Research Society of International law RSIL

The Case for Legal Diplomacy

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Ahmer Bilal Soofi, President, RSIL

Edited by Jamal Aziz, Executive Director, RSIL

The contemporary world order has profoundly altered the traditional notions of effective conduct of diplomacy. Today, intelligent state-craft includes strategic use of new and creative forms of diplomacy to settle disputes in the international system and achieve foreign policy objectives.

Now consider, for example, the current diplomatic impasse between India and Pakistan. For quite a while, India has been insisting on restricting the agenda of any bi-lateral dialogue with Pakistan to only ‘cross-border terrorism’ issues while Pakistan favours a more comprehensive dialogue framework which also includes talks over the Kashmir dispute. These are essentially well defined political agendas. But, despite some degree of personal comfort between Prime Ministers Nawaz Sharif and Narendra Modi, the traditional bi-lateral channels of diplomacy remain log-jammed. Moreover, the various Track II dialogues involving retired military and civilian officials, prominent professionals and esteemed members of civil society from both the countries have not made much headway either. The attempted political matchmaking by informal envoys including former diplomats, businessmen and others has also not borne any fruit.

Given this context and the avowed Indian attempts to isolate Pakistan diplomatically, the one thing that we have not yet tried is ‘legal diplomacy’, i.e. a structured legal approach towards improving our foreign relations and realizing our foreign policy goals through the prism of relevant domestic and international laws.

In the remainder of this article, we make the case for Pakistan to also actively engage in legal diplomacy not only to find acceptable solutions to our problems with India but to incorporate the same more broadly as an integral and permanent approach in the conduct of our foreign relations.

The fact that Pakistan has not yet resorted to legal diplomacy vis-à-vis India is quite surprising, given that the long-standing thorny issues between the two countries including Kashmir, Siachen, Sir Creek, water etc. are all matters within the purview of international law as well as the domestic laws of the two states.

The more recent issues between Pakistan and India also involve extensive legal propositions and processes. This includes the slow progress on the Mumbai trial in Pakistan and Samjhauta trial in India, the Pathankot and Uri investigations and of course the Kulbhushan Yadav case.

Notably, many if not all of these issues constitute an independent and a separate case on which different teams of lawyers and investigators on both sides are independently working and strategizing on without consulting one another. This lack of coordination has inevitably led to a blame game with each side accusing the other of protecting its interests mainly through trial and investigation delays.

These recent matters between India and Pakistan are, in fact, representative of transnational crime scenarios where the crime of terrorism has been conspired in one jurisdiction and executed in the other. Some instances also involve links with third countries. Several different courts, therefore, are, or will be involved in almost all the said cases. The criminal law of both the states will be invoked. The law of evidence, with all its qualifiers, will be used for investigation and collection of evidence, whereby evidence must be transferred through a formal legal process to make it admissible before the courts of law. With trial witnesses physically scattered in two different jurisdictions, the attendant issues of recording their testimony and cross-examining them will need to be sorted. Moreover, there are outstanding differences regarding the legal basis and manner of the collection of intercepted calls and voice samples, and lingering issues such as the legal consequences of filing a Chalan on the basis of half-baked investigation need deliberation.

Given all these legal complexities, it is perplexing that officials in India and Pakistan investigating these matters have never interacted with each other to match their notes or share evidence collected during their investigations with one another in joint investigation meetings.

In the Mumbai case, the prosecutors from both the countries have never met each other, whereas, for a trans-national crime being tried in two different jurisdictions, preliminary meetings of prosecutors would otherwise be a certainty so as to divide the scope of the prosecution and the charges as well as the suspects for indictment. At the diplomatic level, the ‘cooperation’ in the Mumbai case has thus far been used as a smoke-screen for score-settling rather than for sorting the various legal complications involved in the case. In this context, the dossiers handed over to Pakistan’s High Commissioner by India were all actually inadmissible and of no worth before a court of law. Yet, this has been erroneously drummed up as a situation where although Pakistan has been provided with everything that it needs to convict the suspects, it is not doing enough on its part.

