Home Global Village Can Pakistan lose Masood Azhar but win this lawfare?

Can Pakistan lose Masood Azhar but win this lawfare?

lawfare

Hassan Aslam Shad |

In what appeared to be a Mayday call for Pakistan, India’s relentless diplomatic push to designate Masood Azhar a global terrorist finally bore fruit. On 1st May, China lifted its technical hold on Masood Azhar in the United Nations Security Council (“UNSC”).  This paved the way for the Jaish-e-Muhammad (“JeM”) Chief to be designated a global terrorist and listed in the UNSC 1267 Sanctions Committee List (also known as the Al Qaeda and Daesh List).

Previously, JeM had been banned by the UNSC in 2001. Although for the last ten years or so, India had been pushing for Masood Azhar’s listing in the UNSC Sanctions Committee, to India’s frustration, every time the move would be blocked by China.

The FATF dark clouds will be over, world powers will not harass Pakistan, and India will relegate to the periphery.  Legend has it that God only helps those who help themselves.

So what changed this time? Did China finally relent in the face of world pressure? Or was this a deft diplomatic move by the Chinese to ease international pressure on Pakistan after the Pulwama attack? Can Pakistan now be expected to give up Masood Azhar and other similar liabilities as low-cost options in favour of the bigger prize of getting its name removed from the FATF grey list and to otherwise be seen as coming with clean hands at a time of heightened international scrutiny? Most importantly, can Pakistan somehow turn this lawfare on its head?

Read more: Masood Azhar blacklisted: Kashmiri struggle against Indian brutality disassociated

Reasons for the Designation / Listing

The USNC Sanctions Committee on its website gives the following reasons for the listing:

Reason for listing

Mohammed Masood Azhar Alvi was listed on 1 May 2019 pursuant to paragraphs 2 and 4 of resolution 2368 (2017) as being associated with Al-Qaida for “participating in the financing, planning, facilitating, preparing, or perpetrating of acts or activities by, in conjunction with, under the name of, on behalf of, or in support of”, “supplying, selling or transferring arms and related material to”, “recruiting for”, “otherwise supporting acts or activities of”, and “other acts or activities indicating association with”: Jaish-i-Mohammed…

Additional information

Mohammed Masood Azhar Alvi founded Jaish-i-Mohammed… (JEM) upon his release from prison in India in 1999.  Azhar was released from prison in exchange for 155 hostages held on an Indian Airlines flight that had been hijacked to Kandahar, Afghanistan. Azhar has also financially supported JEM since its founding”…

Pakistan’s Reaction

After the listing, Pakistan confirmed that it would enforce the sanctions against Masood Azhar in letter and spirit. Pakistan’s Foreign Office spokesperson explained that earlier efforts to list Masood Azhar had failed because the information “did not meet the required technical criterion” and that “These [earlier] proposals were aimed at maligning Pakistan and the legitimate struggle of the people of Indian occupied Kashmir…and were thus rejected by Pakistan”.

When Pakistan takes positive steps to clean up its own house and drains the swamp of unwanted remnants from the past, it will automatically fall in line with international requirements.

The current listing, he maintained, was a compromise after “political references were removed, including attempts to link it with Pulwama and maligning the legitimate struggle of the Kashmiris in IOK for the realization of the right of self-determination”. Expectedly, the Indian government and media have hailed this as a resounding victory for India and termed it a feather in India’s diplomatic cap.  Pakistan has however downplayed the matter and called India’s claims of a diplomatic victory “false and baseless”.

Was this a victory for India and a defeat for Pakistan? The answer depends on the context and the broader aims and objectives of the parties which were at sharp variance with one another.  Regardless of the diplomatic kerfuffle between India and Pakistan, what Pakistan should worry about instead is knowing the possible reasons behind this move, implications of similar moves in future, and how this “defeat” (if India’s terminology is to be believed) can be used by Pakistan to its advantage.

Read more: Pakistan ready to resolve Masood Azhar issue to debunk Indian narratives

Was this Expected?

