Home Aftermath of Uri- Lex Talionis or The Law of Retaliation

Aftermath of Uri- Lex Talionis or The Law of Retaliation

As per the Dawn newspaper of Pakistan, on the morning of 29 Sept 2016 the Indian army carried out cross border firing from 2 AM to 8 AM. India at the same time has confirmed that Pakistani launch pads for terrorists to be pushed into J&K had been attacked at seven places successfully, a claim that so far Pakistan has refuted. This is Lex talionis or the ‘Law of Retaliation’ which India had said it would execute at a time and place of its choosing to retaliate/ avenge the attack in Uri which killed 18 of our soldiers. The English word talion (from the Latin talio) means a retaliation authorized by law, in which the punishment corresponds in kind and degree to the injury. On TV the Indian DGMO reporting on the strikes said that these were successful, had targeted terrorists and will not continue. It remains to be seen whether this retaliation which makes a visible impact succeeds in reining in Pakistani support for terrorism. In all likelihood it may not unless the situation escalates in a tit for tat action leading to an all-out war. In the eventuality that the military action de-escalates, the next step in executing Lex Talionis are three diverse actions that are being contemplated.

The Times of India, Hyderabad Edition of 28 Sep 2016 had carried on page 12 (Times Nation) three news items which pretty well summed up India’s evolving strategy with respect to these manifestations of Lex talionis. All three news items referred to three approaches short of war. These are being articulated and discussed at the highest level and are now being dissected by various analysts for their advantages and disadvantages. They also have their detractors as well as supporters.

The first item was ‘ MFN Status to be another small cut to Bleed Pakistan’. This article does not want to explain what MFN means or when it was granted by India to Pakistan. Suffice to say that we had granted ‘Most Favoured Nation’ status to Pakistan 20 years ago. Pakistan has been considering granting it to India for the same length of period and so far, has not granted it to us. The articulated Pakistani reason is that it will flood Pakistan with Indian goods and hurt its domestic industry. The situation would be the same as India’s grant of MFN to China (and vice versa) in 1984. It has flooded India with Chinese goods (as Chinese goods have flooded most of the free trading world). It has also made China our largest trading partner in goods. It does give us an adverse balance of payments, but it has also goaded our protected market to be more competitive. Lastly, it brings affordable goods to our people. Our granting MFN to Pakistan means that it helps their market to export to India. That is a different matter that their output being uncompetitive still leads to an adverse balance of payments for Pakistan in the miniscule trade which goes on between us. Yet we had a panellist on a news channel stating that we should not revoke the MFN status that we have granted to Pakistan because it will hurt us more than Pakistan as we export 79% more to Pakistan than they do to us. It was rightly brought out by another panellist that that 79% translates to 0.4 % of our foreign trade an amount of approximately US $2 billion.  Even if the revocation of MFN status is just symbolic, and even if it does make a minor dent in our foreign exchange, it is a step worth taking than doing nothing. The lives of our 18 soldiers (and maybe more in the future) are definitely worth much more than $ 2 billion.

The second item was ‘Bugti Plea sent to IB, Final call Rests with Cabinet’ The media is unanimous in supporting the PM’s initiative in getting vocal in support for the Baluch freedom movement in Pakistan. The Pakistani media says that India has in the past also fostered trouble there covertly. Even if that be correct, it is desirable realpolitik to pay Pakistan in the same coin by overtly giving the sort of support to Baluchistan that Pakistan says it gives in Kashmir i.e moral and diplomatic. Once a reasonable number of Baluchis are in India then maybe our civil society and NGOs will also give them the sort of support that Pakistani civil society and NGOs (LeT, JeM etc) are giving to militants in Kashmir.   