To be fair, the Pakistani side has also not been able to understand the complexities of this case and explain the reason behind the delays nor taken effective steps to redress the problems.

Notwithstanding their intellectual prowess in general, diplomats are not lawyers. In all fairness then, we should not expect them to grasp the subtleties of the various legal processes, especially at the trial level, which is generally considered as the most technical and highly confusing area of law even for seasoned practicing lawyers.

Of course, there is a political dimension to several aspects of the Mumbai case which our diplomats are trained to handle. But, at the same time, the legal steps that are required to be taken cannot be exempted from. What crucially needs to be understood by diplomats on both sides is that if the evidence received from the other state is not court-worthy, then the state cannot, through some executive miracle, make it admissible to force a conviction merely to satisfy the sentiments of the other state. It is simply impossible for a state to guarantee an outcome of a trial because it cannot, and should not, influence the independent functioning of its judicial process in deference to the rule of law.

Kulbhushan Yadav’s case, in legal terms, is representative of an intervention by a state actor in a neighboring state for which, subject to evidence, India as a state will bear responsibility under international law. This is so because Yadav’s acts are legally attributable to his employing entity, which is the sub-set of the Indian Government. The Draft Articles on State Responsibility, a binding international law instrument, are clear about this.

On the other hand, in the cases of Mumbai, Pathankot, and Uri, the offenders are neither state actors nor officials, but non-state actors, who conducted unauthorized and unlawful acts. Importantly, even though nationality is not the basis of responsibility in international law, Pakistan still continues to bear the responsibility of prosecuting them properly as a consequence of its international law obligations flowing from the United Nations Security Council Resolution 1373.

In this context, it is unfortunate that through traditional diplomacy alone, Pakistan has been unable to put across to the world the story of its prosecution of the Mumbai incident in particular despite undertaking several legal steps. These steps by the state of Pakistan include beefing up its prosecution team, designating a special judge for the trial who conducts hearings far more frequently than in ordinary cases, and contesting the request for relief by the suspects at every stage. Moreover, the state opposed the suspects’ bail applications and if not for this opposition Zakiur Rehman Lakhvi may have been released on bail in the very first year of trial because the evidence presented by the Indian side was insufficient to prevent it.

The state’s message is clear – Pakistan stands distanced from non-state actors and their irresponsible and unauthorized acts. Crucially though, this message will be better understood by the world community if Pakistan augments traditional diplomacy with legal diplomacy that will enable the state to properly document and present the various legal steps undertaken by it in the Mumbai case.

Legally speaking, Mumbai, Pathankot, Samjhauta and Yadav issues remain trials and cases. Therefore, in all these cases, I suggest the need for both the states to embark upon legal diplomacy, where they can communicate with each other in legal terms, in the language of the procedure, and move forward wholeheartedly for bringing the perpetrators in these cases to justice.

The ambit of Pakistan’s legal diplomacy need not be restricted to India-Pakistan issues. Our foreign relations with the United States can also be strengthened by engaging with Washington in dispassionate legal terms. Issues such as drone strikes and compensation for the victims of these strikes, the reimbursements due to Pakistan under the Coalition Support Fund, the procurement of sensitive defense equipment like the F-16s and the recently enacted Justice Against Sponsors of Terrorism Act (JASTA), all involve intricate questions of international law as well as domestic law of the United States. Pakistan, therefore, cannot effectively achieve its objectives with respect to these issues without complementing its traditional diplomacy with legal diplomacy.

Post-9/11, the United Nations Security Council has become a global legislative forum of sorts by passing a series of binding resolutions on counter-terrorism such as UNSC 1267 and UNSC 1373. This has necessitated the use of legal diplomacy at the United Nations as well.

Legal diplomacy can also bring internal clarity and harmony between the different state institutions and the federal and the provincial governments on the treatment of non-state actors by providing them a common legal agenda that will prevent them from buck-passing or engaging in a counter-productive blame game.

