Daily Times Editorial Dec 21, 2012

US immunity for ISI The US State Department has determined that Pakistan’s ISI and two of its former directors general enjoy immunity and cannot be tried in a New York federal court in the Mumbai attacks case. This view of the highest executive authorities in Washington, confirmed by legal advice, has been conveyed to the court, with the rider that the determination is not open to judicial review. International and US law is quite clear in this regard. Under the US’s Foreign Sovereign Immunities Act (FSIA), foreign governments and their employees acting in their official capacity cannot be summoned, let alone prosecuted in a US court. Sine the ISI conceptually and practically has consistently been treated as part of the government of Pakistan and operates under the Ministry of Defence, it and its employees enjoy immunity under the FSIA. The case was filed by survivors and family members of the victims of the November 26, 2008 terrorist attacks in Mumbai. They had listed as respondents two former directors general of the ISI, Lt-Generals (retd) Ahmed Shuja Pasha and Nadeem Taj, arguing that the Mumbai attacks were planned and supported by the ISI, over which the government of Pakistan has no control. This argument has been refuted by the State Department’s finding, therefore it is now unlikely that the two former chiefs of ISI will have to make the trip to New York. The State Department however, was at pains to emphasise that it takes no position on the merits of the plaintiffs’ case, strongly condemns the Mumbai terrorist attacks and expects Pakistan to dismantle the Lashkar-e-Tayyaba (LeT), whose leaders Hafiz Saeed, Zakiur Rahman, Sajid Mir and Azam Cheema are also amongst the respondents. India has surprisingly rejected the determination, calling it a matter of deep and abiding concern and in contradiction with Washington’s commitment to bring those responsible to justice. Since the law is very clear on this issue, the Indian reaction is not understandable, except perhaps as an expression of frustration at the lack of progress in bringing closure to the case. In this regard, India has complaints against Pakistan for not putting the LeT leaders allegedly involved, especially Hafiz Saeed, on trial. India accuses the ISI of being behind and masterminding the attacks. On his recent visit to India, Pakistani Interior Minister Rehman Malik argued that the perpetrators were “non-state actors” and the Pakistan government or authorities had nothing to do with it. He also resorted to dilatory tactics by arguing that Hafiz Saeed had been arrested and presented before the courts but for lack of evidence, the courts released him. What he did not mention was that the prosecution of Hafiz Saeed had nothing to do with the Mumbai attacks case but other charges. In any case, we are in a grey area here, since allegations have been rife in the past that the Mumbai attackers were in touch with and receiving instructions from some people in Pakistan. That of course does not necessarily confirm whether the ‘handlers’ were state or non-state actors. India has recently executed Ajmal Kasab, the lone survivor amongst the attackers, and has repeatedly voiced its frustration at the ‘masterminds’ in Pakistan not being prosecuted. Until recently, India had halted the Pakistan-India dialogue in protest. Only after this began to be seen in New Delhi as a dead end policy did India agree to once again restart the dialogue, which is proceeding in a reasonably healthy fashion. The judicial commission that earlier went to India to record the statements of the witnesses in the case in that country had returned with merely the witnesses’ statements, but were not allowed to cross-examine them. After a long delay, both countries have now decided to work out the modalities of another visit by the judicial commission in order to cross-examine the witnesses and thereby satisfy the Rawalpindi trial court as to the admissibility of the commission’s report. Pakistan must cooperate in a transparent manner in getting to the bottom of who exactly was responsible for 26/11 and bring them to justice. This is in the interests of the normalisation of relations process that is ongoing between the two countries. With all their chequered history of relations and mutual mistrust and suspicion, the two neighbours have slowly converged on the understanding that the Mumbai attacks were a ‘spoilers’ effort to halt the peace and normalisation process and that they should not be allowed to succeed and hold both countries hostage to their own agenda. Terrorism, as has been amply demonstrated by now, is no respecter of borders (compare Pakistan-Afghanistan). It is therefore in the interests of all regional states, including Pakistan and India, to come together in the struggle against this mutual menace and bury it for good.