A basis of India-Pakistan cooperation on the Mumbai massacres: the ten Pakistani terrorists started off as pirates and the Al-Huseini is a pirate ship

One of my finest teachers at the London School of Economics many years ago had been Professor DHN Johnson, a pioneer of the Law of the Sea Treaty; reflecting upon the aftermath of the Mumbai massacres, it occurs to me that the Law of the Sea Treaty may provide the most expedient and lawful recourse in present circumstances, as well as a proper and clear basis for cooperation between the Government of India and the Government of Pakistan in the matter.

Both India and Pakistan have signed and ratified the Law of the Sea Treaty which reads at  Article 101

“Definition of piracy
Piracy consists of any of the following acts:
(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:
(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;
(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;
(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;
(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).”

From the captured Kasab’s confession, it is clear he and his companions began their criminal activities within Pakistan (by training as terrorists and engaging in a conspiracy to commit mass-murder) and this continued outside Pakistan at sea:

“On November 23, the teams left from Azizabad in Karachi, along with Zaki-ur-Rehman and Kafa. We were taken to the nearby seashore… We boarded a launch. After travelling for 22 to 25 nautical miles we boarded a bigger launch. Again, after a journey of an hour, we boarded a ship, Al-Huseini, in the deep sea. While boarding the ship, each of us was given a sack containing eight grenades, an AK-47 rifle, 200 cartridges, two magazines and a cellphone.  Then we started towards the Indian coast. When we reached Indian waters, the crew members of Al-Huseini hijacked an Indian launch. The crew of the launch was shifted to Al-Huseini. We then boarded the launch. An Indian seaman was made to accompany us at gunpoint; he was made to bring us to the Indian coast. After a journey of three days, we reached near Mumbai’s shore. While we were still some distance away from the shore, Ismail and Afadulla killed the Indian seaman (Tandel) in the basement of the launch.”

Pirates in law are Hostis humani generis or “enemies of mankind”.    As signatories to the Law of the Sea Treaty, India and Pakistan may act jointly against the Al-Huseini and others associated with the acts of  piracy including the maritime murders of the Indian fishermen that preceded the Mumbai massacres, thus solving the question of jurisdiction before it arises.  The remains of the nine dead Pakistani terrorists presently in a Mumbai morgue  can be buried at sea in international waters by whatever funeral procedure is due to dishonourable sailors and pirates.  (The fish will not refuse them.)  Kasab can be tried as a pirate too — though he really needs an American defence attorney to plea-bargain for him as he turns State’s evidence against the real masterminds of the plot, some of whom may be presently in the custody of the Pakistan Government.

Subroto Roy

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Transparency & history: India’s archives must be opened to world standards

Transparency & history: India’s archives must be opened to world standards
by Claude Arpi & Subroto Roy
First published in Business Standard New Delhi December 31, 2008, 0:26 IST

The Government of India continues to hide India’s history from India’s people using specious excuses. An example is the Henderson-Brook report on the 1962 war, a single copy of which is said to exist locked away in the Defence Ministry. An anti-Indian author like Neville Maxwell is among the few ever given access to it; he has reiterated his factually incorrect theory (accepted by Henry Kissinger and Zhou Enlai and the US and Chinese establishments since) that the 1962 war was due to Nehru’s aggressive policy and China had no choice but launch a “pre-emptive attack”.

In Parliament not long ago, Defence Minister A K Antony said: “Considering the sensitivity of information contained in the report and its security implications, the report has not been recommended to be declassified in the National Security interest.” This is nonsense. Nothing from as far back as 1962 can possibly affect anything significant to India’s security today. In any case the Defence Ministry’s official history of the 1962 war, though officially unpublished, is openly available.

Even the 2005 Right to Information Act goes against transparency of research into India’s history. Article 8 (1) (a) says, “there shall be no obligation to give any citizen,— (a) information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence.” This can cover all files of the MEA, Defence and Home; there seems to be no right to academic freedom for India’s people to research their own history.

China itself is more open with its archives. Since 2004, the Foreign Ministry in Beijing has begun a systematic process declassifying more than 40,000 items from its diplomatic records for the period 1949-1960. The Cold War International History Project at the Woodrow Wilson International Center in Washington DC has recently published Inside China’s Cold War; the Project Director admits this has been possible due to China’s “archival thaw”.

In the USA, official documents are made available after 30 years or when a reasonable demand is made under the Freedom of Information Act. Numerous groups exist whose only work is to make sure the law is followed. The recently released Foreign Relations of the United States, Volume XVIII, China (1973-1976) published by the American foreign ministry reveals several interesting aspects of the India-USA-China relationship. Last year the National Archives and Records Administration (NARA) posted some 320,000 declassified cables on-line. The text of once-secret diplomatic cables indexed is today retrievable from the NARA Website. It also includes withdrawal cards for documents still classified, so these can be requested under the Freedom of Information Act. Out of 119,356 documents for 1973 and 200,508 for 1974, some 7,484 were related to India. Indians scholars today have to rely on US documents for their own history!

In an open society, the ordinary citizen has reasonably easy access to any and all information relating to the public or social interest— whether the information is directly available to the citizen himself/herself, or is indirectly available to his/her elected representatives like MPs and MLAs. Different citizens will respond to the same factual information in different ways, and conflict and debate about the common good will result. But that would be part of the democratic process. In an open society, both good news and bad news is out there in the pubic domain— to be assessed, debated, rejoiced over, or wept about. Citizens are mature enough to cope with both— the experience causes a process of social maturation in formulating the common good as well as responses to problems or crises the community may face. People improve their civic capacities, becoming better-informed and more discerning voters and decision-makers, and so becoming better citizens.

The opposite of an open society is a closed society— in which a ruling political party or self-styled elite or ‘nomenclatura’ keep publicly important information to themselves, and do not allow the ordinary citizen easy or reasonably free access to it. The reason may be merely that they are intent on accumulating assets for themselves in the dark as quickly as possible while in office, or that they are afraid of public anger and want to save their own skins from demands for accountability. Or it may be they have the impression that the public is better off kept in the dark— that only the elite ‘nomenclatura’ is in a position to use the information to serve the national interest. Bad news comes to be suppressed and so good news gets exaggerated in significance. News of economic disasters, military defeats or domestic uprisings gets suppressed. News of victories or achievements or heroics gets exaggerated. If there are no real victories, achievements or heroics, fake ones have to be invented by government hacks— though the suppressed bad news tends to silently whisper all the way through the public consciousness in any case.

Such is the way of government propaganda everywhere. Closed society totalitarianism permitted the general masses to remain docile and unthinking while the ‘nomenclatura’ make the decisions. Dostoevsky’s Grand Inquisitor said that is all that can be expected of the masses. Open society transparency was instead defined by Pericles for the Athenians: “Here each individual is interested not only in his own affairs but in the affairs of the state as well; even those who are mostly occupied with their own business are extremely well-informed on general politics— this is a peculiarity of ours: we do not say that a man who takes no interest in politics is a man who minds his own business; we say that he has no business here at all.”

The study of the subcontinent’s history using archival material is crucial to disentangle difficult problems like the Jammu & Kashmir issue or the border problem with China. Yet today nobody can access independent India’s primary sources locked in South Block and North Block in New Delhi. Most bizarrely, Jawaharlal Nehru’s papers are under control of his descendants like Priyanka Vadra and Sonia Gandhi, who claim copyright. Someone may need to tell them there is a universal principle that there can be no copyright on the public life-work of historical figures like presidents and prime ministers.