For all of the foregoing reasons, it is simply a necessary need of the hour for Pakistan to actively engage in legal diplomacy on all the fronts discussed in this space.

Research & Consultancy Services

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RSIL offers comprehensive legal research and consultancy services to a wide variety of clients both within Pakistan and abroad. Our clients have included Federal and Provincial Government departments, statutory bodies, UN bodies, international & regional organizations, non-governmental organizations, as well as universities and other research entities. In relation to Legal Reform Projects, our services span the entire range of the project lifecycle and include:

  1. Conducting research as part of the inception, designing and planning of large scale public sector reform projects;
  2. Implementing legal reform projects:
    1. Scoping studies;
    2. Mapping: Systems, Organizational, Stakeholder, and Processes;
    3. Desk reviews involving legislative analysis, case law reviews, policy evaluation, gap analyses, and needs assessments;
    4. Stakeholder Consultations – Key Informant Interviews/Meetings, Focus Groups/Workshops, Surveys & Opinion polls, Written responses, drafting and circulation of Green Papers, etc.
    5. Reports and White Paper drafting;
    6. Identifying appropriate vehicles for reform – Policies, Legislation, Rules, Regulations, Statutory Regulatory Orders (SROs), Notifications, Standard Operating Procedures (SOPs), etc.
    7. Legislative drafting and commentary;
    8. Legislative guidance documents for Parliamentarians, Government officials, and members of civil society; and
    9. Capacity building and training of stakeholders.

International Law:

RSIL’s unparalleled expertise in Pakistan in the field of International Law allows it to offer a wide range of services to both State and non-State clients. These services include:

  1. Rendering assistance in the negotiations of bilateral and multilateral treaties and conventions.
  2. Conducting gap analyses and needs assessments;
  3. Compliance reviews of existing State practice and legislation for compatibility with international treaties and customary international law;
  4. Drafting implementing legislation for international treaties and conventions;
  5. Monitoring of domestic law to determine continued compliance with an international instrument;
  6. Developing standards, benchmarks, and indicators to meet Pakistan’s international obligations;
  7. Interpretation of compliance with United Nations Security Council resolutions;

 

Areas of Specialization:

RSIL’s research and capacity-building personnel have a broad range of specializations in international as well as domestic law. The following is a non-exhaustive list of areas RSIL has capacity in:

  1. Public International Law
  2. Private International Law
  3. Human Rights Law
  4. International Humanitarian Law
  5. Counter-Terrorism and National Security Law
  6. Environmental Law
  7. Trade & Investment Law
  8. Intellectual Property Law
  9. Nuclear Law
  10. Constitutional Law
  11. Criminal Justice
  12. Juvenile Justice
  13. Electoral Laws

International Law Training Centre (Capacity Building)

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One of RSIL’s core functions is to enhance the capacity of members of the domestic and international policy making community. This includes, jurists, judges, legislators, bureaucrats, diplomats, and many others. From its formation. RSIL has consistently sought to educate the nation on the role that international law plays within a state’s legal framework.

Keeping in mind the organic expansion of RSIL, it became necessary for us to create a dedicated platform with a wide range of audiences who wish to receive training in areas of national and international importance.

To this end, in June 2016, Mr. Ahmer Bilal Soofi, President RSIL established a new division within RSIL, the ‘International Law Training Centre’ (ILTC). The primary objective of the ILTC is to improve the capacity of key actors in the Government, diplomatic, development and legal communities. A secondary but no less important goal is to conduct legal workshops, seminars, courses and trainings on national and international law for students, teachers, journalists and lawyers etc.

RSIL has access to accomplished trainers, both in-house and external consultants who have a vast variety of specialties and training styles. Additionally, the ILTC has a dedicated team managing its affairs, including logistics and other such details.

RSIL’s Islamabad Office has a purpose specific space in which to conduct trainings, workshops and smaller conferences. The Training Centre can accommodate up to thirty-five participants comfortably.