First, let us not fool ourselves here, shall we?  For the discerning eye, this listing wasn’t a bolt from the blue.  It had been in the works for quite some time. China was the last bastion holding out in this lawfare against Pakistan. After 10 years of India’s failure to list Masood Azhar, a fresh opportunity arose in February this year. Pakistan was thrust in the eye of the storm right after the diplomatic build up that followed the Pulwama attack.

By throwing regard for international law to the wind, India did two things post-Pulwama that put Pakistan at the centre of world attention. First, with national elections on the horizon, the populist BJP led government carried out the Balakot airstrike hoping that a successful strike would gravitate voters towards BJP. This move badly backfired. Pakistan nevertheless faced a reality check: the world largely chose to stay quiet on India’s flagrant violation of international law. India didn’t get too far with it either. The optics of the attack hurt India’s credentials.

Can Pakistan now be expected to give up Masood Azhar and other similar liabilities as low-cost options in favour of the bigger prize of getting its name removed from the FATF grey list.

India’s claims to have downed a Pakistani F-16 and to have killed some 300 odd terrorists in Balakot appeared ludicrous at best. Domestically, a fallen and captured soldier was hardly the bravado and pomp the BJP wished to showcase before the Indian voter. Second, amidst all this, India successfully managed to throw a curveball Pakistan’s way which frankly caught it off guard.  Pakistan has been negotiating an IMF bailout package to jump-start its fledgeling economy.

Pakistan is also trying to wriggle out of the Financial Action Task Force or FATF’s notorious greylist on which it was placed in June 2018.  Pakistan’s FATF review is around the corner (mid-May and September this year) and if Pakistan doesn’t manage to convince FATF about its progress to combat terrorist financing and money laundering, it faces the prospect of being moved to the blacklist. India’s move, therefore, couldn’t have come at a worse time for Pakistan. By creating a false equivalence between Pulwama and Masood Azhar / JeM, India used the circumstances to its advantage.

Read more: US move on Masood Azhar not favorable for South Asia: China

India’s new Watershed Event

India’s fossilized narrative that Pakistan is a state sponsor of terrorism got a further lifeline after Pulwama.  To their credit, as world memory is generally short lived, India’s think tanks and media know how to work around public memory and make the narrative stay current.  By circulating gruesome images of the suicide attack with pictures of Masood Azhar and JeM, public memory was effectively reset. All this, without offering evidence of either Masood Azhar or JeM’s involvement. If Pakistan’s account is to be believed, the Indian dossier on Pulwama shared with Pakistan was wanting in detail.

The dossier was also shared belatedly post-fact after repeated assurances by Pakistan to investigate JeM involvement. All this while the world was looking at Pakistan with raised eyebrows. The optics were beginning to go from bad to worse for Pakistan. Tactfully, India offered Pakistan a Hobbesian choice: if Pakistan wanted to talk peace, it had to handover over Masood Azhar. Plain and simple. Knowing fully well that Pakistan wouldn’t oblige, especially when India had not shared any evidence, India was turning up the heat on Pakistan and cornering it between a rock and a hard place.

Pakistan nevertheless faced a reality check: the world largely chose to stay quiet on India’s flagrant violation of international law. India didn’t get too far with it either.

Pakistan would have fallen in this trap were it not for China coming to the rescue by taking a leaf from an old playbook and asking India (and world powers) to play by the rules. China was arresting the decline for Pakistan at a time when temperatures were soaring between India and Pakistan, and world powers appeared to be siding with India. Pakistan wanted the storm to subside so that the listing looked like it had been dealt “routinely”. This was now a battle for optics.

Read more: Blacklisting Masood Azhar: China Urges US to refrain from forceful actions

China’s deft hand?

So what did China manage to do and how was it crucial for Pakistan?

In diplomacy, timing is everything.  It very well determines the fate of matters on the international agenda. In the immediate aftermath of Pulwama, India was hell bent on creating a nexus between Pulwama and Masood Azhar/JeM.

