A per­son can only be con­sid­ered a spy when, act­ing clan­des­tinely or on false pre­tences, he ob­tains or en­deav­ours to ob­tain in­for­ma­tion in the zone of op­er­a­tions of a bel­liger­ent with the in­ten­tion of com­mu­ni­cat­ing it to the hos­tile party.”

Ar­ti­cle 30 of the same law states, “A spy taken in the act shall not be pun­ished with­out pre­vi­ous trial.” In­dia and Pak­istan have been try­ing spies in mil­i­tary courts. Sovereignty is a core pre­cept of pub­lic in­ter­na­tional law, guard­ing a state’s es­sen­tially ex­clu­sive ju­ris­dic­tion over its own ter­ri­tory. A con­comi­tant prin­ci­ple is that “[e]very State has the duty to re­frain from in­ter­ven­tion in the in­ter­nal or ex­ter­nal af­fairs of any other State” and “the duty to re­frain from fo­ment­ing civil strife in the ter­ri­tory of an­other State, and to pre­vent the or­ga­ni­za­tion within its ter­ri­tory of ac­tiv­i­ties cal­cu­lated to fo­ment such civil strife.”

The prin­ci­ple of non-in­ter­fer­ence in sov­er­eign af­fairs is rec­og­nized most fa­mously in the U.N. Char­ter it­self, which pro­vides in Ar­ti­cle 2(4) that “[a]ll Mem­bers shall re­frain in their in­ter­na­tional re­la­tions from the threat or use of force against the ter­ri­to­rial in­tegrity or po­lit­i­cal in­de­pen­dence of any state, or in any other man­ner in­con­sis­tent with the Pur­poses of the United Na­tions.” The prin­ci­ple is, how­ever, broader than this pre­oc­cu­pa­tion with use of force sug­gests.

The ex­er­cise of what is known as ‘en­force­ment ju­ris­dic­tion’ by one state and its agents in the ter­ri­tory of an­other is clearly a ‘breach’ of in­ter­na­tional law. In 2011, the Guardian pub­lished an ar­ti­cle which mentioned that In­dia is a ‘safe haven’ for many Hin­dutva (a Raw’s sub­sidiary) ex­trem­ists and that the Indian Gov­ern­ment has turned a blind eye to many Saf­fron ter­ror groups that op­er­ate within its ter­ri­tory.WrightNeville, an Aus­tralian aca­demic writes that out­side Pak­istan, some West­ern ob­servers also be­lieve that In­dia se­cretly funds the Balochis­tan Lib­er­a­tion Army (BLA). In Au­gust 2013 US Spe­cial Rep­re­sen­ta­tive James Dob­bins said Pak­istan’s fears over In­dia’s role in Afghanistan were “not ground­less”. Lt. Gen. Asim Ba­jwa con­firmed the pres­ence of an ac­tive es­pi­onage of RAW within Pak­istan. He elab­o­rated, “Yadav’s mis­sion in­cluded con­duct­ing of op­er­a­tions in Karachi and Balochis­tan…to tar­get the Gawadar Port and the CPEC project…the ap­pre­hended spy is aware of the fund­ing made re­gard­ing the at­tack car­ried out on the Mehran Base and that Yadav also tried to form a ‘Tiger force’ in Karachi which aimed to­wards spread­ing sec­tar­i­an­ism in the city,” adding that “the spy was di­rectly con­nected with RAW and the Indian author­i­ties.”

While Pak­istani se­cu­rity agen­cies have pre­pared a strong case to ex­pose ‘col­lab­o­rated Raw’s ter­ror­ist mis­sion’ Pak­istan, the Indian pro­pa­ganda ma­chin­ery is frus­trat­ingly ask­ing for con­sular ac­cess of Yadav. Pak­istani gov­ern­ment has jus­ti­fi­ably re­gret­ted the Indian de­mand. Islamabad’s no­tion of re­fer­ring this case to the ‘UN’, is ab­so­lutely a right­ful ‘le­gal re­course’. Since the case in point, seems vir­tu­ally fit to war­rant Pak­istani con­cerns re­gard­ing In­dia’s state-spon­sored ter­ror­ism, the in­ter­na­tional com­mu­nity has to play its ‘as­cribed role’ un­der the UN Gen­eral Assem­bly’s res­o­lu­tion 49/60 of Dec 09 1994 and its an­nex on the Dec­la­ra­tion on Mea­sures to Elim­i­nate In­ter­na­tional Ter­ror­ism. — The writer is an in­de­pen­dent ‘IR’ re­searcher based in Karachi.

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