The third item was ‘Delhi’s Revocation of Indus Treaty would be an act of War: Pakistan’. Firstly, the manner in which Pakistan is bleeding us is nothing short of war. So, for Pakistan to threaten war in case we revoke the treaty gets nothing new to the table. Again one of the so called ‘peaceniks’ on a debate on national TV said that she does not support revoking the treaty as the poor people of Pakistan will suffer (for no fault of theirs). Is it no fault of theirs?  Another debater, a former Union Water Resources minister stated that we should not revoke the treaty otherwise China can cut off our water. Coming from a former Union water resources minister this was an uninformed statement. China cannot abruptly cut off the water, in the same manner that we also cannot shut off the water to Pakistan as if we were closing a faucet. Only two rivers of the Indus basin rise in the Tibet region of China, the Indus and the Sutlej. Jehlum, Chenab, Ravi and Beas all have their source exclusively in India. The flow of the Indus from China is not its sole source of water. The Zanskar river which flows wholly in India gets more water to the Indus Main when it meets the Indus short of Nimu. After approximately 120 kms (as the crow flies) from Nimu, the Indus flows into Pakistan occupied Kashmir. Because there is practically no scope of diverting the waters of the Indus in Ladakh, even if China could divert the Indus in their area the direct impact will be on Pakistan not India.

The Sutlej has 70 % of its catchment area in India. The bulk of its water flow is during the monsoons so the Bhakra-Nangal and and Nathpa-Jhakri Dams will not dry up even if China can reduce the flow of the Sutlej from its source, which is a tall order. Glacier-fed rivers with perennial flows are important where no dams exist to store the monsoon water for use in the dry season. The honourable ex-minister may have also been referring to China diverting the Brahmaputra, an unfounded scare which had been hyped some years back. For more on that readers may revisit an article on the subject at http://www.claws.in/1439/cry-wolf-a-perspective-on-the-brahmaputra-water-war-ghanshyam-katoch.html

Water is an emotive issue, and Pakistani politicians have been shouting hoarse how India just cannot repudiate the 1960 Indus Waters Treaty. Obviously we are aware of our standing in the world as a responsible nation. In case we repudiate it, we will do it with due recourse to the provisions in the treaty. No treaty is immutable. Para 2 of Article XI of the 1960 Treaty (General Provisions) states that “Nothing in this Treaty shall be construed by the Parties as in any way establishing any general principle of law or any precedent”. If India has to terminate the treaty it will do that like a responsible nation under the provisions of the 1969 Convention on the Law of Treaties or any such legally correct route. Saying that the treaty has been very successful so we should let the status quo continue even if it offers us options to put pressure on Pakistan to not wage proxy war against us is naïve advice. Can we shut off Pakistan’s water? Well, we cannot do that completely. Of all the three Western rivers given to Pakistan through the Indus Waters Treaty it is only the Chenab water whose flow we can reduce or divert substantially. Even that will take extensive engineering work and time. Pakistanis will not become a desert by some diversion of the Chenab, but it will definitely hurt it.

The effect of all the three measures given above will take time. But they will give more tangible results for the application of Lex talionis than covert operations. Covert operations can punish but may not deter enough to change behaviour unless they escalate to a decisive war.


The author is a former Director-General Perspective Planning of the Indian Army. The views expressed are personal.

References
  1. The Indus Waters Treaty 1960. Retrieved 29 Sep 2016 from http://siteresources.worldbank.org/INTSOUTHASIA/Resources/223497-1105737253588/IndusWatersTreaty1960.pdf
  2. Web site The Embassy of India, Beijing, China at http://www.indianembassy.org.cn/DynamicContent.aspx?MenuId=3&SubMenuId=0
  3. Web Site High Commission of India, Islamabad at  http://www.india.org.pk/
  4. The Food and Agriculture Organisation of the United Nations. Data of Indus basin at http://www.fao.org/nr/water/aquastat/basins/indus/index.stm
  5.  Information of the Sutlej River. Retrieved 29 sep 2016 from http://www.indovacations.net/english/Sutlej-River.htm
  6. Vienna Convention on Laws of Treaties, 1969. Retrieved 29 Sep 2016 from http://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf
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