The first option for India was to go down the traditional UNSC route and blacklist Masood Azhar. This would have meant putting the matter on the UNSC agenda, initiating a debate, and then letting the world powers determine its fate. However, an obvious roadblock stared India in the face: China’s veto. Faced by the Chinese veto, Indian media started claiming that China and Pakistan wanted to avoid the embarrassment of publicly debating Masood Azhar in the UNSC.

This may be partially true as no country wants sensitive national issues (terrorist designations no less) to be publicly debated. However, added to the list of countries facing embarrassment at the UNSC would have been India as it would have had to produce direct evidence linking Masood Azhar to Pulwama, something very difficult if not impossible for India. Indian decision makers would, of course, have configured this in their decision calculus. This explains why India pushed for the other option: UNSC 1267 Sanctions Committee.

The UNSC 1267 Sanctions Committee route, laden with its own technicalities and workings, offered all parties an opportunity as well as some face-saving. This Committee, like other UNSC Committees, is guided by a specific mandate, and its deliberations are held in private. Decisions require the consensus of all members. A tedious process, no less. At the Committee, India could finally push through the listing through backing of the US, UK and France. China also got its way by holding the matter under its thumb until it had been debated and discussed. Most importantly for Pakistan, this allowed it to avoid the embarrassment of seeing Masood Azhar listed in the immediate aftermath of Pulwama.

Read more: China blocks UN bid to sanction Masood Azhar, again

Possible reasons behind China’s “technical hold”

The official reason given by China for the “technical hold” is that it wanted the matter debated and discussed instead of being rushed. Despite this official position, some possible reasons behind China’s move could be explained by the following.

First, China is an emerging world power that like other world powers flexes its political muscle from time to time to make a point or two. Delaying the matter was possibly to show India and the world powers that they couldn’t simply walk away with a UNSC listing without fulfilling the Committee’s internal requirements. All this would, of course, have happened on Pakistan’s urging, just like India was using its leverage and clout with US, UK and France. China’s technical hold could also possibly be explained by its desire to showcase compliance with international law at a time of increased US allegations against China that it has scant regard for international rules. Debating the matter in the Committee was also in line with China’s historic position to discuss matters in a private setting.

The dossier was also shared belatedly post-fact after repeated assurances by Pakistan to investigate JeM involvement. All this while the world was looking at Pakistan with raised eyebrows.

Second (and this is important from Pakistan’s perspective), China had to make a point that it stood by its ally and wouldn’t simply cave into Indian demands. Regardless of what the Indian media may claim about China abandoning Pakistan or being unable to put up with further world pressure etc., the fact remains that there are no free lunches in international relations. Countries act solely on the basis of their own self-interest. Without a doubt, Pakistan needs China more than it needs Pakistan.  However, due to the rapidly evolving South Asian security paradigm, Pakistan is central to the Chinese geo-strategic objectives in the region. Abandoning a strategically to fend off on his own at a difficult time would have sent the wrong message. Crucially, China probably stood by Pakistan’s side for so long that it really mattered.

Due to the private nature of the Committee deliberations, what compromises were reached and what give and take transpired remain unknown (and will possibly never be known). However, some obvious conclusions can be drawn. First, the listing simply refers to Masood Azhar’s association with Al Qaeda and his active association with JeM.  Pulwama is not mentioned, nor is anything remotely related to JeM’s or Masood Azhar’s involvement in the attack. Deliberately, therefore, the wording has been left vague. In a way, a sweet victory for both India and Pakistan as they can interpret it to their liking and give whatever spin they wish to it.

Read more: Masood Azhar: Indian media making a fool of itself, again

Having said that, on a balance of probabilities, India appears to have won the battle for optics, at least for now. The listing will provide fodder to India’s claim that Pakistan is a breeding ground for terrorism.  A citizen being listed as a global terrorist doesn’t go down too well in today’s global corridors. Second, the BJP government will encash this “victory” before its constituents to stay relevant in the game. BJP’s thunderous claims about its success in “isolating” Pakistan were beginning to be questioned. These claims will get a new lifeline. Not surprisingly, India’s spin doctors are having a field day in making this appear as a grand victory.

