Time for ‘legal diplomacy’

IT was 2016. We at RSIL routinely studied all major disputes and issues between India and Pakistan — Kashmir, Sir Creek, Siachen, the Indus Waters Treaty, Samjhauta Express, Babri Masjid, Junagarh, etc.

Each issue had a dominant legal dimension that required sustained research. Following the Mumbai attacks in 2008, bilateral bitterness was still on the rise as the trials of suspects Zia ur Rehman Lakhvi on the Pakistani side and Ajmal Kasab in India were not well managed. Both states, instead of cooperating, were actively denying each other access to the suspects, the investigation and even the cross-examination of witnesses.

That’s when team leads Jamal Aziz and Awais Anwer discussed a potential workshop for suggesting ideas on law-enforcement cooperation to both governments. The growing distrust between two nuclear neighbours was the direct result of poor progress in the legal proceedings following terrorism cases on both sides of the border. It led to the idea of a workshop on improving Pakistan-India ties through ‘legal diplomacy’, a term we coined. The then foreign secretary Aizaz Ahmed Azar showed interest in the idea and conducted the session. Attorney general Ashtar Ausaf joined as special guest. There were participants from various ministries and security set-ups. We insisted that representatives from the Indian High Commission attend as well. After some back and forth, an invite was extended and the Indian High Commission sent two senior officials to attend.

But ‘legal diplomacy’, though lauded as a concept by the participants, didn’t see the implementation of several of its recommendations. One major recommendation was to strengthen cooperation for terrorism cases between Pakistan and India through non-diplomatic channels as well — direct police-to-police cooperation as required under UN law (Resolution 1373).

It’s a done thing in advanced jurisdictions where countries assist each other in law-enforcement cooperation. Had cooperation followed incidents like Pathankot, Uri and Pulwama, there would have been investigations within an agreed framework and India would have had no excuse to strike Balakot in 2019 and end up losing aircraft with one pilot taken prisoner. If law-enforcement cooperation functions bilaterally then no need arises for resorting to the unilateral use of force including targeted strikes. Both states are to be blamed for the lack of such cooperation — although each for reasons of its own.

Likewise, the most appropriate move in the 2025 Pahalgam incident in occupied Kashmir should have been guided by the FIR registered in Pahalgam, with the Indian side requesting help in investigation under Section 166 A of the Indian Criminal Procedure Code and invoking Section 19 of Pakistan’s Mutual Legal Assistance Act, 2020 — a law that enhanced Pakistan’s stature as a responsible state. Read with obligations contained in UN Resolutions 1267 and 1373, the law would have made it incumbent on Pakistan to respond.

Adopting the legal approach will help Pakistan and India see that what they demand from each other is what the law obligates them to do.

But India did not write the letter requesting an investigation. Had it done so, a formal investigation would have ascertained the nationality of the perpetrators, and whether or not the state in Pakistan was involved, as was being alleged by India. Conversely, a formal probe could have investigated and found answers to Pakistan’s strong suspicion that Pahalgam was a false flag operation staged by the Indians.

Instead, India decided to fire missiles at Muridke and Bahawalpur. The result was the tit-for-tat military action from May 6 to 10 last year, which involved drones, aircraft and missiles — combat which saw the loss of several Indian aircraft including Rafales. The resort to unilateral use of force instead of a law-enforcement approach cost India dearly and its military and political stature took an embarrassing hit.

What legal diplomacy means in this case is that both India and Pakistan should institutionalise police-to-police cooperation. The legal approach will make both countries realise that what they demand from the other is more or less what the law obligates them to do.

One suggestion that received positive feedback at that workshop in 2016 was the formation of a regular group of legal experts that could be notified by the attorney general in each country, meet on the sidelines and examine the legal aspects of major bilateral issues including Kashmir, Sir Creek, Siachen and the transit of goods. Such a group could suggest verbally or on paper the various options for a legal solution.

It was realised that even if a breakthrough like the then prime minister Atal Bihari Vajpayee’s bus ride to Lahore or Narendra Modi’s arrival at Jati Umra or Gen Pervez Musharraf’s visit to Agra provided rare openings for normalisation, the legal complications associated with each long-standing dispute could cause obstructions or delay matters to the point where the opportunity could be lost — government change, or a terrorist incident, or domestic hawks derailing the normalisation effort.

Pakistan has emerged as a much more responsible state by distancing itself from irresponsible non-state actors. Its legal machinery is better geared today. It has extended training for capacity building in areas of mutual legal assistance and money laundering to numerous batches of law-enforcement officials.

Pakistan’s Mutual Legal Assistance Act demonstrates a legislative readiness to entertain and process any request not only from India but from any state. It has already processed requests from multiple European states. The Indian side still doesn’t have any stand-alone MLA. This is a rather shocking omission and lowers the credentials of the government in New Delhi.

In conclusion it can be stated that in following the hawkish Ajit Doval doctrine of “defensive-offence”, one would be taking a dangerous ‘war approach’, instead of the ‘law-enforcement approach’, in response to an act of terrorism.

The recent statement of an RSS official that “we should not close the doors” shows a positive turnaround in thinking. But still, the door remains closed by New Delhi, when, in fact, it is India, and not Pakistan, that must formally end the state of war and revive the Indus Waters Treaty.

The writer is a former caretaker federal law minister and a public international law practitioner.

Published in Dawn, May 17th, 2026