Since its inception, the ILTC has, thus far, organized and conducted several events which have met with utmost success. We at RSIL are confident that the ILTC will serve as a major platform in bringing about legal awareness; both in terms of international law and its impact on the Pakistani legal landscape.

Conflict Law Centre at RSIL

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The Conflict Law Centre at the Research Society of International Law, Pakistan was established in September 2015 with the aim of studying Pakistan’s domestic law applicable to situations of armed hostilities and enhancing the capacity of State actors in relation to the State’s international legal obligations under International Humanitarian Law (IHL). Against the backdrop of several internal military operations to counter militancy and terrorism in the country, it was felt that a dedicated research unit was urgently needed to assess the effectiveness of domestic law. This included exploring the Constitutional mandate afforded to the Armed Forces of Pakistan under the rubric of Article 245 in relation to ‘actions in aid of civil power’, as well as law enforcement powers available under Pakistan’s counter-terrorism laws.

The on-going fight against terrorism and militancy in the country raises interesting questions in relation to the extent of powers of the Armed Forces and Civil Armed Forces, whether deployed in the Federally or Provincially Administered Tribal Areas of Pakistan (FATA/PATA) or in urban centers of Sindh and Punjab. The Centre’s research has focused on issues concerning the determination of the status of hostilities in particular regions, the application of human rights in such contexts, the legal treatment of fighters, issues of preventive detention, cyber warfare, Air Combat Operations, the establishment of military courts, the role of the judiciary in adjudicating upon issues of armed conflict and terrorism, protection of health care professionals, as well as a range of other issues concerning the application of IHL in Pakistan.

The Centre’s research has been published both independently as well as in collaboration with the International Committee of the Red Cross (ICRC). The following is a list of previous publications by the Centre:

1) The Legal Implications of Adopting a Conflict Paradigm.
2) Understanding International Humanitarian Law: A Primer on IHL and Pakistan’s Domestic Law.
3) Preventive Detention: A Guide to Pakistan’s Operations.
4) Manual on Targeting in Air Combat Operations during Non-International Armed Conflicts.
5) Human Rights and Pakistan’s Counter-Terrorism Legislative Landscape.
6) Towards Protecting Health Care in Karachi: A Legal Review.
7) Benchbook on International Law for the Judiciary in Pakistan.
8) Handbook on Police Law and Criminal Procedure.

The Centre is headed by Director, Muhammad Oves Anwar, with research teams based in RSIL’s Offices in Islamabad and Lahore.

For further information please visit: www.rsilpak.org or email Mr. Oves Anwar, Director, CLC at: ovesanwar@rsilpak.org

Specialized Advisory

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While primarily a research institution, RSIL’s close collaboration with President RSIL, Ahmer Bilal Soofi’s law firm – ABS&Co., lends unique depth to the range of services offered to clients. In this regard RSIL’s Specialized Advisory Division operates as a more traditional law firm for our governmental and international clients rendering legal services in the form of legal opinions, negotiations support, drafting of agreements, and representing clients at various domestic and international fora. RSIL has supported the Government of Pakistan at the United Nations in Geneva, before the International Court of Justice (ICJ), the International Centre for the Settlement of Investment Disputes (ICSID), and arbitrations at the International Chamber of Commerce.

Our international outlook and expertise in domestic affairs, allows us to offer our clients situational reports on specific developments. These can be event specific reports assessing the impact of these developments at the domestic level as well as more regular reports outlining the evolution of particular phenomena and their influence in Pakistan.

In particular, RSIL supports international donor driven programs by advising on the Constitutionality and otherwise legal viability of interventions and proposals. This has become especially significant since the passing of the 18th Amendment to the Constitution of Pakistan and the subsequent devolution of numerous competencies to the Provinces.

In relation to the China-Pakistan Economic Corridor (CPEC) and its ever-growing significance, RSIL is uniquely placed to offer investors and businesspersons advice in the area of investment law and Pakistan’s regulatory framework.

If you would like to engage RSIL’s services please contact Mr. Jamal Aziz, Executive Director – RSIL at jamalaziz@rsilpak.org