The ongoing lawfare against Pakistan

Meanwhile, Pakistan faces its own challenges and woes. Broadly speaking, Pakistan faces a lawfare on the following fronts: negotiating an IMF bailout for its massive balance of payments crisis, and trying to figure a way to get out of the FATF greylist (best case scenario) and avoid a FATF blacklist (worst case scenario). The target of this lawfare is primarily Pakistan’s lifeline: its economy.

Faced with these headwinds, for the first time in its history, Pakistan is doing a delicate balancing act. It is walking a diplomatic tight rope in a dangerous neighbourhood by working with various countries and actors whose interests, if not diametrically opposed to one another, do not necessarily coincide on all regional issues. With Afghan peace talks currently underway, Pakistan, to its credit, has struck a conciliatory tone with all parties including the Afghan government and urged them to resolve their differences amicably.

Debating the matter in the Committee was also in line with China’s historic position to discuss matters in a private setting.

The FATF lawfare is perhaps the most challenging as it percolates all the way down to the IMF bailout and may very well influence the outcome of IMF talks. The lawfare is now nearing its logical end, and one way or another, Pakistan will have to prove that it has a robust regime to tackle money laundering and terrorist financing. This translates into proving meaningful progress on the ground, something that will necessarily be both tangible and intangible, in other words subjective.

Meanwhile, India has made its intentions clear: right after the Masood Azhar listing, India’s Finance Minister Arun Jaitley said that India wanted Pakistan placed on the FATF blacklist and that it would make this request to FATF in mid-May when FATF reviews Pakistan’s progress.  Pakistan understandably expressed its “deep concern” over this statement. If recent history is any guide, Pakistan will once again scramble its diplomatic corps to UN and FATF to highlight India’s intervention and politicisation of the FATF review, something which Pakistan had done in February this year when similar reports emerged of India’s interference in the FATF process.

Read more: Share evidence against Masood Azhar acceptable to Pakistan’s courts: Qureshi

Let’s go back to the basics here. Will India relent from its anti-Pakistan posturing? With its axe to grind, it would be a folly to expect India to back down at this vulnerable time for Pakistan. Similarly, should Pakistan expect China to always bail it out or take a stand like it did in the Masood Azhar case? Again, it would be foolish to do so. China just managed to allow Pakistan time to breathe. It is now Pakistan’s turn to do the heavy lifting on its own.

Instead of viewing this purely as a zero-sum game, Pakistan’s policymakers should view it differently this time. In giving up Masood Azhar, Pakistan may have an opportunity unlike any other that has arisen in the recent past.  It is now up to Pakistan to seize the opportunity and make the most of it. Exactly how Pakistan manages to do this, remains to be seen.

Now is the time for Pakistan to win this lawfare!

After the Masood Azhar listing, the Foreign Office spokesperson Dr. Faisal confirmed Pakistan’s resolve to counter terrorism “in all its forms and manifestations”. He further said, “The Government of Pakistan since January 2019 accelerated the implementation of the National Action Plan against terrorism and extremism. The Plan inter alia includes a range of actions against UN proscribed entities and individuals. Notwithstanding the challenges, progress is being made and further work will continue in line with national consensus and interest.”

Pakistan faces its own challenges and woes. Broadly speaking, Pakistan faces a lawfare on the following fronts: negotiating an IMF bailout for its massive balance of payments crisis.

Possibly for the first time in its history, Pakistan seems to be heading in the right direction, albeit that a lot of work still needs to be done on the ground. Since coming into power, Prime Minister Imran Khan’s Government’s position on proscribed organizations and their affiliates operating in Pakistan or using Pakistani territory has been very clear: their time is up and they will be given “no space” to operate from or establish a foothold in Pakistan.

This is a major shift in policy, far from the “strategic depth” narrative that did not get Pakistan anywhere. It is hoped that this policy shift is driven by an internal moral compass reorientation as opposed to it being a forced “course correction” coming from verticals such as the UN, FATF and world powers. Only time will tell if Pakistan successfully manages to slay the spectre of terrorism as promised.

Read more: Will China’s protection of Masood Azhar create bigger problems for Pakistan down the road?

It is hoped Pakistan has realized that the presence of a bad guy in its neighbourhood is bad optics. The likes of Masood Azhar & co. have only caused grievous harm to Pakistan’s social fabric besides tarnishing Pakistan’s reputation before the world. Even assuming that geo-strategic compulsions back in the day somehow necessitated Pakistan’s supporting or sheltering or tolerating these gents for whatever reason, let’s be clear: they have far outlived whatever little utility they had.

If Pakistan’s refusal to hand over, allow access to or tolerate such characters was Pakistan’s tit-for-tat to India for its never-ending belligerence and animosity towards Pakistan, hopefully, Pakistan has now realized that this is no longer only about India.  It is about the world at large and what it deems acceptable. Characters such as Masood Azhar have simply no place in the 21st Century setting.

The Plan inter alia includes a range of actions against UN proscribed entities and individuals. Notwithstanding the challenges, progress is being made and further work will continue in line with national consensus and interest.

Pakistan should, therefore, take the Masood Azhar listing positively and avoid falling in the dangerous trap of justifying having won a victory. If handled tactfully by Pakistan, this can end up being as much a victory for Pakistan, or more, as it is (or is made out to be) for India. It all depends on how Pakistan manages to leverage the listing to its advantage. In addition to complying fully with the listing, Pakistan should ensure that no remnants or offshoots of JeM are allowed to refloat or resurface anywhere in its territory.

Pakistan should also ensure this for other proscribed outfits, some of which have cropped up in the past under changed names. Moreover, to secure an exit from the FATF grey list, on a war footing, Pakistan must plug remaining gaps in compliance to combat money laundering and terrorist financing.  Pakistan should take FATF into confidence about the positive steps being taken by it and showcase how it is implementing the FATF framework.

Read more: Azhar issue: Uri out of India’s proposal to U.N.

Importantly, regardless of the requirements thrust on it by FATF, UN and other international organizations, Pakistan should, for its own sake, dispassionately look inward, take a full stock of other similar outfits operating within the country and take timely steps to streamline them and thus avoid a repeat of the past where inaction to reign in such outfits led to their becoming a liability later. This is no longer about India or a victory here and there. Pakistan would need to look beyond all this. It’s about changing the world’s perception about Pakistan.

Perhaps even more than optics, it is now Pakistan’s battle for its future. Pakistan must, therefore, do this for its own sake. When Pakistan takes positive steps to clean up its own house and drains the swamp of unwanted remnants from the past, it will automatically fall in line with international requirements. The moment this thinking permeates Pakistan’s policy-making circles, tables will turn for Pakistan. The FATF dark clouds will be over, world powers will not harass Pakistan, and India will relegate to the periphery. Legend has it that God only helps those who help themselves.

Hassan Aslam Shad is the head of corporate and international practice of a leading law firm of Oman. He is a graduate of Harvard Law School, U.S.A. with a focus in international law. Over the years, Hassan has written extensively on topics of law including public & private international law and international relations. Hassan’s LL.M. Thesis at Harvard Law School was a detailed study of the parallels between Sharia and the Rome Statute of the International Criminal Court. Hassan has the distinctive honor of being the first person from Pakistan to intern at the Office of the President of the International Criminal Court, The Hague. Hassan is thrice gold medalist in LL.B. and was offered the Chevening Scholarship by Cambridge University and the Hugo Grotius Scholarship by the New York University School of Law. He has also represented Pakistan at the prestigious Jean Pictet international law moot court competition. He can be reached at: veritas@post.harvard.edu. The views expressed in this article are the author’s own and do not necessarily reflect the editorial policy of Global Village Space.

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